Anthony, SC. Shaken Baby Syndrome: What To Do If You`re Wrongly

Shaken
What to Do
If You’re
Wrongly Accused
Susan C. Anthony
To know is one thing. Merely to believe one
knows is another. To know is science, but
merely to believe one knows is ignorance.
—Hippocrates
Permission is granted to freely copy this information
and share with people who have been falsely accused,
their attorneys and/or supporters. Permission is not
granted to copy and sell. The purpose of the book is
to provide general background information to those
who need it. Nothing herein is to be taken as legal or
medical advice. Consult qualified professionals for
assistance with your specific, unique situation.
Corrections or comments?
Contact: Susan@SusanCAnthony.com
Contents
Why this Book?.......................................................................1
First Things First: Do Not Waive Your Rights!......................7
Sidelight: What’s in a Name?........................................16
What They Think You Did....................................................17
The Darkest Day...................................................................25
Shaken Baby Syndrome: An Evolving Theory.....................33
What Can You Do?...............................................................45
How Can I Afford This?........................................................53
Your Savior, a Good Attorney...............................................59
The Attorney’s Assistant: YOU.............................................76
What to Tell Others...............................................................79
Criminal Justice in the United States....................................87
Bureaucrats and Bureaucracies: The Legal Process.............95
The Long Wait: Life in Limbo...........................................102
Diagnosis Murder................................................................105
Sidelight: Are You Responsible?.................................116
Police Investigation: Why Suspect Me?............................117
Interview, Interrogation, Inquisition...................................129
To Polygraph or Not to Polygraph......................................135
Autopsy...............................................................................141
What Are the Charges?.......................................................151
Grand Jury: Surely They’ll See the Truth!.........................153
Jail or Bail?.........................................................................155
Sidelight: False Accusations Are Costly.....................158
Plea Bargaining: Let’s Make a Deal..................................159
What Did Happen? Common Defense Theories................169
Simple Falls Aren’t Always Simple....................................173
A Matter of Timing.............................................................178
Misdiagnosis Murder..........................................................185
Challenging the Admissibility of Evidence........................197
Circumstantial Evidence.....................................................203
Sidelight: Child Protective Services (CPS).................206
Character Witnesses............................................................207
Expert Witnesses.................................................................211
At Long Last, the Trial........................................................221
When the Verdict’s Read.....................................................239
Guilty! Sentencing Considerations....................................249
Sidelight: In Civil Court..............................................256
Never Give Up: Appealing the Verdict..............................257
Prison: Making the Best of the Worst................................263
Moving On..........................................................................274
Definitions...........................................................................281
Illustration: Parts of the Eye.......................................289
Illustration: Layers of the Brain..................................290
Illustration: Nerve Cell...............................................290
Checklist: What a Medical Expert Needs..........................291
Links and Resources...........................................................293
Index...................................................................................302
QuickList.............................................................................304
Note: Personal pronouns are a challenge for every writer. For
consistency, I used pronouns relating to the case most important to
me, Margie’s. Defendant is she. Baby is he. Defense attorney is
he. Prosecutor is she. And so on. Alter to fit your own situation.
Why This Book?
God grant me the serenity to accept the things I cannot change,
The courage to change the things I can,
And the wisdom to know the difference.
O
n January 15, 2009, U.S. Airways Flight 1459 took
off from New York’s LaGuardia Airport, bound
for Charlotte, North Carolina. Just three minutes after
takeoff, the plane passed through a flock of birds, some
of which were sucked into its jet engines. Both engines
were disabled; one caught fire. In eerie silence, the plane
descended into densely-populated New York City.
The pilot-in-command, Chelsey Burnett “Sully” Sullenberger III, later described the moments before the crash as “the
worst sickening, pit-of-your-stomach, falling-through-the-floor
feeling” he had ever experienced.
Despite the terror, both pilots kept their cool and retained
their professionalism. They quickly assessed the situation and
evaluated the options. The plane was dropping too fast to return
to LaGuardia. A crash into the city could kill hundreds. As the
other pilot attempted to restart an engine, Captain Sullenberger
decided that the best place available to set the plane down was
the Hudson River. The plane cleared the George Washington
Bridge by less than 900 feet. The captain told his passengers,
“Look, we’re going down. Brace for impact.”
For the first time in 50 years of commercial jet flight, a
jetliner was landed on water without a single fatality. The
incident was a disaster, but imagine how much greater a
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disaster it would have been had the pilots panicked, given up, or
despaired! Clear thinking in an emergency saved lives.
Pilot Sullenberger did what pilots are trained to do. He flew
the plane to the ground. Although he’d lost most control over
the ship, he hadn’t lost all control. He used the little control
that remained to mitigate the disaster in order to achieve the
best possible outcome under the circumstances. Later, he
experienced fear and flashbacks, but under fire, he was cool and
composed, a true professional. History hails him a hero.
If you or someone you love has been falsely accused of
shaking or abusing an infant, especially if the child died, a
disaster is unfolding before you. You have lost much control
over your life and future. But you have not lost all control.
What you do, especially in the first hours and days after an
accusation, can affect the final outcome of your case. No
training programs exist to prepare people for false accusations,
but you are not alone. You are not the first person to travel the
path. You can learn from others who preceded you.
Fly the plane to the ground. Stay mentally engaged. Don’t
allow emotions to cloud your reason, cause you to panic, or
tempt you to despair. Do what you can. You do not know how
this will end. Try not to imagine worst-case scenarios. Focus
on the present, not the uncertain future. Learn to live in limbo.
Let the serenity prayer be your guide. In the days and
years ahead, you will need extraordinary serenity, courage
and wisdom. This book will address how to change the things
you can (what to do). Later, I hope to write about how to find
serenity to accept the things you cannot change (how to cope).
Why Do I Care?
Many years ago, someone I love was falsely accused
of shaking a friend’s baby. We were stunned. Margie was
extraordinary with children. In ten years of teaching public
school I’d never met a parent more serene, patient and loving
with kids—all kids, not just her own. She seemed born to be
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a mom. Nothing delighted her more than to be with children.
They were drawn to her and flourished under her care.
A friend from church approached Margie about watching
two preschoolers, a girl (2) and a baby boy (6 months) while
she, the mother, worked. The kids were about the same ages as
Margie’s and were good playmates. After careful consideration,
Margie agreed to baby sit. Before beginning, she fulfilled all
requirements and became licensed to provide in-home day care.
Over time, she became increasingly concerned about the
children’s home life. Nothing definite, but small things—
troubling things. At the children’s house, she saw an older
brother walk by the baby’s crib and slap him. Once an older
sibling ran several blocks to Margie’s house and begged her
to come help. Five children were home alone; one had been
injured. The mother was evasive when questioned. Margie’s
uneasiness grew as she came to realize the children were often
left alone. She lost sleep over the situation. What to do?
Eventually she gave the mother notice that she wanted to
terminate the arrangement. But the mother begged. “Please,”
she said. “There’s no one else I trust. You treat them as though
they’re your own. They love you!” Margie relented. Whatever
else was happening in the children’s lives, she knew they were
safe, happy and cherished during the hours they spent with her.
One fateful day, the baby arrived asleep. He didn’t wake on
his own as usual and seemed lethargic after Margie awakened
him. He’d been vomiting for a few days. His mother said he’d
been up late the night before. In the afternoon, he fell a short
distance and screamed more than usual. Later, while being
changed, he had a seizure. His breathing became labored. He
went limp. At the hospital, a doctor mentioned Shaken Baby
Syndrome. On those three words, the futures of dozens of
innocent people, most especially Margie’s precious and utterly
innocent 3-year-old son and 7-month-old daughter, turned.
I well remember my shock and denial. The chance of her
being named “Mother of the Year” seemed infinitely greater
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than the chance of her being accused of harming a baby. She
was accused, nevertheless. Three years and two trials later she
was convicted of manslaughter and sent to prison.
Thankfully, as of this writing, Margie is home. Her kids
are thriving in an intact and loving home. She and her husband
“flew the plane to the ground” with minimal lasting damage.
It was difficult to stand by helplessly, watching the disaster
unfold. I began to learn everything I could. Knowledge is
power. What is Shaken Baby Syndrome? How did doctors
determine that shaking caused the baby’s death? Why was the
baby’s family never investigated, even after the mother admitted
lying to police and two grand juries? What, if anything, could I
or anyone else do to help, or to prevent future injustices?
Now, after ten years of research, I am certain that not just
Margie, but hundreds of innocent people have been wrongly
accused, tried and convicted for supposedly shaking babies.
This is not to say it is safe to shake babies! Let me be clear
from the outset. Never, never, never shake a baby! Not even in
play. Take special care to always support babies’ heads.
That said, let me be equally clear. Never, never, never
say you shook to revive, jiggled, wiggled or bounced a baby
who later became unresponsive. Such statements have been
interpreted as admissions to violent criminal assaults.
Never talk to authorities at all without an attorney present.
You are in a legal minefield. Do nothing until you consult an
attorney, who can help you locate the “mines.” Don’t grant
police an interview if you sense you’re a suspect, especially if
you have nothing to hide. Don’t talk to CPS. Don’t even talk
to doctors if you suspect they suspect you. Politely and calmly
request to see an attorney, again and again if necessary, like a
broken record. It need not be the attorney you will hire for the
long term. No matter how scared you are, say nothing. Set your
mind on what you know to be true. At most, state again and
again and again and again, calmly, “I did not hurt the baby.”
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Why I Believe Many Shaken Baby Allegations are False
In addition to stacks of medical articles, I have read
hundreds of legal appeals and thousands of newspaper articles
concerning allegations of “Shaken Baby Syndrome.” Patterns
have emerged that raise these questions:
• Why do so many caretakers, all over the world, having no
contact with each other, tell such similar stories about what
preceded the child’s collapse?
• Why do so many suspects pass polygraphs?
• Why do so many defendants have in common an excellent
history and character?
• Why do so many refuse to plea bargain?
• Why are so many accused of not showing remorse?
• Why do so many elect not to give the jury an option to
convict on lesser included charges?
• Why do so many who have been convicted appeal?
• Why do so many continue to deny wrongdoing even after
conviction, when they have nothing to lose and could
actually benefit by being granted earlier parole?
Most of us know that hundreds of men have been exonerated
of rape and murder thanks to breakthroughs in DNA technology.
How could those men have been convicted in the first place, in
fair trials, by people who were convinced beyond a reasonable
doubt that they were guilty? Clearly, America’s justice system
is not perfect.
I do not know if you or the accused person in your case is
innocent or guilty. That person alone knows for certain. If it’s
you, please listen to your conscience. If you did anything that
hurt the child, be honest and admit it (to your attorney, not the
police). Accept a plea bargain and ask the judge for mercy.
Ironically, people who confess to abuse are often treated much
more leniently than those who insist they are innocent!
If you know you are not guilty, this book is for you. It is
my civic responsibility to oppose injustice and do what I can for
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those who have been wrongly accused. Nothing can change the
tragedy of a baby’s death or serious injury. But two wrongs do
not make a right. Depriving innocent children of an innocent
parent, perhaps their breadwinner, is wrong. Justice must be the
shared goal of everyone who cares about children.
My objective is to get you “up to speed” on what you need
to know so you can navigate the rough road ahead of you
with minimum permanent damage. I hope to supply useful
background information and place your situation in context
so you can make sense out of what is happening and become
equipped to make wise and informed decisions.
Please remember throughout that I am not a doctor or a
lawyer. I am not qualified to give advice. I am just a person
who witnessed an esteemed loved one travel the road before
you, who wants to share what I have learned along the way
and give you hope that it is at least possible to survive this
devastating disaster and emerge intact. You are enduring a trial
by fire, from which you can emerge appreciating more than
ever before what is truly important in life. There can be a silver
lining even in this darkest of storms.
“Fly the plane to the ground.” You may be able to mitigate
the effects of this disaster that has befallen you. Although
false accusations snowball quickly, you can perhaps nudge the
snowball one way or another to reduce the destruction. Don’t
panic. Don’t despair. Pray for courage to do what you can, and
with serenity, accept the rest.
First Things First:
Do Not Waive Your Rights
The supposed privilege against self-incrimination is of but little
help if any help to an innocent man. —Edwin M. Borchard
T
he worst thing most innocent suspects do is waive
their constitutional rights. YOU are responsible for
safeguarding your rights! Know what they are and protect
them. Unfortunately, you may be reading this a bit late,
after you’ve waived some rights. Late is better than never.
On Christmas Day, 1996, child beauty pageant queen
JonBenét Ramsey was found dead in the basement of her
parents’ home. In such a situation, it is always appropriate to
investigate family members. As often happens in suspected
Shaken Baby Syndrome cases, however, investigators
immediately jumped to a conclusion. They strongly suspected
JonBenét’s parents were the culprits. Their minds closed to
other possibilities. Evidence that confirmed their suspicion was
“relevant.” Evidence to the contrary was ignored.
Judging prematurely is a human tendency that we all must
train ourselves to guard against. The problem is not that police
are bad or evil, but they may assign too much weight to “gut
feelings” and appearances. Like any human, they can jump
to “obvious” conclusions rather than remain open-minded and
circumspect until all facts have been gathered and examined.
This is likely if a situation resembles something they’ve
personally witnessed in the past, especially the recent past.
What made the Ramsey case unusual was that JonBenét’s
parents immediately hired separate attorneys and refused to talk
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to police. They steadfastly refused to talk to police, for years,
despite extensive media coverage and widespread speculation
that they must be guilty! Who but a guilty person would refuse
to cooperate with police?
Seven full years after JonBenét’s death, forensic
investigators tested a blood sample found on her underwear and
discovered DNA from an unknown male. As they re-evaluated
the crime, it became clear that much exculpatory evidence
available at the time of the child’s death was ignored because
police were so sure they knew what had happened. Not until
July 9, 2008, two years after the death of JonBenét’s mother, did
police apologize and send a letter stating that the parents were
no longer suspects. The murder remains unsolved.
The point of this story is that had the Ramseys “cooperated”
with the investigation by agreeing to be interviewed by police,
they would certainly have been convicted. Case closed. The
exculpatory DNA would never have been located or tested.
well intentioned, is powerful, coercive, and human. Humans
make mistakes. Humans are corruptible, especially when in
power. By restricting the power of police and prosecutors, the
Bill of Rights safeguards freedom by making it difficult for
agents of the government to act arbitrarily or with impunity.
Even government authorities are subject to the rule of law.
In America, wrote Justice Hugo Black, a defendant “has an
absolute, unqualified right to compel the State to investigate
its own case, find its own witnesses, prove its own facts, and
convince the jury through its own resources.” YOU have no
obligation to assist them in that task!
Police are human—imperfect and subject to unconscious,
unintentional bias. They are accustomed to dealing with
hardened criminals, people who lie as easily as they breathe.
You might think of police as “sheepdogs” who have the job
of protecting “sheep” (the general public) from “wolves”
(criminals). The big difference between sheepdogs and
wolves is which side they’re on. Both are predators. Both are
ferocious. But “wolves” prey on “sheep” whereas “sheepdogs”
prey on “wolves” in order to protect “sheep.” If police think
you are a “wolf in sheep’s clothing” (a criminal), you have no
chance of surviving an encounter with them unscathed. Police
are highly trained and very skilled.
We can simultaneously appreciate police for the valuable
service they provide to the public, and fear them for the
devastation they are able to inflict on innocent people who they
sincerely believe to be guilty.
The Founding Fathers took great pains to ensure the
protection of individual rights because government, however
Fourth Amendment: The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched,
and the persons or things to be seized.
Fifth Amendment: No person shall be held to answer for any
capital, or otherwise infamous crime, unless on a presentment
or indictment of a Grand Jury, except in cases arising in the land
or naval forces, or in the Militia, when in actual service in time
of War or public danger; nor shall any person be subject for the
same offence to be twice put in jeopardy of life or limb; nor
shall be compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property, without due
process of law; nor shall private property be taken for public
use, without just compensation.
Sixth Amendment: In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impartial
Know Your Constitutional Rights
Let’s review the constitutional protections you must
safeguard as a suspect in a criminal case. Four of the ten
amendments in the American Bill of Rights relate to civil rights
of individuals suspected or accused of crime:
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jury of the State and district wherein the crime shall have been
committed, which district shall have been previously ascertained
by law, and to be informed of the nature and cause of the
accusation; to be confronted with the witnesses against him; to
have compulsory process for obtaining witnesses in his favor,
and to have the Assistance of Counsel for his defense.
Eighth Amendment: Excessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punishments
inflicted.
In list form, these are your rights:
1. Right to due process. Unfortunately, due process
safeguards do not always protect the innocent or ensure
that the guilty are brought to justice.
2. Protection from unreasonable search and seizure. Do not
allow investigators to enter your house without a warrant.
3. Right to indictment by a grand jury.
4. Protection from double jeopardy (being tried twice for the
same crime).
5. Protection against self-incrimination. If you speak to
police, you will incriminate yourself. Anything you say
can be used against you in a court of law. Do not speak
to police without an attorney present. It need not be the
attorney you hire to represent you in court. Any attorney
is better than no attorney at this early, critical stage. The
Supreme Court recently ruled that police are not required
to read you your rights! YOU must know your rights and
safeguard them! Silence is the best protection.
6. Right to a fair and speedy trial. You do not need to waive
this right, though it may be to your advantage. Scientific
research conducted during a long wait might weaken the
prosecution’s case. If you are in custody, your case might
come to trial more quickly than if you are out on bail.
7. Right to trial by jury (to be judged by one’s peers). 95%
of people surrender this right and plead guilty, usually
with a plea bargain which offers them some benefit.
8. Notice of accusations (you have a right to be informed of
the nature and cause of the accusation against you).
9. Right to confront one’s accusers.
10. Right to counsel.
11. Protection from excessive bails and fines.
12. Protection from cruel and unusual punishment.
These rules make the job of fighting crime more
cumbersome. Police and prosecutors have their hands tied to
some degree. Ironically, criminals who know and assert their
rights can wrongly escape punishment while innocent people
who do not know or fail to assert their rights can be wrongly
punished. It’s tempting to think that if you’re innocent, you
have nothing to fear. Nothing could be further from the truth!
Initially, you may be unaware that you’re a suspect. If
police want to talk to you, you’re probably a suspect. Assert
your rights. Remain polite but do not consent to an interview or
a search. If you talk, you will talk too much. Police know how
to get people talking and keep them talking.
A good defense attorney knows about rights, rules, and laws,
and will ensure due process and advise you. Finding an attorney
as soon as possible can make the difference between freedom
and lifelong imprisonment.
Police are understandably more concerned about crime
control than due process. Society in general tends to swing back
and forth from one emphasis to the other. Said Judge Sarokin in
the 1985 ruling that released Rubin “Hurricane” Carter after 19
years of wrongful imprisonment, “There is a substantial danger
that our society, concerned about the growth of crime, will
retreat from the safeguards and rights accorded to the accused
by the Constitution.” (Carter’s story is recounted in a 1999
movie The Hurricane.)
Safeguard Your Rights
Innocent people are inherently honest. That can lead
to their downfall. If you’re innocent, you may not realize
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you’re a suspect until too late. You trust police. You want
to do whatever might possibly help the doctors and the baby.
The temptation to cooperate can be compelling, irresistible,
especially when you know you’re telling the truth. You’re
confident you have nothing to fear. You want to tell your story.
You want people to understand what happened. You trust the
system. No, no, NO!
There are many resources to train citizens how to safeguard
their rights. One is BUSTED: The Citizen’s Guide to Surviving
Police Encounters, on YouTube. Check out the web site http://
www.FlexYourRights.org. Watch Knowing and Protecting Your
Rights, at http://www.rexattysvideo.com/. Search for Professor
James Duane’s video Don’t Talk to Police on YouTube. Share
this information with others!
Just as knowing first aid can save someone’s life if you
happen to be first at the scene of an accident, knowing your
rights before encountering police can save your freedom, not to
mention your reputation and a whole lot of money.
They Didn’t Read Me My Rights!
You have the right to remain silent. Anything you say can and
will be used against you in a court of law. You have the right
to have an attorney present during questioning. If you cannot
afford an attorney, one will be appointed for you.
What most Americans know about the justice system, they
learned from TV. What you think you know may not be true.
In 1966, the United States Supreme Court ruled in Miranda
v. Arizona that unless persons taken into custody have been
advised of their Constitutional rights, any information garnered
in interrogation cannot be used in prosecution. Note the words
“taken into custody”! If you consent to talk to police before you
are taken into custody, you have voluntarily waived your rights.
In June 2010, the Supreme Court ruled that a suspect’s words
can be used against him if he fails to clearly tell police he does
not want to talk, placing the entire burden on the suspect.
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The following factors must be present for Miranda to apply:
1. Evidence must have been gathered.
2. The evidence must be testimonial.
3. The evidence must have been obtained while the suspect
was in custody.
4. The evidence must have been the product of interrogation.
5. The interrogation must have been conducted by agents of
the state.
6. The evidence must be offered by the state during a criminal
prosecution.
Few ordinary citizens are prepared to handle the pressure,
intimidation and confusion of an encounter with police. They
unknowingly, unwittingly, and voluntarily waive one right after
another. The result is that innocent people can be trapped into
saying or doing things they will regret for the rest of their lives.
The Wisconsin Supreme Court recently ruled (in a 4-3
decision) that since a babysitter never explicitly stated that
she wanted an attorney, she waived her rights. Although her
attorney and husband had arrived and were just outside the
door, they were not allowed in and she was not informed they
were there. A detective told her a false story that her daughter
saw her shake the baby. He did not mention that the daughter
said it was during the administration of CPR. The Justices
ruled, “Police deception doesn’t automatically mean resulting
statements are inadmissible.”
How to Respond to Police
If you are approached by police:
1. Be calm, courteous and respectful. Keep your hands in plain
sight and make no sudden moves.
2. You are required to give police your name and basic
information, nothing more.
3. Face the officer, make eye contact, and ask, “Officer, have I
done something wrong?” This puts the ball in his court and
will clarify the situation for you.
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4. NEVER touch, resist, or argue with a police officer. Police
may deliberately attempt to induce you to react emotionally.
Stay cool and stand your ground. Don’t take the bait.
5. Say, “Officer, I know you’re just doing your job, but this is
a very difficult time for me. I don’t want to talk about this
with you right now.” If the officer continues to press, say,
“If you insist that we talk immediately, I request that an
attorney be in attendance.” If you let police know you know
your rights, they will likely respect them.
6. Never lie to a police officer. Refuse to answer questions.
Avoid all temptation to lie or “color” information. Even the
tiniest lie will be used against you.
7. If the officer attempts to intimidate or pressure you, say,
“Officer, I haven’t done anything wrong. I’d appreciate it if
you leave me alone.” If he presses, say politely, “I’m sorry,
but I really have to go,” or ask, “Am I free to leave?” Walk
away at a normal pace. Never, ever, run from police.
8. If pressure persists, become a broken record. “I have
nothing to say until an attorney is present.” “I have nothing
to say until an attorney is present.” “I have nothing to say
until an attorney is present.” Say it calmly, again and again,
until they back off. They may be unhappy but they are
required by law to respect that request. You are doing them
a favor by refusing to help them participate in a miscarriage
of justice, a possible wrongful conviction. Police want to do
the right thing. They want to get bad guys, not good guys.
You know you did nothing to hurt the baby. They think you
did. But you were there! You know!
Note: If you did do something that contributed to the baby’s
injuries, tell your attorney—not the police—every detail.
If police had all the information they needed to convict you,
they wouldn’t need to ask questions. You have everything to
lose by talking to them and nothing to gain. Innocence is no
protection whatsoever. Says former police detective and FBI
officer Dale Carson in his book Arrest-Proof Yourself,
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Every day I see people who helped police arrest them,
helped the state prosecute them, and didn’t even realize
it. They confess for no reason; take pleas when they’re
innocent; run, resist, and lie needlessly when arrested;
screw up their probation; and in a hundred different ways
contribute unnecessarily to their personal ruin.
If police ever turn on a recording device in front of you, say
clearly and calmly to the machine, “I want to talk to a lawyer.”
Repeat that if necessary but say nothing else. Many innocent
people have been convicted because they “confessed.” They
later claim they were so confused and exhausted at the time
that they would have said anything just to get out of that room.
If only they had known to say the one thing guaranteed to
terminate police questioning: “I want to talk to a lawyer.”
The Innocence Project reports that in more than 25%
of DNA exoneration cases, innocent defendants made
incriminating statements, delivered outright confessions, or pled
guilty. If you’ve already waived some of your rights, forgive
yourself and resolve to do better henceforth. Learn from your
mistakes and do others a favor by helping them learn from your
mistakes. You are by no means alone. Very, very few people
would do better, knowing no more than you knew at the time.
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What’s in a Name?
The term “Shaken Baby Syndrome” is a variation of a term suggested
in a 1974 article by Dr. John Caffey, “The Whiplash Shaken Infant
Syndrome.” During shaking, Caffey wrote, an infant’s head moves
forward until it strikes the chest, then backward until the back of the
head strikes the spine. He wrote that a good deal of the potential for
brain injury related to the amount of rotation of the head. “Current
evidence,” he concluded, “though manifestly incomplete and largely
circumstantial, warrants a nationwide educational campaign” to warn
parents against even casual shaking of infants.
In the 1970s, the idea of Shaken Baby Syndrome was new. In the
1980s, it was being taught in medical schools. Practicing doctors were
concerned, but unwilling to accuse without additional evidence of abuse.
Researchers at the time seem to have been open-minded, searching
for truth and advancing hypotheses. In the 1990s, however, several
unproven assumptions hardened into dogma. By that time, Shaken Baby
Syndrome had its own medical diagnostic code, 995.54.
Other terms for the syndrome include:
• Whiplash Shaken Infant Syndrome
• Inflicted Traumatic Brain Injury (iTBI)
• Non-accidental Head Injury (NAHI)
• Inflicted Childhood Neurotrauma (ICN)
• Inflicted Head Injury (IHI)
• Shaken Impact Syndrome
• Blunt-Force Trauma
In April 2009, the American Academy of Pediatrics officially
withdrew the term “Shaken Baby Syndrome” (SBS) and replaced it with
the less specific “Abusive Head Trauma” (AHT), saying it will provide
more clarity in court and preclude arguments about whether impact is
necessary.
Said a prosecutor, “We want to make sure that we’re framing
the debate on our own terms, not in terms of the defense, because we
can eliminate a lot of arguments if we’re not focusing on one isolated
mechanism. We should not put all our eggs in one basket. Call it
abusive head trauma or child abuse but don’t try to confine it to one
thing.”
The new terminology, prosecutors hope, will make it easier for
them to convince juries that abuse occurred without forcing them to
be specific about exactly what occurred (shaking alone, shaking plus
impact, impact alone).
I
What They Think You Did
t is important to know exactly what you have been
accused of doing. Your accusers believe you grasped a
child by the rib cage, arms or shoulders and shook him so
violently that his head, arms and legs swung repeatedly as
far as they could go. According to the American Academy
of Pediatrics, “The act of shaking/slamming is so violent
that competent individuals observing the shaking would
recognize it as dangerous.”
According to the National Institute of Health website,
“Shaken Baby Syndrome is a type of inflicted traumatic brain
injury that happens when a baby is violently shaken. A baby has
weak neck muscles and a large, heavy head. Shaking makes the
fragile brain bounce back and forth inside the skull and causes
bruising, swelling, and bleeding, which can lead to permanent,
severe brain damage or death. The characteristic injuries of
Shaken Baby Syndrome are subdural hemorrhages (bleeding in
the brain), retinal hemorrhages (bleeding in the retina), damage
to the spinal cord and neck, and fractures of the ribs and bones.
These injuries may not be immediately noticeable. Symptoms
of Shaken Baby Syndrome include extreme irritability, lethargy,
poor feeding, breathing problems, convulsions, vomiting, and
pale or bluish skin. Shaken baby injuries usually occur in
children younger than 2 years old, but may be seen in children
up to the age of 5.”
Not everyone believes that Shaken Baby Syndrome even
exists. Child abuse, however, definitely exists. Symptoms
attributed to SBS are found in abused children. The debate
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18
concerns whether certain invisible symptoms are absolutely
diagnostic of child abuse and can be relied upon, apart from
witnesses or other evidence, to prove beyond a reasonable doubt
not only that abuse or homicide occurred, but when it occurred,
who committed it, and what was their state of mind at the time.
The motive is thought to be frustration with a baby’s crying.
What Does “Shaking” Mean?
To avoid miscommunication, we must be clear what
people mean when they say “shaking.” In a case in Texas,
the defendant spoke no English and the prosecutor spoke no
Spanish. The translator rendered every synonym for “shaking”
as “shaking.” Words like “shiver”, “tremble”, “shudder”,
“jostle” and “convulsions” were all translated “shaking.”
Fortunately the judge was bilingual and understood exactly what
the defendant meant. He later stated that had he not known
Spanish, she would have been on her way to prison without
recourse.
Unfortunately, things aren’t always better when everyone
speaks the same language. Interrogators will ask over and over,
sometimes rapid-fire, whether you shook the baby. Compliant
people who do not know exactly what is being alleged will
search their minds for anything remotely resembling shaking,
thinking it will help. “Well,” they say, “I guess I did. After he
stopped breathing, I picked him up and shook him a little to try
to wake him up. Is that what you mean?” Beware. That can be
called a “confession”!
Here’s a series of questions posed by a detective in one
case: “The injury he has is not from a little fall. It had to
have happened shortly before he came to the hospital. You’re
obviously a very good mother. To help the child, we must know
exactly what happened. I know you care. It’s important for
you to let us know the cause so we can treat him. Something
happened and we need to tell the doctors so they can help him.
“Did you jerk him off the floor?” No. “Is there any time he
didn’t cooperate?” No. “Maybe there’s something you don’t
19
want to talk about.” No. “Is there any way you can think of that
this could have happened at your house?” No. “Did you scoop
him up fast?” No.
“We’re sure at a loss. This injury is caused by a real fast
movement. The only time you see this is shaken baby. Is it
possible what you’re saying is not correct? We understand
if it is. We know you didn’t intend to do anything. It’s not
uncommon that you would be frustrated. Tell us. You’re not
telling us everything or he wouldn’t be in the hospital.
“This injury is not from what you say happened. Is it
possible you held him and shook him? We know you didn’t
intend to hurt him. When you shook him, was it for a long time
or for a little time? Did he stop crying after you shook him?
When you shook him a little bit, did he stop crying? How many
seconds or minutes did you shake him? Did it seem like a long
time or a little time? After you shook him, did he stop crying?
“The injury he has comes from his head moving back and
forth. Did his head go back and forth? He has bleeding in the
center of his brain between the two lobes. That happens when
a baby is shaken. Most people don’t know that happens. Last
night you said you did shake him.” No. I was jostling him a
little like this to calm him. “Did you hold him out in front of
you?” Yes. I held him under the armpits in front of me and
said, ‘Baby, are you OK?’
“I believe you didn’t shake him intentionally. I really
believe you did not intentionally hurt that child. You don’t
always remember right away.”
The officer took her statement that she had held the baby
under his arms in front of her, combined it with her statement
that she had jostled the baby to comfort him and called it a
“confession.” What she meant by shaking was something quite
different than what he meant by shaking!
So, what is their definition of “shaking” and on what is it
based? How many shakes does it take? How much force is
required? How long do accusers believe a fatal shaking episode
20
21
lasts? Answers vary greatly from expert to expert. No one
knows for sure. Experiments cannot be done for ethical reasons.
If you have been accused of shaking a baby, your accusers
do not mean jiggling or bouncing. A detective in one police
training class described it this way: “It is never unintentional.
It looks like the baby’s head is going to come off!”
There are no videotaped or independently witnessed cases
of a fatal or debilitating shaking event. No one knows how
much force is required, how many shakes it takes, or how long
a fatal shaking episode lasts. There are confessions, including
some that seem honest and uncoerced. In fact, child advocates
assert that confessions are the strongest evidence available to
support the Shaken Baby Syndrome theory. Might they include
“confessions” like the one above?
One prosecution expert said, “There are statements by the
American Academy of Pediatrics, by the Canadian Pediatric
Association, by the National Association of Medical Examiners,
and each of them states that we believe that this is a violent
event, an event of such great violence that no rational person,
seeing the event, would presume that this is a safe or proper way
to treat a baby. Is he going to just tire out and set the baby down
gently? Or is he going to do something more damaging, like
throw the baby down or slam the baby down?”
A controversy exists as to whether impact is necessary to
generate the forces required. Strong individuals shaking dolls
in an experimental setting have been unable to generate the
forces doctors claim are necessary to cause death. The name of
the diagnosis recently changed from Shaken Baby Syndrome to
Abusive Head Trauma to relieve prosecutors of the burden of
proving a particular mechanism of injury.
One speaker said,
Shaking alone is insufficient without impact to cause fatal
head trauma, but the chin is impacting on the chest and the
head is impacting on the shoulder blades. Those are two
very, very significant impacts and a reversal of direction,
which is the worst kind of impact.
Some prosecution experts demonstrate what they believe
might have happened in front of juries. In one trial, an expert
violently shook a doll and banged its head on the witness
stand again and again, then turned the baby over and repeated
the bashing in order to show how much force he thought was
necessary. Jurors wept. Other prosecution experts at the same
trial said even a mild shaking could cause the injuries.
How many shakes does it take to damage a baby’s brain or
cause death? No one knows for certain. It is safe to say that
no one should EVER shake a baby, but it is not safe to say that
all babies with certain types of brain damage have been shaken.
All “expert” opinions listed below were presented, some with
great confidence, in court.
How Much Force?
• An acceleration/deceleration force that “requires a lot of
very sharp forward, or very strong forward and backward
movement.”
• Equivalent to falling four stories or being in a serious
motorcycle wreck.
• Fall from a great height onto a hard surface.
• Strong and intentional force.
• Injuries were so severe the child would have had to fall from
a five-story building.
• Injuries of this nature could be caused by falling from a 12story building.
• Car crash at 40-50 miles per hour.
• The equivalent of a 50-60 mph unrestrained motor vehicle
accident.
• A three-story fall or impact with the windshield of a car
traveling at 30 mph.
• A high speed road accident or a fall from a first floor
window.
• Very angry, out of control. Very aggressive.
• Such massive and violent force that he could be practically
certain his conduct would cause the child’s death.
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• The force of gravity experienced by a fighter pilot in a tight
turn might be six and one half Gs, which could cause the
pilot to black out, but the force applied to a child’s brain
resulting in Shaken Baby Syndrome is between nine and one
half and 350 Gs.
How Many Shakes? How Long?
• Around 20 minutes.
• As little as two or three seconds.
• In the flick of an instant, they lose their temper. They
violently shake an infant and throw that infant and then it’s
over, and they bitterly regret what they did.
• Shaken with considerable force for a prolonged period of
time, possibly for up to two minutes.
• 4-20 seconds, with 2-4 shakes per second.
• Takes only seconds to do permanent damage.
• To inflict this degree of injury, a person would typically
have to violently shake an infant for approximately 15 to
20 minutes. (Note: the sitter was wearing a cast on her arm
when this allegedly occurred.)
• Three or four times a second for about nine seconds.
• About 30 seconds.
• Nearly 15 minutes.
• Shaking can last less than 20 seconds. Between 5 and 15
is probably more like it. It can be 40-50 undulations of the
infant’s head.
• Most shaking lasts up to 15 seconds and involves as many as
50 shakes.
• At least several seconds. At least five or more shakes.
• Just a momentary loss of control.
• It takes only a few seconds of shaking—typically three
back-and-forths per second—to seriously injure or kill an
infant.
• Because exhaustion occurs, it is surmised that most shaking
probably lasts 20 seconds or less, with perhaps 40-50
shakes.
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The American Academy of Pediatrics characterizes the
force this way: “The act of shaking, leading to Shaken Baby
Syndrome is so violent that individuals observing it would
recognize it as dangerous and likely to kill the child. Shaken
Baby Syndrome injuries are the result of violent trauma.”
In fact, no one knows the minimum impact or velocity it
takes to produce a skull fracture or brain injury in a baby.
In a Colorado case in the 1990s, a Court of Appeals agreed
that expert testimony as to the amount of force should have
been excluded as irrelevant or prejudicial. A prosecution expert
had stated that a subdural hematoma such as the one the baby
had would require a fall from a tall building, a high-speed auto
accident either as a pedestrian or where the baby is unrestrained,
or violent shaking. The Court of Appeals reasoned that by
using extreme accident scenarios, the prosecution ignored the
undistributed middle:
1. Some children who suffer subdural hematomas have been
subjected to trauma or force such as that sustained by a fall
from a multistory building or being unrestrained in a highspeed automobile accident.
2. This child sustained a subdural hematoma.
3. Therefore, this child was subjected to trauma or force equal
to or exceeding that caused by a fall from a multistory
building or being in a high-speed automobile accident.
Wrote the Court,
It is one thing clearly to state that a certain quantum of
force is necessary to produce a subdural hematoma. It is
quite another to use examples of obviously extreme force
and violence that have been demonstrated to have caused
subdural hematomas and then suggest that they constitute
the minimum force necessary to cause such an injury in any
particular case.
Prosecutors appealed to the Colorado Supreme Court, which
reversed the decision of the Court of Appeals.
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Dr. Alex Levin, who frequently testifies for the prosecution
in shaken baby cases, is undisturbed by the fact that the amount
of force or number of shakes is unknown.
We don’t know how hard! We don’t know how many!
It’s an immaterial thing! The point is we have real live
babies in front of us. We have real live empirical data.
These kids are dying and getting injured obviously from
something! From something! We have lots of data that
shows us it wasn’t a short fall. There’s lots of data. So I’m
not disturbed by the fact that I don’t know what that critical
number is. I don’t think it’s even that important. The point
is the injury happened and the injury didn’t happen by all
the alternative theories that have been offered. I don’t
really care if it’s six shakes, seven shakes, this many G
forces or that many G forces. It happened!
It happened. You’re guilty. Who cares about details?
A
The Darkest Day
lthough every case is unique, stories told by caretakers
have remarkable similarities. When abuse is
suspected, the caretaker’s story, no matter what it is, will
not be believed. I wonder, though, why so many people, so
widely dispersed, invent such similar “stupid stories” (as
some doctors and police derisively call them). If people
were lying to conceal criminal behavior, wouldn’t they
invent more “believable” stories?
Precursors to the Darkest Day
Many babies who are diagnosed with Shaken Baby
Syndrome/Abusive Head Trauma have health histories that
include one or more of the following:
• Difficult pregnancy
• Difficult delivery
• Previous miscarriages
• Premature
• Multiple births (twins, triplets)
• Adopted from overseas, no health records
• Frequent health problems, some dating from birth
• Respiratory problems
• Allergies
• Frequent infections
• Sleep apnea
• Feeding problems
• GERD (gastro-esophageal reflux disease)
• Treatments attempted but did not work
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• Delay in reaching developmental milestones
• Large head in relation to body
• Poor head control
• Weak muscles
Caretakers often describe the children affected as quiet babies
who rarely cry and are easy to console. In several cases, sitters
reported an opinion that parents should have taken the baby to a
doctor long before because he was clearly not well.
One mother, concerned about her baby’s vomiting, was told
she was overreacting. Relatives thought the baby was being
“cute” when he fluttered his eyes and appeared to smile when
sleeping. Only later did they realize he was having seizures.
A different mother expressed concern from the beginning
about her baby’s strange hand movements, violent rocking back
and forth, head-banging and hair- and ear-pulling. He would
start and stop crying abruptly. He was insatiably hungry at first
but in the days before his collapse was not interested in eating.
Many caretakers have reported some or all of these
symptoms or situations in the week or two before a child’s
collapse:
• Feeding problems
• Flu-like symptoms
• Excessive spitting up
• Projectile vomiting
• Fever
• Diarrhea
• On medication: Tylenol, Pedialyte
• Rapidly growing head (“normal” is about 2 cm per month)
• Sleeping more than usual
• A bad fall or unusually frequent falls
• “Not his usual self”
• Vaccinations, even when the baby was sick or premature
Vaccinations are correlated with SBS symptoms. Some
people believe them to be causative. Doctors are cautioned not
27
to vaccinate children who are sick, but they may do it anyway,
especially if they believe the illness is minor. Knowing what I
know now, I would refuse to allow a sick baby to be vaccinated!
It is advisable to schedule a premature baby’s vaccinations on
the basis of his due date rather than his actual birth date.
On the Darkest Day
On the day of a child’s collapse, there is often a fall,
sometimes seemingly minor. This is important because
although a caretaker may not attribute the child’s symptoms to
the fall, accusers consider any remark about a fall to be evidence
of lying and guilty knowledge. Sometimes major falls are
reported, perhaps an adult tripping and falling onto a child with
force. SBS theory holds that no household fall is capable of
causing the symptoms associated with Shaken Baby Syndrome.
Often the child, despite a presumed flu or minor illness, is
described as being “fine” by the caretaker in attendance when
the baby collapsed. One detective said, “That, in and of itself,
saves our butts. She said he was fine.”
Police try to determine the last time the child was normal or
“fine”—although that term means different things to different
people. It may simply indicate that the caretaker had no reason
to suspect anything serious and had no knowledge of any
unusual circumstance that might explain the baby’s collapse.
Usually, what precipitates a 911 call is a seizure or breathing
problem. Less serious symptoms of head injury may have
been present for days but went unrecognized. Symptoms that
manifest the final day may include irritability, lethargy, poor
sucking or swallowing, vomiting, crying, gaze disturbance,
seizures or rigidity, trouble breathing, and eventually coma.
• Irritability: Infants are described as fussy, irritable, clingy,
and sometimes as making “bicycling” motions with their
arms and legs. Severe intracranial hypertension may lead to
this type of motion, according to one researcher.
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• Lethargy: Children are described as seeming very tired,
quieter than usual, lethargic, groggy, sluggish or “spaced
out.”
• Poor sucking or swallowing: Many caretakers report
that the child ate poorly or refused his bottle. “Experts”
will often testify that a child who has sustained a serious
head injury will be unable to eat anything afterward. If a
caretaker, therefore, says a baby ate “a little” or if stomach
contents include food the child ate under the charge of the
final caretaker, investigators may consider that to be proof
positive that the child was injured by that person.
• Vomiting: Many children diagnosed with Shaken Baby
Syndrome had been vomiting on and off for days. On the
day of collapse, some are reported to choke or gag, then
vomit through their mouth and nose just prior to collapse.
• Crying: Caretakers frequently describe the baby’s crying
that day as unusual. “He cried inconsolably then suddenly
stopped.” “He made a strange, cat-like cry.” “He screamed
like nothing I’ve ever heard.” “The cry escalated to a
piercing banshee scream and then he passed out.” “He was
whining, not crying like usual.” “He made a strange noise
like a squeak.”
• Gaze disturbance: Pupils may be unequal or eyes
bloodshot. Caretakers are terrified when the child’s eyes roll
back or are only slightly open. Some say the baby wouldn’t
open his eyes or could barely keep them open. Eyes may be
“fluttering” or “fixed and staring.” The gaze may deviate to
one side, with an inability to focus. Some carers describe
the child as “glassy eyed” or having a dazed or glazed look.
• Seizures or rigidity: Children are reported as “twitching” or
trembling. The baby’s fontanel (soft spot) may be bulging.
Babies are described as arching their backs or becoming
very stiff. Doctors call this “posturing.” Several people
have reported seizures during diaper changing.
• Trouble breathing: When babies begin to breathe strangely,
caretakers panic. The breathing problems range from
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“raspy” to “groaning” to “gurgling” to “loud snoring.”
Some caretakers report sucking, hissing or strange, deep
wheezing sounds. “He was holding his breath and then he
would gasp for air. It was like he was trying to catch his
breath,” said one. Breathing is labored, sometimes slow,
sometimes fast and shallow. Apnea (temporary cessation of
breathing) can be a consequence of brain swelling.
• Collapse, coma, unconsciousness: Some children suddenly
stop crying and then pass out. Others won’t wake up from
a nap and are completely limp and unresponsive, floppy,
“like a wet noodle.” Others become pale, blue or ashen
(cyanotic). Their lips turn purple or blue. They feel cold
and become “very still.” Several caretakers have said: “The
baby just kind of slumped over.” “He couldn’t hold his head
up.” “His head was lolling.”
Wrote one mother: “On September 10th, our daughter fell
from her chair. We took her to the hospital the following day
because she wouldn’t eat, cried constantly and slept more than
normal. They did a CT and said she was fine, then sent us home.
The next morning we took her again because she was no better.
They sent us home. That same night we took her back. They
said she was fine and sent us home.
“On September 13th, she saw her pediatrician, who admitted
her to the hospital. They then transferred her to Children’s
Hospital, where they did a CT scan and X-ray of her belly.
They said she was fine and sent us home.
“On September 23rd, she went limp, like a rag doll. We
rushed her to the hospital. She had stopped breathing and had
a seizure. They then transferred her to the Children’s Hospital
where they found subdural hematoma and retinal hemorrhages.
They told me that the fall could not cause this and the only way
to get it was abuse.”
Another described their baby’s struggle: “As we were
driving home, he began screaming, vomiting and convulsing.
30
His eyes were rolling and his head was thrashing around
violently. Both arms were extended and his palms were faced
out with his fingers completely extended and rigid. He then
turned from red to purple to white, vomited, and then turned
bluish and stopped breathing.”
Caretaker Reaction
Caretakers may be confused by a baby’s sudden decline,
not knowing of anything that could have caused it. Early signs
of brain injury are nonspecific and easily mistaken for minor
illness. Despite the fact that a correct diagnosis early on can
be problematic even for doctors, young parents and babysitters
have been held criminally responsible for not recognizing the
early signs of head injury. Prosecutors have told juries that
mothers should have called 911 when their baby first vomited!
When a baby begins to have difficulty breathing, many
people try sprinkling water on or blowing on the baby’s face.
They may try to clear the airway and do CPR. Some call a
relative or close friend to ask for advice. Depending on the
apparent severity of the situation, they may call 911 or rush the
child to the emergency room themselves.
Any response other than calling 911 immediately can be
considered evidence of guilt. Said one mother, who lived
in a rural area with volunteer emergency response, “I would
like to know where the law is that says you must call 911 and
allow some minimally trained EMT that may or may not know
what he is doing to care for your child.” Emergency workers
sometimes have difficulty intubating babies, with the result that
their little brains can go without oxygen for up to an hour before
they are seen by an emergency room doctor.
Prosecutors may assert that the fact a caretaker drove a baby
to the hospital rather than call 911 (even if the hospital was just
a few blocks away) is proof positive of guilt. “No one does that
unless they have something to hide. This is not a response of
someone who is concerned. It is the response of someone who
thinks, ‘I’ve done something wrong.’”
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If two adults are present at the home at the time, one may
be charged with neglect or failure to protect while the other is
charged with murder or manslaughter. Both may be charged
with perjury for telling the same story.
Emergency Room
A report of “baby not breathing” or “unresponsive child” is
equivalent to a report of abuse in the minds of many doctors.
Calls are made to police and child protection services before the
child even arrives at the hospital.
The snowball begins rolling, picking up speed.
Doctors are required by law to report any suspicion of
child abuse. Police assume doctors would not make such
serious accusations unless they were sure. Parents suspected of
abuse may not be allowed into the room with their baby at the
hospital. Detectives may question them with the promise that
when the “right” answers are given, they’ll be allowed to see the
baby. In a few cases, doctors have openly accused parents of
abuse even before examining the child. Presumably, the story of
the child’s collapse “matched” cases of abuse they’d heard of or
seen in the past.
At the emergency room, babies are hooked up to monitors
and put on life support if necessary. The doctor orders a CT
scan. If there is evidence of subdural blood, they summon
an ophthalmologist to look into the eyes. If there is retinal
bleeding and the caretaker offers any story other than a free fall
from 2-3 stories or a massive car crash, a diagnosis is made:
Shaken Baby Syndrome. The baby may undergo emergency
surgery. Doctors might drill a burr hole or remove part of the
baby’s skull to relieve pressure on the brain.
Baby brains are especially prone to swelling, and it is the
malignant swelling, rather than the subdural or retinal bleeding,
that causes a child’s death or permanent injury.
Unfortunately, doctors seldom explore differential
diagnoses. As a rule, doctors diagnose what is “most likely”,
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treat for that, and see what happens. If the patient doesn’t
improve, they consider a less likely diagnosis, treat for that, and
see what happens.
When the diagnosis is abuse, and especially when a child
dies, investigation into alternate possibilities ceases. Accused
caretakers may find it difficult or impossible to prove an
alternative. In some notable cases where the child survived, a
doctor later questioned the original diagnosis and did further
testing, discovering in the process an alternate cause.
Doctors misdiagnose fatal illnesses about 20% of the time,
according to studies. Misdiagnosis, especially early in the
course of a disease, is common. It would not be practical or
cost-effective for doctors to test every patient for every possible
diagnosis. A correct diagnosis of an uncommon condition may
emerge only after a long, costly, and sometimes frustrating
process of elimination. When a patient dies, the final diagnosis
sticks, correct or not, unless it is overturned at autopsy.
Once you’ve been accused of abuse, your life will never
be quite the same. In the course of a single dark day, a parent
or babysitter can transition from a contented life with dreams
coming true to a nightmare that stretches to consume the
foreseeable future.
How can this happen? How can it be that a parent or
babysitter, an upstanding member of the community, a person
who loves children and wants nothing more than to care for
them, ends up in the course of one short day not only losing a
beloved baby but being accused of his/her murder?
The answer lies in SBS theory and its evolution.
Shaken Baby Syndrome:
An Evolving Theory
The evidence for SBS appears analogous to an inverted
pyramid, with a small database (most of it poor-quality original
research, retrospective in nature, and without appropriate
control groups) spreading to a broad body of somewhat
divergent opinions. —Dr. Patrick Barnes
H
ow did doctors come to believe that certain symptoms
prove that a child has been violently shaken? To
answer that, we must take a look at the scientific method.
1. Someone notices an unexplained phenomenon.
2. He checks to see if others have researched the phenomenon.
What is currently known and what is not known?
3. He constructs a hypothesis that, if true, would explain the
phenomenon.
4. Using experiments, he tests the hypothesis.
5. He analyzes the results of the experiments and draws a
conclusion that the hypothesis is true, false, or partially true.
6. He subjects his findings to peer review and publishes the
results, often with suggestions for further research.
The Phenomenon
In 1946, Dr. John Caffey published a puzzling observation.
He had noticed that many of his pediatric patients had fresh,
healing and healed multiple fractures of the long bones (arms
and legs) accompanied by chronic subdural hematomas
(bleeding in a certain layer of the brain). Subdural hematomas
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34
were thought to be almost invariably traumatic in origin, yet
these children displayed no evidence of trauma.
The Hypothesis
Based on six case studies, he hypothesized that there was a
possibility the parents had intentionally inflicted the trauma, and
were lying or not telling him whole story. In one case, the baby
was clearly unwanted.
Experiments
It is impossible to safely conduct empirical experiments
on human infants to test the hypothesis. Caffey’s observation
remained in the literature, an open question.
Evidence?
In 1956, nursemaid Virginia Jaspers, under whose care three
infants had died, admitted under police interrogation to shaking
one of them. She was 6 feet tall and weighed 220 pounds.
Police concluded she had no idea of her own strength. Thinking
she had perhaps overreacted, she pled guilty to killing the child
and was sentenced to a long prison term. She died in April 2004
at the age of 80. The incident was widely covered in the media.
Conclusions—Was the Hypothesis True?
With little additional validation, influential doctors
concluded that violent shaking by caretakers accounted for all
subdural and retinal bleeding absent external signs of trauma.
In 1962, perhaps in part as a result of the Jaspers confession
and in part due to the then popular idea that adult criminal and
dysfunctional behavior stemmed from trauma in childhood,
Dr. C. Henry Kempe published an article entitled “The BatteredChild Syndrome.” In it, he talked a lot about psychiatry. He
believed that vast numbers of children suffered mistreatment at
the hands of their parents. Doctors, he said, were in a position
to fight and eliminate this social ill. He advised doctors to
check for subdural and retinal hemorrhages in children with
35
broken bones and if present, to diagnose abuse. An inability of
parents to provide a credible traumatic history for these injuries,
he believed, should be considered strong evidence of abuse.
In a 1965 speech, Dr. John Caffey disagreed. He was
concerned about the possibility of wrongful accusations. “There
are many circumstances in which the parents are totally ignorant
of the cause of their child’s injury and in which they do not and
cannot give a history. The failure of the parents to give a history
of injury is, therefore, not necessarily proof that the parent has
willfully inflicted injury on the child.” Most trauma, he insisted,
was accidental. Even short falls, he believed, could lead to
subdural hematomas. “It cannot he emphasized too strongly,”
he said, “that [medical symptoms] tell nothing of the person
who abused the child or how it was abused.”
In 1971, Dr. A. Norman Guthkelch proposed that shearing of
bridging veins in baby brains could lead to subdural hematoma.
Direct impact, he surmised, was not necessary. Because babies
have relatively large heads and weak neck muscles, they are
predisposed and especially vulnerable to whiplash injury.
Infantile subdural hematoma, he said, should be assumed to be
traumatic in origin unless proved otherwise. Notice how this
shifted the burden of proof to the accused.
Dr. Caffey weighed in again in 1972, still concerned that
innocent caretakers might be erroneously convicted on the basis
of medical opinion alone. He complained that the media had
vigorously and repeatedly presented the more spectacular and
misleading aspects of battered child syndrome, and that very
name “battered child syndrome” sparked premature bias against
accused parents before adequate investigations were concluded.
Again, he stressed that medical findings can neither identify a
perpetrator nor his motive. He advocated abortion on demand
to reduce the problem of unwanted children and cautioned that
repeated minor shakings might be more dangerous than violent,
willful assault. He called metaphyseal fractures—small “bucket
handle” or “corner” fractures at the ends of growing bones of
children, especially at the knee—characteristic of abuse.
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CT (computerized tomography) scanners were introduced
in hospitals beginning in 1972, making it possible at last for
doctors to produce images that showed the subdural bleeding
believed to be characteristic of abuse.
In 1974, the Child Abuse Prevention and Treatment Act
(Mondale Act) was enacted, establishing a National Center
on Child Abuse and Neglect. Doctors in every state became
mandated reporters who could be held criminally responsible
for failing to report suspected child abuse. In uncertain cases,
doctors were urged to err on the side of caution and report all
suspicions to the police and child protection agencies.
The snowball that would eventually crush hundreds of
families was picking up speed.
Is This Science?
Experiments to prove SBS theory beyond doubt are ethically
impossible. Interestingly, the reasoning behind inferring
causation from symptoms is remarkably similar to something
Sigmund Freud wrote: “Having diagnosed a case … with
certainty and having classified its symptoms correctly, we are
in a position to translate symptomatology into etiology: and
we may then boldly demand confirmation of our suspicions
from the patient. We must not be led astray by initial denials.
If we keep firmly to what we have inferred we shall in the end
conquer every resistance by emphasizing the unmistakable
nature of our convictions.”
It is not scientific to begin with a conclusion and set out
to prove rather than disprove a hypothesis. Such an approach
produces confirmation bias and may lead away from truth!
According to eminent scientist Steven Jay Gould in The
Mismeasure of Man, so-called “research” surrounding a favored
hypothesis can be profoundly influenced by assumptions and
predispositions. If a scientist holds an assumption at the outset
of research, and there are enough data to selectively choose
from or manipulate, his conclusions will often simply mirror
his assumptions, and, by extension, the conclusions of whatever
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political, ideological, or social movement he favors. “The
history of many scientific subjects is virtually free from …
constraints of fact,” wrote Gould. “Some topics are invested
with enormous social importance but blessed with very little
reliable information.”
Some child advocates believe that most cases of SIDS are
actually cases of murder. They are dismayed that they cannot
hold caretakers criminally responsible for SIDS. “Perhaps 85%
of deaths due to abuse are attributed to some other cause on the
death certificate,” lamented one. “Underreporting and missed
diagnoses continue to be substantial problems.”
There is no clear line between political advocacy and
science in the field of child abuse. To question the assumptions
of “child advocates” is considered tantamount to supporting
abuse, or even to being a secret abuser yourself!
One mother, a veterinarian whose babysitter was accused
of shaking her son, had the medical background necessarily to
question the assumption of abuse. She wrote:
As a veterinarian, the idea that a specific type of abuse
could yield a specific ‘fingerprint’ of injury rang patently
false since, in medicine, it is rare for any symptom
or group of symptoms to have only one cause. My
questioning of the ‘diagnosis’ earned me a scathing
letter from the hospital to CPS and the county prosecutor
stating, among other things, that I was “more interested in
protecting the babysitter than my own son” and that “We
cannot condone this child or his siblings remaining in the
care and custody of [his parents].”
Despite there being no suggestion of wrongdoing by parents,
they were threatened with the loss of all their children because
the mother questioned the diagnosis of abuse. It’s safer to keep
your mouth shut and be thankful you haven’t been accused.
The 1980s: Ritual Child Abuse in Day Care Centers
In 1980, the first of many “Multi-Victim Multi-Offender”
child abuse cases took place in Bakersfield, California. The
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39
story was headline news all over the United States. The public
was shocked and appalled. Newspapers flew off the stands.
One thing the cases had in common was intense highpressure questioning of young children by psychologists and
others who refused to believe anything other than a tale of
abuse. Over time, many children came to believe they had been
abused, and assisted prosecutors in winning highly publicized
convictions. Some, as adults, recanted and tearfully apologized
to people their testimony as children helped imprison. Edward
Hume, in his book Mean Justice, recounts the story, noting:
• The nation’s fear of crime and desire to be safe has made the
conviction of innocent men and women startlingly common.
• Once the authorities have decided you’re guilty, they will try
to disprove or twist against you anything you tell them.
• They assume any defense must be a lie or trick.
Seventeen headline-grabbing cases followed Bakersfield,
spaced throughout the 1980s. New allegations finally ceased
in the early 1990s after reporter Kathryn Lyons exposed the
truth behind the accusations in Wenatchee, Washington. In her
book Witch Hunt: A True Story of Social Hysteria and Abused
Justice, she wrote:
The crime of child molestation “is so heinous and
repulsive to society that if you give the appearance of
coming out on the side of the alleged abusers, you’re
looking at immediate political suicide.”
Rolling witch hunts began in the 1980s and continue to this day.
The 1990s: Recovered Memory Syndrome
In the 1990s, many psychologists who were ideologically
motivated to end abuse turned to “recovered memory
syndrome” as a way to root out abusers and thereby advance
toward a utopian society. According to this theory, many
women seeking counseling as adults had repressed early
experiences of sexual abuse by their fathers or others. Wrote
one clinician, “As a woman begins to see herself objectively
as a helpless, victimized child, she sees that she was not
responsible and she begins to like and respect herself.”
People very much desire to create a comprehensive causeand-effect story of their lives. Simple explanations offered by
others that relieve us of responsibility are welcome. Through
hypnosis, visualization and other techniques, therapists “helped”
patients “recover” repressed memories from childhood.
The first conviction based on a recovered memory occurred
in 1990. The daughter of George Franklin allegedly recovered a
vivid repressed memory of her father killing a childhood friend
20 years earlier. He was convicted of first degree murder on the
strength of her uncorroborated memory and “expert” testimony
as to its reliability. Numerous additional convictions followed,
some of which have since been overturned. To accommodate
prosecutions based on repressed memories, several U.S. states
extended the statute of limitations for child abuse accusations.
Wrote Richard Ofshe in his book Making Monsters:
• Determining a hidden cause from the presence of a given
symptom is an order of magnitude more difficult to accomplish in a methodologically sound manner than identifying
which symptoms might be the result of a known event.
• If one cannot make a strong correlation from cause to known
symptom, one certainly cannot work the other way.
Munchausen Syndrome by Proxy and “Meadow’s Law”
Sir Roy Meadow had proposed yet another syndrome,
Munchausen syndrome by proxy, in 1977. The medical
community was initially skeptical but as the theory began to
be taught in medical schools, it gained acceptance. The idea
behind it is that when medical findings are puzzling or unclear,
or when children do not respond to treatment, it may be that
the mother has induced symptoms in the child in order to gain
attention for herself.
In other words, if a doctor can’t figure out what’s wrong, the
mother is to blame.
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Sir Roy Meadow also formulated “Meadow’s Law” which
led to the conviction of several parents: “One child death is a
tragedy, two is suspicious, and three is murder unless proved
otherwise.” His charismatic expert testimony was widely
sought by prosecutors. Eventually, after it was discovered that
siblings shared a congenital condition that could explain their
deaths, some convictions were overturned.
Sir Roy was knighted by the Queen of England in 1998
for his contributions to child protection, but controversy later
erupted over his testimony that the odds against two SIDS
deaths in a single family are 1 in 73 million. Calling this
testimony irresponsible, the United Kingdom’s General Medical
Council struck him off their registry. He appealed and a court
reinstated him, saying that expert witnesses would be reluctant
to testify in child abuse cases if they feared retribution.
Although convictions for various child abuse “syndromes”
in Great Britain stalled for a few years, once Sir Roy Meadow
was reinstated, they continued apace. He is considered by
child advocates to be a slandered champion for the cause. He
was invited to present a keynote speech at the 2008 Shaken
Baby Syndrome conference in Vancouver, Canada, where he
made a strong point that anyone who questions shaken baby
prosecutions lives in a dream world and willfully refuses to
believe in the existence of child abuse.
1997: Louise Woodward
The American public first became widely aware of Shaken
Baby Syndrome as a result of the 1997 trial of 19-year-old
British au pair Louise Woodward for the murder of baby
Matthew Eappen. Matthew collapsed and died with a subdural
hematoma, a fractured skull, retinal hemorrhages and a healing
fractured wrist. Woodward was accused of violently shaking
him. Although she passed a polygraph administered by a worldrenowned polygrapher, the results were not admissible at trial.
Media coverage was intense. The trial was broadcast in its
entirety on Court TV. Numerous high-profile doctors testified
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for each side. The defense argued that the baby had no neck
injuries, despite the alleged violent shaking. The jury returned a
conviction for second-degree murder.
Judge Zobel, at a post-conviction relief hearing, reduced
the conviction to involuntary manslaughter and changed her
sentence from life to time served (279 days). Said the judge in
his decision,
Stripped of the jargon-filled overlay with which both sides
filled the record, the issue for the jury’s determination was
simply: Did the government prove beyond a reasonable
doubt that Matthew Eappen died because Defendant shook
him and battered him against an unyielding object? Put
another way: Did the defense evidence create a reasonable
doubt that the death resulted from some other cause?
It is essential to understand that at no time was
Defendant obliged to prove anything. The jurors were
never required to choose between competing explanations.
If the government’s theory failed to win them over, beyond
a reasonable doubt, their inquiry was complete; the
defense’s inability (if inability it was) to explain Matthew’s
injuries and their cause would make no difference.
What Woodward and a vast number of defendants since her
have been asked to do in court is prove their innocence without
the scientific means to do so. Judge Zobel rightly realized that
the burden of proof had wrongly shifted to Woodward. The jury
expected her to explain what did happen to the baby. When
her defense team was unable to answer that question to their
satisfaction, jurors decided the only possibility was that she
caused the death.
Since 1997, hundreds and hundreds of people have been
convicted of felonies for shaking babies, based solely on
medical symptoms and assumptions, in the absence of any other
evidence of abuse. Although DNA exonerations began in 1993,
resulting in the convictions of more than 250 people being
overturned, lessons learned about how wrongful convictions
occur have not been applied in the area of child abuse.
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2000s: Shaken Baby Syndrome
Although abuse theories have come and gone, Shaken Baby
Syndrome has proved remarkably resistant to criticism and
even to facts that clearly disprove its foundational assumptions.
Some 750 articles have been written about SBS in the past
30 years, most anecdotal, circular, and citing as authority a
relatively small number of doctors whose careers are tied
closely to the theory. An objective, scientific evidence base is
sorely lacking. Proponents recently admitted that confessions
comprise the strongest empirical evidence for the syndrome.
Confessions, however, especially those made under police
interrogation, are notoriously unreliable.
The good news is that things are changing in the field. A
growing number of prominent doctors have “seen the light” (as
they put it) and are risking their very reputations to challenge
the theory. As one put it, “You can only have so many pieces
in the outlier box before you have to question your hypothesis.”
The fight may last for a while, but at some point, Shaken Baby
Syndrome will go the way of ritual abuse in day care centers,
recovered memories, and Munchausen syndrome by proxy.
Change takes time. May this encourage anyone who is counting
days, months and years in prison. There will be an end.
What Is Behind the Witch-Hunt?
According to Norman Cohn in Europe’s Inner Demons,
a careful study of witch-hunts “can in fact be taken as a
supreme example of a massive killing of innocent people by
a bureaucracy acting in accordance with beliefs which … had
come to be taken for granted as self-evident truths. It illustrates
vividly both the power of the human imagination to build up
a stereotype and its reluctance to question the validity of a
stereotype once it is generally accepted.”
Americans have a strong tendency to believe that people are
good by nature and will naturally behave well if treated well.
If people are not behaving well, it would follow, they have not
been treated well. The remedy is to find who is responsible for
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the mistreatment and eliminate them. Those in the field of child
protection believe that child abuse is at the root of every societal
ill. Utterly eliminating child abuse is a noble cause, inspired by
beautiful visions of a just and peaceful world.
Utopian ideologies rest on a belief that humans and
governments are perfectible if only we construct the right kind
of society and eliminate the “bad” people. Sparkling, idealistic
ideologies have been responsible for genocide and unspeakable
evils throughout history. People long for simplistic explanations
for hard-to-understand events. They are relieved when they
perceive a clear cause for suffering and feel empowered to “do
something.”
According to writer Thomas Sowell,
Powerful visions may not only dispense with facts, they
can defy the most blatant facts for years on end. … The
more sweeping a vision—the more it seems to explain and
the more its explanation is emotionally satisfying—the
more reason there is for its devotees to safeguard it against
the vagaries of facts. … The very thought of condemning
the theory, or even testing it by evidence—seems
unthinkable.
It may be difficult to believe that those who have accused
you are motivated by noble ideals, but that is very likely the
case. They are basically good people, doing what they sincerely
believe to be right and good. They have the best of intentions.
People within our legal and medical systems have become
so determined to protect child “victims” that they are blind to
their failure to protect innocent adults and the children who need
them.
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The Legacy of Dr. Spock
In 1946, Dr. Caffey published his first article noting the strange
phenomenon of infants with fresh, healing and healed multiple fractures
of the long bones accompanied by chronic subdural hematomas.
That same year, Dr. Benjamin Spock published what would become
a runaway bestseller for decades: The Common Sense Book of Baby and
Child Care. In it, he applied Sigmund Freud’s theories to child-rearing.
Dr. Spock is said to have “single-handedly changed the way parents raise
their children” by discrediting traditional authoritarian approaches. Like
Freud, he believed that most adult neuroses were rooted in childhood,
with parents and teachers being responsible, however unintentionally, for
lifelong emotional problems experienced by adults.
Child rearing, said Dr. Spock, should be child centered. Children
shouldn’t be “disciplined” into maturity. They would naturally direct
themselves toward responsible adulthood by following their own will
(assumed to be naturally good). Physical punishments such as spanking
were deemed harmful to children.
These ideas had been set forth two centuries earlier by French
philosopher Jeans-Jacques Rousseau, who believed that humans were
naturally good but warped by society and civilization.
To his admirers, Dr. Spock was one of the great humanists and
liberal minds of the twentieth century. He stressed the innocent joys of
childhood. He believed in the perfectibility of man and the attainability
of a permanent utopia on earth. Although he denied advocating
permissiveness, he acknowledged that parents, in throwing off the old
authoritarian ways, had plunged headlong toward the opposite end of
the child-rearing spectrum, toward letting babies rule the roost. “We
have reared a generation of brats,” he wrote in 1974. “Parents aren’t
firm enough with their children for fear of losing their love or incurring
their resentment. This is a cruel deprivation that we professionals have
imposed on mothers and fathers. Of course, we did it with the best of
intentions. We didn’t realize until it was too late how our know-it-all
attitude was undermining the self-assurance of parents.”
Dr. Spock became very involved in liberal causes and marched in
Vietnam anti-war protests. He was arrested several times and once ran
for United States president as a Socialist. In 1988, at the age of 85,
he said, “I’m entirely convinced that all our troubles grow out of this
materialistic, capitalistic society…. The whole damned political and
economic situation must be changed.”
Most would agree that Dr. Spock’s ideas turned the world upside
down. Whether the change was for good or ill is a matter of debate.
I
What Can You DO?
used to wonder how people who had recently been
bereaved could pull themselves together enough to plan
the details of a burial and memorial service. My mother
explained to me: “It actually helps to have something to do,
something to focus on other than the loss and sadness.”
If you or someone you love has been wrongly accused of
shaking a baby, you not only feel crippling grief, but betrayal.
“I saved the child’s life and now I’m being accused,” wept one
babysitter. “Why?”
Although doing something about your situation will not
“solve” the emotional distress, it can “salve” it. It can move
your focus outside yourself, help pass time, and give you a
sense of purpose and accomplishment. What you do, however,
can hurt your cause rather than help it. Proceed with caution!
The most important thing is to find a good attorney. Ask
if he would be receptive to your doing research and passing
information on to him for consideration. Unless he has
defended a shaken baby case, his learning curve will be steep.
Be cautious. Don’t send too much information! Guard his time
by passing along only what is most important and relevant to
your particular case. Ideally, he will tell you what to research.
The bottom line that I learned well from this situation is that
you don’t have to play dirty, but you can’t be a passive person
in these kinds of fights. You have to be aggressive, you have to
fight hard, you have to play tit for tat. —Juan Melendez
exonerated by DNA
45
46
Keep and organize every piece of paper you receive
concerning the case. Date everything. Clearly separate police
records, CPS records, medical records, and legal records.
Retain a copy of everything you send to your attorney.
If the child survives and you are the parent, ask for a copy of
new entries in the medical record every time you see a doctor.
Guard these. Provide copies if your attorney or anyone else
needs the records but do not release your copy to anyone.
An attorney’s time is VERY expensive. You want to save
him as much time as possible. The devil will be in the details,
however, so give your attorney every devilish detail pertinent to
your specific case, organized and clearly marked.
Here are some things you might be able to do to pave the
road for your attorney. Clear everything you do with him before
proceeding, especially if it involves other people in any way.
Gather Supplies
Some people set aside a particular desk or table for their case. If
you are not an organized person, you might ask a trusted friend
who is organized to help you. Here are some items you might
need. Check thrift stores to save money. If you have an iPad,
iPhone or the like, it can serve several of these purposes.
• Calendar for the wall and/or refrigerator—perhaps a large
calendar pad for your desktop
• Spiral notebook for lawyer search (one color)
• Journal or notebook for chronological record (another color)
• Pendaflex file folders (third cut)
• Manila file folders (third cut)
• File boxes or filing cabinet
• Recorder (such as cassette tape, mp3 recorder, iPhone)
• Computer with internet access (or use library computer)
• Paper
• Copy machine, as well as ink or toner
• 4 x 6 index cards, some colored
• Dividers for 4 x 6 index cards
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• Box to hold 4 x 6 index cards
• Post-it notes, perhaps of various colors
• Box or wire basket in which to place things until filed
Record Everything that Happens
Remember that anything you write can be “discovered” by the
prosecution and used against you. To guard against problems,
confine your notes to objective facts. Avoid recording feelings,
impressions, assumptions and especially negative comments
about any person. Refer officials to your lawyer for comments.
• Note all court dates, deadlines and upcoming events on a
single central calendar. Take these dates very seriously!
• In a journal or notebook, keep a running record of every
phone conversation, meeting, and event relating to the case.
Note dates, times, names, contact information and positions
of any officials you talk to. Get contact information (e-mail,
telephone number, FAX number, mailing address). Keep
notes (or have a spouse or supporter keep notes) every time
you go to court. Note the purpose of the court date, who
attended, what occurred, what was decided.
• Retain copies of all correspondence and e-mails. Create a
folder for each person you interact with regularly.
• If you talk to CPS or anyone else in an official capacity,
request permission to record the conversation.
• After all official meetings, interviews and phone calls, write
to the person with whom you spoke. Summarize what was
discussed and ask the person to let you know by return mail
if you misunderstood or misinterpreted anything. Keep a
copy of the letter for your files. E-mail is OK unless the
subject matter is very important. If the subject matter is
especially important, send a letter by certified mail, return
receipt requested. This forces accountability. People
often “forget” what they say, and it can be easy for you to
misunderstand what they meant to say. As much as possible,
you want to be very clear to avoid further complicating a
complicated situation.
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People File
• Create an index card for each potential witness. File cards
alphabetically by last name. Include full name and contact
information (address, telephone, cell phone, work phone, email). Indicate how the person is related to you or the baby.
Note what that person may be able to testify to in the case.
List names and ages of the person’s children or other family
members. Include the OB-GYN, the baby’s pediatrician,
EMTs, doctors, detectives, CPS workers, friends, neighbors,
pastor, anyone you can think of that might testify.
• If possible, tape a photo of the person to the index card.
This can be very helpful for your attorney.
• In a different section of the card file or on a different colored
index card, make a card for each person involved in the
case who is not a potential witness: attorneys, attorneys’
secretaries, the judge, CPS workers, etc.
Statements from Potential Witnesses
• Without revealing any details of your case, ask friends and
relatives who knew and observed the baby to write down
everything they remember about you and about the baby.
Ask them to include dates and times as closely as they
can remember them. Be sure to include name and contact
information at the top of each statement.
For Babysitters, Letters from Other Families
• Without revealing details of the case, ask parents of other
children you have cared for to write letters about their
satisfaction with your services. These letters can be given to
you or sent directly to your attorney.
Medical Records
• If you are the parent of the baby, you have a right to request
copies of all the baby’s medical records and all prenatal
records. Call the pediatrician and any hospitals the baby
was in to ask what you need to do to get copies of all
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records. Do this as soon as possible. Ask the person you
speak with to be sure copies are readable and centered on
the page so everything shows. If you don’t understand
something on a chart, ask the doctor for clarification before
copying it for your attorney or a medical expert. Ask,
“What is this chart? What does it mean?” Use Post-It notes
for comments or clarification.
• Make sure ALL medical documents are clearly dated
and organized in chronological order. Tab according to
pediatrician and/or hospital, if the child was in more than
one hospital.
Family Health History
• Make a family tree or chart. Make a card for every near
member of the baby’s family, living or dead, and list any
known medical conditions and drugs prescribed. What was
the cause of death for any who have passed away? This
information may provide clues to possible genetic disorders.
Timeline
A chronology is one of the most important devices a falsely
accused individual can create in the preparation and
presentation of a defense. —Dean Tong in Elusive Innocence
Create a timeline of the baby’s entire life. If you’ve seen the TV
drama Without a Trace, you have the idea.
One way to start a timeline might be to make an index card
for every memory, event or piece of information, with the date
and/or time (as close as it can be determined) on the top line.
Note the source of the information (medical record, calendar,
observation by grandmother, whatever). Include prenatal
information. The timeline should include:
• When you met the baby’s father, mother, sitter.
• Dates of marriage, if applicable.
• When the baby was born. Premature? Multiple births?
• Date of divorce, if applicable.
• Dates of any prior contacts with CPS.
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• All doctor visits and their reasons, results or diagnoses.
• Times that all people cared for the child during the three
days prior to his collapse.
• All known accidents or injuries.
• All known falls.
• All vaccinations, including lot numbers. Was the baby sick
when vaccinations were administered? Any reactions?
• Dates of any childhood diseases.
• All known medications, including over-the-counter
medicines and when taken.
• Anything unusual observed by anyone at any time.
• Exactly when did someone recognize the child was in
serious trouble?
• What time was 911 called?
• What time were any other people called? (check phone
records)
• What time did the baby leave for the hospital?
• What time did the baby arrive at the hospital?
• What time did the parents arrive at the hospital?
• What time did the sitter arrive at the hospital?
• What time did the baby die, if applicable?
For the final day or two, break the timeline into small pieces,
even 10 minutes by 10 minutes. File cards chronologically.
Day in the Life
Outline a “normal” day in your household. Who lives there
and what are their relationships to each other and to the baby?
What is the normal daily schedule? Who else normally cared
for the baby? What, if anything, was different the day the baby
collapsed?
Photographs and Videos
Go through photographs of the child and organize selected
ones chronologically. Notice if there were any changes over
time. Stated one father: “We made a collage of pictures
that were time and date stamped from the baby’s birth until
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her collapse and we were surprised to see that at first she
was smiling but gradually her smile became ‘weird’ and
‘downward.’”
Such details can be important.
Review all videotapes taken of the child and perhaps edit
them into a DVD (iMovie on a Mac or a PC equivalent) so the
defense attorney can view what you consider most important.
Note anything unusual about the videos.
Growth Charts
If you kept any records of length, weight, etc., aside from
the doctor’s, make them available to the attorney and include
information on the time line.
Information about Attorneys, Witnesses, Judges, etc.
Investigate the history and education of everyone involved
in the case, especially prosecution expert witnesses. Find out
everything you can about the opposing attorneys, emergency
workers, medical doctors, nurse practitioners, nurses,
psychologists, social workers, guardian ad-litems, etc. Search
their names on the internet and at the library to find whatever
you can. Your attorney may wish to request college transcripts
or other information that you cannot procure.
Find as much history as possible for medical and CPS
witnesses, in particular, especially any who played a role in
transforming the case from a medical emergency into a criminal
case. Requests may be made under state and federal freedom of
information acts.
Research Other SBS Cases
Google returns about a million hits for “Shaken Baby
Syndrome.” As time allows, survey what is out there and print
what seems important. Find other cases similar to yours and
let your attorney know about them. He may want to contact
attorneys or medical experts that worked on cases similar to
yours.
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Find Medical Articles
If there is a university or medical library in your area, visit
it and learn how to access medical articles. A librarian can help.
Search for articles by any of the experts in your case, as well as
recent articles on Shaken Baby Syndrome or related topics. If
there is no medical library in your area, you can search PubMed
(Google it) and order articles you need through interlibrary loan
from your local public library. Ask your attorney to let you
know if there are any articles he’d like you to get for him.
Make a list of every symptom observed in the baby and
research all known causes for each symptom.
Learn About the Law
Learn as much as you can about the laws in your state. Find
out what requirements child protection agencies must meet to
receive funding.
Subscribe to Google NewsAlerts
Submit “Google NewsAlerts” for “Shaken Baby Syndrome”,
“blunt force trauma”, “shaking baby”, “abusive head trauma”,
names of your prosecutor, judge, and all doctors in your case,
as well as anything else you can think of that might be relevant.
This allows you to monitor nationwide news so you can alert
your attorney to any developments in the field of Shaken Baby
Syndrome and learn more about people involved in your case.
Live Carefully
Imagine that a video camera is focused on you every minute
of every day. Do not do anything you would be ashamed
to have shown to the jury in court. Steadfastly and calmly
maintain your innocence at all times. Be careful, even guarded,
about what you say. Never criticize authorities in the presence
of others. Do not post your thoughts on MySpace or Facebook.
The Indiana Supreme Court recently held that anything written
on MySpace is admissible as evidence and can be used against
you.
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How Can I Afford This?
hen time allows, assess your current financial
situation and get it on paper. You need to calculate
two things: your cash flow and your net worth.
Cash Flow
Your cash flow is your income minus your expenses.
(Hopefully the answer will be a positive number. If not, you’re
spending more than you’re making.)
Monthly income might include the following. List only
what applies to you.
Salary, wages, bonuses
Business income, if any
Interest income
Investment income
Any other regular income
Total income
Monthly expenses might include the following. List only
what applies to you.
Mortgage or rent
Homeowners or renters insurance
Property taxes
Homeowner dues or maintenance costs
Electricity
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Water and sewer
Natural gas or oil
Telephone (land line and cell)
Groceries
Meals out
Child support
Alimony
Day care, baby sitting
Health insurance
Unreimbursed medical expenses
Fitness (yoga, gym, sports)
Car payments
Gasoline and oil
Auto insurance
Tolls, bus, subway, taxis, transportation
Credit card payments
Student loan payments
Other loan payments
Cable TV/Videos/Movies
Hobbies
Subscriptions and dues
Vacations
Pet food
Pet care (grooming, vet, boarding)
Clothing
Household products
Gifts and donations
Grooming (hair, make-up, other)
Any other regular expenses
Total expenses
Subtract you monthly expenses from your monthly income
to find how much discretionary income you have per month:
Total income
– Total expenses
Discretionary income
Net Worth
Your net worth is your assets (what you own) minus your
liabilities (what you owe). Again, the result will hopefully be a
positive number. If not, you owe more than you own.
Assets might include the following. List only what applies
to you.
Cash on hand
Amount in checking account(s)
Amount in savings
Amount in money market funds
Marketable securities
Life insurance cash values
Home (market value)
Land (market value)
Business valuation
Automobiles
Boat, camper, trailer, etc.
Furniture, valuable personal property
Coin and stamp collections, antiques
IRAs
Pension and profit sharing
Money owed to you by others
Other investments or property
Total assets
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Liabilities might include the following. List only what
applies to you.
Charge card debt
Auto loans
Bank loans
Life insurance
Home mortgage
Taxes owed
Anything else you owe
Total liabilities
To find your net worth, subtract your total liabilities from
your total assets.
Total assets
– Total liabilities
Net Worth
What Does this Mean?
I once taught a class on money management. A good friend
came back the week after she finished this exercise and cried the
entire hour. She had known she was in trouble financially, but
now it was stark, in black and white. It was discouraging. After
she grieved, she made a plan and changed her situation.
You may not have previously looked at your finances in
black and white. It may be discouraging. If you need to cry,
cry. Then get tough. You now know what you have to work
with. Fortunately, you live in the United States. You can get
legal assistance even if you cannot afford it.
Even extremely wealthy people can be bankrupted by
lawsuits. In criminal cases, prosecutors are paid by the
government. They can afford to drag things out and wear you
down while drawing a good salary. You have to decide for
yourself how much you value truth and freedom. What’s it
worth to you? The answer varies from person to person.
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In our situation, Margie made it clear early on that she did
not want friends or family to mortgage their homes, deplete
their savings, and end up destitute as a result of this. She raised
$50,000 and tried to make do with that budget. In the end, it
cost somewhat more, despite the fact that the attorney worked
more hours than he billed. With just $50,000, no medical
experts could be hired. The trial ended with a conviction.
Perhaps a medical expert and a few thousand more dollars
would have made a difference. We’ll never know.
Here is what some people accused of shaking babies have
reported:
• We wiped out our savings and borrowed from relatives to
raise $75,000 for legal help.
• I had to take out two mortgages on my home to cover the
costs of the trial.
• The defense cost more than $100,000 and wiped out our
savings. I lost my day care earnings, which had provided
most of our income.
• The legal defense cost $400,000 and we had to rely on a
court-appointed lawyer for the appeal.
• About $100,000 was spent on the defense, $40,000 for
investigators and a panel of medical experts.
• Friends and relatives raised $80,000 for the defense. The
defendant sold his home and vacation property to raise the
$150,000 bond.
• We have over $160,000 in debt to pay my legal and therapist
bills.
• We took out all our retirement savings to pay the $80,000
the attorney charged us and he was incompetent. He lied to
us again and again.
From what I’ve read, many people have gotten a good
defense for about $100,000. Think about what you can sell,
but try not to panic and sell valuable assets for less than they’re
worth.
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A few people have been fortunate to have church members,
friends, or relatives raise large sums of money for their defense.
I’ve heard of bake sales and other fund-raisers being organized.
Such support is wonderful, but not to be expected. Other people
might volunteer to help financially. They may be more likely to
do so if they feel no pressure from you.
If you’re lucky, and an attorney strongly believes you’re
innocent, he may work more hours than he bills or even take
your case pro bono (for free). That has happened in a number
of Shaken Baby Syndrome cases. Defense attorneys rarely have
the opportunity to represent truly innocent clients, and some of
them take the fight personally, in the service of truth and justice.
Beware, though. Don’t even ask, let alone push, for special
consideration from an attorney. If your financial situation is
grim, especially if through no fault of your own, you should
reveal that to the attorney up front. No matter what, faithfully
pay as much as you possibly can on a regular, monthly basis.
The attorney may take pity on you and actually view helping
you as a highlight of his career! You never know.
Said one defense attorney: “I relish the opportunity to be
involved in a case like this even though when you represent a
person you believe is innocent, it’s much more pressure on you
than when you have a person who is arguably guilty. This was
a very emotional case for me. I lived it 24/7. I fully believed in
her innocence and I was going to do everything in my power to
help her.”
Criminal defense attorneys, after all, usually represent
criminals, many of whom feel entitled, expect legal assistance
for free and don’t bother to pay bills. Criminal attorneys are
burned by irresponsible clients again and again. If you show
appreciation, thank the attorney you choose (as well as the
attorney’s secretary and staff), and pay to the best of your
ability, rewards may come back to you in multiples. Attorneys
have great discretion in how they bill. Don’t expect special
treatment, but don’t despair at the beginning. You never know
who might step up to help you in your time of greatest need!
Your Savior: A Good Attorney
You must launch a swift and aggressive counterattack. Once
accused, you cannot vacillate, skimp on your resources, or do
something foolish. —Dean Tong in Elusive Innocence
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any people accused of shaking babies have never
before worked with a lawyer, and know little about
what’s involved. Suddenly and unexpectedly, the most
important decision of a lifetime must be made, fast. Don’t
delude yourself. This is not a misunderstanding. It will not
blow over when the authorities come to their senses.
Ask for a public defender or get any lawyer you can find
to join you during police interviews and scene investigation.
Police move quickly in homicide cases and will make every
effort to reach you before you reach an attorney. An attorney
will make it difficult for police to get that all-important
confession. The attorney you engage during the initial crisis
does not need to be the same person you hire to represent you
for the long haul until trial.
You might initially try one of many online resources for
quick help, such as www.totalcriminaldefense.com where you
can request a free case evaluation by entering your zip code or
talk to a defense lawyer by calling a toll-free number.
At this point, don’t obsess about how much this is going to
cost. If the case is handled well from the very beginning of the
crisis, you can potentially save hundreds of thousands of dollars
in the long run—not to mention your freedom. How much
would it be worth to you to avoid 25 years in jail?
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Caution. Police might seize your computer as evidence.
Anything on it about Shaken Baby Syndrome, especially if
dated before you were accused of shaking, could be considered
evidence that you knew you shook the child and were trying to
figure out how to cover your tracks. Be cautious about using
your own computer until you’re certain there is no risk. Do not
write anything on e-mail or paper or Facebook that could be
interpreted as incriminating. Although your heart might long
to say you’re sorry about what happened to the baby, such a
statement can be taken out of context and used as evidence to
convince a jury that you were sorry to have killed him.
Cheryl’s Story
Cheryl’s story will help you understand why a good attorney
is absolutely essential.
Three months after the incident, the county took the case
to a Grand Jury and got an indictment for injury to a child,
knowingly and willingly. I was not informed about it until they
called and said I had to turn myself in. I went down, pleaded
not guilty, and posted bail, $20,000. Then we had to find an
attorney. We didn’t have a clue. We’d never had to deal with
anything like this before.
We asked for recommendations. One friend advised us to
get someone good, no matter what the cost, but some of the
attorneys we called wanted $50,000 to $80,000 up front, and
we just don’t have that kind of money. I kept thinking, “I’m
innocent! Why should I have to spend this kind of money to
prove it?”
Finally, we found an attorney who said he’d do it for
$10,000, $5,000 down and the rest after the trial. We hired
him. It was a big mistake. Early on, I was apprehensive about
him but we’d paid him $5,000 and didn’t want to lose it. Things
kept getting postponed. He said it was the District Attorney.
He didn’t do any research. The only research was by a family
friend who’s a civil attorney. We found out later that it was our
attorney requesting all the delays, not the DA.
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When we finally went to trial, it was a disaster, an absolute
disaster. Our attorney was not at all prepared. He didn’t
object to anything. The DA got everything he asked for. My
family couldn’t believe it. My uncle was so angry! The jury
deliberated and it was a hung jury, 11 for guilt and one for
innocence. The juror who voted for innocence said that he had
been raised around the legal system and he knew I was being
railroaded.
After that, my aunt and uncle said, “That’s it! We’re going
to get the best lawyer we can.” My uncle mortgaged his house.
My aunt called a friend whose husband is a well-known civil
attorney and asked for a recommendation. He gave us three
names. We met with two of them. The other wanted more
money than we could possibly afford.
The lawyer we got was one of the best. He worked very hard
on the case and left no stone uncovered. At the second trial, it
was a hung jury with 11 for innocence. The one who voted for
guilt refused to deliberate or state his reasons. At the third trial,
three years after the incident, I was acquitted. It cost us over
$150,000 altogether, and we didn’t have medical experts. It was
interesting that the prosecution experts testified differently in
each of the three trials because more had been learned about
Shaken Baby Syndrome. At the last trial, the prosecution expert
said there is no way to time the injuries. That really helped.
Do You Qualify for a Public Defender?
The Sixth Amendment of the United States Constitution
guarantees you the right to assistance of counsel for your
defense. If you are deemed indigent (too poor to pay for an
attorney), the court will appoint an attorney for you, who will
be paid with public money. Large cities may have a public
defenders’ office with numerous lawyers on staff. Some
jurisdictions have no public defenders’ office. Instead, private
lawyers are assigned to cases and work on contract with the
state. If you are borderline indigent, you may be required to pay
part of the cost.
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A first step, even if you can afford a private attorney and
would prefer that alternative, would be to call your local public
defenders’ office if there is one. Look for contact information in
the blue pages (state government pages) of your telephone book,
or search the internet for “public defender [name of your city or
county].” Call and tell them your situation.
If you need an attorney desperately because the police are
pushing to question you or are searching your house, call a
public defender and ask what to do. He is in a good position to
recommend someone who can help you on short notice.
If you are not in crisis, check to see if the local public
defender’s office has a web site and learn what you can from
that. If the web site doesn’t specify who is eligible for a public
defender, call and ask. Different jurisdictions have different
requirements, based on one or more of the following: (1)
income, (2) assets, (3) debts and dependents. The financial
resources of your parents or other family members will not
be considered, but financial resources of your spouse will be.
You will likely be required to fill out a financial eligibility
form. Get a copy and fill out as much as you can, even if you
are not eligible. No matter who you eventually hire, this can
help clarify your current financial situation. A sample financial
eligibility form from Orange County, California, can be found
at: http://www.pubdef.ocgov.com/Def-financial.pdf.
Most states have some provision for partial indigency.
You may be able to obtain counsel from a public defender at a
reduced fee, perhaps 25-60% of the acceptable hourly rate of
private defense attorneys in your area.
You can’t choose your public defender. One will be
assigned. Luck of the draw. Although public defenders can be
some of the best attorneys, most face serious limits on time and
financial resources. Individual public defenders are sometimes
assigned to more than 1,000 cases a year, up to 350 at a time!
Less than 5% of expenditures for criminal justice in any given
year go to public defenders. With these constraints, there may
not be time to properly investigate the facts of a case or mount
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a good defense. Just to survive, most public defenders pressure
clients to plea bargain. Make it clear from the beginning that
you do not want to plea bargain because you are innocent. To
plead guilty would be to say you did something you didn’t do.
It would be perjury—lying under oath.
If you are assigned a public defender, ask if you’ll have to
repay any money if you’re convicted.
Consider hiring a former public defender. Some people
claim the average public defender is better than the average
private defense attorney, in part because of so much experience
with criminal cases. Former public defenders may be well
connected and on good terms with prosecutors and judges.
Choosing a Private Attorney
Once the initial flurry of events is over and there is time to
breath, you can begin a search for the best attorney to represent
you from now the trial. Where to start?
Expect your search for an attorney to take days, even a
few weeks. You are hiring an advocate and protector who
will become the most important person in your life for the
foreseeable future. You will be victimized twice if you choose
the wrong person. Lawyer jokes contain more than a little truth.
Some defense attorneys cannot be trusted. You will have no
choice but to trust, so find someone trustworthy. Remember, if
he loses, you pay. Take time to do this right but begin the search
as soon as possible!
Step 1: Start a List of Potential Attorneys
You might want to get a spiral notebook and start making
a long list and a short list of potential lawyers. The long list
will be for possible attorneys and the short list for probable
attorneys. List phone numbers and web site addresses. Try to
keep all notes relating to your search in the same notebook and
be sure to write names, dates, and times. The notebook may
end up looking like a mess, but at least you won’t have bits and
pieces of paper scattered all over, getting lost or misplaced.
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To build your list:
1. Call the public defenders’ office in your city or area,
if there is one. Someone there might be able to make
recommendations even if you don’t qualify for service.
2. Do an internet search for “Shaken Baby Syndrome” in
your state or nearby big cities to see if any recent cases
show up. Access newspaper articles and familiarize
yourself with those cases. Consider calling the
defendants’ family to see what they say about the attorney.
3. Search “child abuse defense attorney” with the name of
your nearest city and put any hits on your list.
4. Check out the search features on sites like: www.findlaw.
com or www.lawyers.com.
5. Ask friends and family if they know any good lawyers.
Even if the people they recommend aren’t criminal
defense attorneys, they travel in lawyer circles and might
be able to suggest someone they know.
6. Become familiar with the web sites of the National Legal
Aid and Defender Association (www.nlada.org) and the
National Association of Criminal Defense Lawyers (www.
criminaljustice.org). Are there local branches? Check
their websites or contact them for recommendations.
7. Check the Yellow Pages for criminal defense attorneys.
8. Contact local bar associations or legal organizations to
see if they know of referral services or online directories.
(They generally cannot make recommendations.)
9. You might want to contact some attorneys or doctors
around the country who are actively involved in defending
Shaken Baby Syndrome/Abusive Head Trauma cases.
Ask if they can recommend anyone in your area. Add any
names they recommend to your list.
10. If there is a law school in your area, ask professors for
recommendations.
11. If you can spare the time, sit in on some criminal trials at
your local courthouse. They are open to the public. If a
defense attorney impresses you, put him on your short list.
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If searches don’t turn up enough names in your immediate
area, search again in widening geographical circles. Add to
your list or subtract from it until you have hired an attorney.
Step 2: Clarify What You Want
1. Someone board certified as a criminal defense attorney.
2. Someone who is good in court. Trials are theater.
3. Someone who is good at writing arguments and will file
pretrial motions. 95% of cases turn on paperwork filed
before trial.
4. Someone who already knows the relevant laws and won’t
charge you for the time it takes to learn them.
5. Preferably someone who has defended a Shaken Baby
Syndrome case.
6. Preferably someone with a medical background or who
has worked on medical malpractice cases. It will cost
you if your attorney has to start at the very bottom of the
learning curve.
7. Someone who has worked with medical experts, if
possible. A good medical expert may well be more
important than a good attorney in a shaken baby case!
8. Preferably someone who will represent you in all aspects
of the case: criminal, family, and civil. Otherwise,
you’ll have to pay and educate more than one lawyer.
Miscommunication amongst attorneys will be a constant
danger. It may be impossible to find a lawyer competent
and willing to handle the “three-ring circus” of criminal,
civil and family court, but it’s worth trying.
9. Someone who believes you’re innocent and is committed
to giving your case the attention it deserves.
10. Someone willing to talk to and learn from others who
know more about Shaken Baby Syndrome than he does.
In terms of the type of evidence that we had to deal with, this
was more like a medical malpractice case than a criminal trial. –Joseph Krakora, attorney for William Carey
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Step 3: Pare Down Your List to 3 or 4
1. Scan through the web sites of the attorneys on your short
list first. Cross off those that don’t impress you and
highlight those that do. As time allows, look at web sites
on the long list and add names that look especially good
to the short list. While you’re there, browse each web site
for useful information if time allows.
2. Search the attorney’s name on the internet. No need to
read everything that comes up, just notice how much
comes up and scan through it. Note anything interesting
in your notebook.
3. Check the online archives of the local newspaper, perhaps
through your library’s web site. Has there been publicity
about this lawyer? If it sounds interesting, add the name
to the short list.
4. Check the state bar association web site for a list of
lawyers in good standing. Eliminate any lawyers who are
not on that list.
5. Keep adjusting your lists until just 3 or 4 top candidates
remain.
Step 4: Begin In-Depth Background Checks on Your Top 3 or 4
You are hiring a professional “employee.” You want to find
as much background information as you reasonably can before
scheduling an appointment. Set aside several pages of your
notebook for each top candidate. You want to find out whether
your prospects prepare well, fight hard, play fair in the eyes of
the court and convince juries with their evidence and arguments.
1. Closely review the attorney’s web site and take notes. Is
he board certified? In what area(s)? “Board certified”
means he has demonstrated special competence in a
particular field and his competence has been certified by a
state board of legal specialization.
2. Do an in-depth internet search for the attorney’s name
and read everything you find. Take notes on anything you
want to remember. List cases won or lost.
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3. Check www.martindale.com to see if he has a rating of
A for legal skills and V for ethics. Many good criminal
defense attorneys do not participate in this rating system,
but check just in case.
4. Check his rating in www.avvo.com, another rating system.
5. Where exactly is his office located? Be cautious about
high rent areas and classy offices. YOU will pay for that
rent as part of his hourly charge. A good attorney with
lower overhead might pass the savings on to you.
6. Find out if the courthouse or university has a law library.
If time allows, call or visit it and ask the librarian for help
in finding anything there about or by the lawyers you’re
considering as top candidates.
Step 5: Call the Office
You are still collecting background information. You might
decide against an attorney based on your initial call.
1. Briefly state the charge you’re facing or your situation.
2. Ask if the lawyer has represented anyone in a similar case.
3. How much does he bill per hour for a case like this?
($100-$300 per hour is a general range. Remember that
more skilled attorneys who charge more per hour may
actually cost less in the long run.)
4. Is he scheduled for any trials now or in the near future?
Where and when, if known? (Trials are open to the
public. Observe him in the courtroom if possible.)
5. Does the attorney offer a free initial consultation? For
how much time? (We once had a secretary say yes but
then the attorney tried to charge us. That’s a bad sign.)
6. If no free consultation is available, how much would an
initial consultation cost? How much time would it entail?
7. Is there any paperwork to complete before an initial
consultation? Can you send it to me so I can fill it out in
advance? (If possible, complete paperwork and return it
to the attorney prior to your initial meeting.)
8. Does the attorney carry malpractice insurance?
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9. Is there anything else I should know at this time?
10. Can I speak to the attorney himself for a few minutes if
he’s available, or could he perhaps call me back at his
convenience?
11. Might it be possible to get a few references or speak to
some clients who have worked with him?
12. If all seems well after you’ve asked questions like the ones
listed above, schedule an initial consultation. Note the
date, time, address and directions to the office.
Step 6: Call References if Possible
Here are some possible questions to ask references. If they
talk freely, you will learn more by listening than by asking
questions. Leave silent spaces in the conversation so they’ll be
encouraged to elaborate.
1. Do you feel he did a good job for you?
2. Was he difficult to reach?
3. Did he return your calls within a reasonable time?
4. Was he on time for appointments?
5. Was he organized? Did he lose or misplace things?
6. Did he keep you informed about what was happening on
your case?
7. Was he able to devote adequate time to your case?
8. Is he a good listener? Did he treat you with respect?
9. Did he understand the facts of your case and argue them
clearly?
10. Did he meet deadlines?
11. Did he ask for a lot of extensions? Do you feel the
extensions he requested were warranted?
12. Was he willing to consult with other lawyers?
13. Was he a know-it-all? Did he react strangely to anything?
14. Was he aggressive without being unpleasant?
15. Was there anything that surprised you or anything you
wish you’d known earlier?
16. Is his integrity good? Can you trust him to tell the truth?
17. Do you feel that he did a good job for the money?
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Step 7: Prepare for Initial Consultation
You will save yourself a lot of money by not wasting
any attorney’s time. Prepare a folder to leave with your top
prospects. Keep copies of everything in your own records. The
folder you give the attorney might contain such things as:
1. Your name and contact information on the outside of the
folder. Include phone, cell phone, e-mail, address, FAX,
and any other contact information you have.
2. All documents you received from police, doctors or the
court, including bail papers.
3. Police report if there is one.
4. Any medical records or documents pertaining to the case.
If you are the parent of the child, include copies of all
medical records you have, including pediatric, prenatal
and hospital records (request them immediately).
5. Directory of people who are involved, including contact
information if available. Include the names, ages and
relationships of all people who live in your home. List
potential witnesses and what they might know about the
case. Include names of doctors, police officers, parents of
the baby, anyone you can think of that is involved or that
he should know about. Photos can be helpful. Keeping
track of who’s who in these cases can be a daunting
challenge and he will appreciate a ready reference.
6. Write your account of what happened. Include as many
dates and times as you can. Although you will tell your
story at the consultation, a written account can serve as a
reference in case he forgets a detail. State what you have
been accused of doing, when the arrest occurred and under
what circumstances, who was involved, etc.
7. If you have started to organize a time line, include a copy
of what you have so far.
8. Include anything else you think might help. Some
possibilities are a photograph of you with the baby and a
photograph of your family. Include photographs of the
location where the alleged assault took place so you can
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refer to it as you tell your story. Draw a diagram of the
floor plan if you think it would help illustrate your story.
Prepare a list of questions not yet answered by your research
Ask any questions that remain outstanding prior to leaving.
1. How long have you practiced law in this state?
2. What did you do before this?
3. What led you to this area of law?
4. Have you ever defended a Shaken Baby Syndrome case?
What was the final result?
5. Do you have any education specifically relating to child
abuse or Shaken Baby Syndrome?
6. Are you aware of current issues and recent research in the
area of Shaken Baby Syndrome?
7. What other kinds of child abuse cases have you handled?
8. What percent of your practice is in the area of child
abuse?
9. Do you know other attorneys who have dealt with a
Shaken Baby Syndrome case?
10. Would you be willing to consult with other attorneys who
have experience in this kind of a case?
11. Do you think there is a chance these charges could be
dropped before trial?
12. Have you written any articles for law journals?
13. Have you presented at any legal conferences or taught law
school?
14. How many cases have you tried in front of juries? What
were the outcomes?
15. What percentage of your cases end with a plea bargain?
(Make it clear that you do not want to plea bargain
because you are innocent. A plea bargain would require
that you perjure yourself by lying under oath.)
16. Would you or anyone in your office be able to handle
related actions in civil or family courts? If not, how
might you work with my lawyers in those areas? Can you
recommend anyone to help in those areas?
17. Do you have time to handle this case? Are you available
to take action at once? How many other cases are you
handling at the moment and what stage are they in? Are
any near completion? (Some excellent attorneys do a very
poor job when they are overloaded.)
18. Would you personally handle my case or would it be
someone else in your office? If others will be involved,
can I meet them? What is their level of experience? At
what rate do you bill their time? (Good paralegals and
secretaries can save you money.)
19. What would be your approach to dealing with this case,
based on what you know now? What kind of action might
you take immediately?
20. Would you be receptive if I were to do research and
forward what I find for your consideration?
21. What will happen if you unexpectedly become ill or
unavailable?
22. Do you have a good relationship with the state attorney’s
office?
23. How do you prefer that I communicate with you?
Telephone? E-mail?
24. How soon can I expect phone calls and e-mails to be
returned?
25. Would it help for me to save all questions and information
for a regular phone call so we can stay on the same page?
26. Can a family member or supporter who is good at research
assist or share information with you? (Family members
are not covered by attorney-client privilege. Some
attorneys will refuse to even talk with them.)
Prepare questions about money. Do NOT be afraid to talk
about money, but save money questions for the end, after you’re
sure you have a final candidate. Do not bargain shop, but be
wise. A good attorney can do a lot in very little time.
1. How do you charge for your services? (Generally, he’ll
want a retainer to begin with and will bill by the hour.)
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2. How much would you need for a retainer? ($25,000 is
very common for a case like this.)
3. What are the hourly rates for people who will work on this
case? (Him, secretary, paralegal, other attorneys)
4. Is your rate the same during a trial?
5. Is there a separate charge for overhead?
6. In what increments do you bill for time? (Generally 6 or
15 minutes.) If I call and we speak for 4 minutes, how
much time would be billed?
7. What other kinds of expenses or fees might be involved?
8. Do you charge to send or receive a FAX?
9. Do you charge for photocopies?
10. What ancillary services might be needed? Detective?
Expert witness?
11. Would you anticipate any travel? How do you bill for
travel time? Expenses? Hotels? Per diem?
12. Do you have a standard contract? Can I get a copy to read
at home? (Do not sign until you have read it and have a
clear understanding of what you’re committing to.)
13. Will I receive a monthly accounting of what charges have
been billed during the month?
14. Might we be able to work out a payment plan?
15. Is there any way I can defray or help keep down costs?
16. Would you be willing, for a set fee, to spend a little time
thinking about this case and sketching out a tentative plan
of attack or “to do” list? What documents or evidence
need to be gathered? How would you approach the case?
What motions might you file? Would you do depositions?
How might you find expert witnesses?
17. Once that’s done, could you prepare a tentative budget,
with a rough estimate of what it might cost for your time,
expert witnesses, trial? This can be very rough. I know
you can’t predict the future and this will change as time
moves on, but it would be helpful to have a ballpark
estimate of the cost, knowing what we know now.
18. How much would you charge to prepare this initial plan?
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Don’t expect answers to all questions immediately. The
attorney can e-mail or call you later at his convenience.
Step 8: Initial Consultation
Now that you’re prepared, it’s time for the consultation
itself. The purpose is for you and the attorney to evaluate each
other, to determine if there is a “match.” He may not want to
represent you, even if you want him.
1. Dress professionally. Bring your notebook and questions.
2. Arrive a few minutes early.
3. Bring your spouse if possible.
4. Smile, make eye contact, and shake the attorney’s hand
firmly. Lawyers can be intimidating and that’s not
necessarily bad. Don’t act intimidated, even if you are.
You want a warrior. You want someone with confidence
but not so much ego that he’s easily offended.
5. Be polite, open, inquiring. You want to convey that you
mean business and expect professionalism.
6. Does he appear to be well organized and competent?
7. Let him open and direct the conversation. He may want
to chat for a few minutes to break the ice and get a feeling
for you as a person. Beware of too much “chatting”
though, especially after the first meeting. A friend of mine
once treated his attorney to dinner and was billed $350 for
the time! We once paid a lawyer for time he used to tell
his latest lawyer jokes. The joke was on us!
8. Be completely honest. You are protected by attorneyclient privilege. Tell the truth, the whole truth, and
nothing but the truth.
9. Don’t be tempted to make a lawyer your therapist. Find
less expensive sources of emotional support.
10. Before time is up, check your list of questions for any that
remain unanswered. Don’t push too hard for answers.
The lawyer may waffle or squirm and refuse to answer
money questions in particular, but he will be on notice that
you care and expect integrity.
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11. Before leaving, clearly state what you will do next and
what you understand he will do next, if anything. If he is
willing to accept a flat fee to prepare a plan of attack, pay
him and ask when you can expect it to be finished. ($250
might be a reasonable amount for this.)
12. Follow through on anything you agree to do, and pay
promptly. Criminal defense attorneys regularly deal with
flaky people who “forget.” Be different.
Step 9: Decide Who to Hire
Once you have met with all your top candidates, take time
to absorb and evaluate everything. Talk things over with your
spouse and perhaps parents or trusted supporters. List the
pros and cons of each candidate in terms of expertise, price,
availability, and your feeling of comfort with and confidence in
each. Sleep on your decision.
Was the attorney well dressed? You would be surprised
at how many defense attorneys appear in court underdressed,
under-prepared and unprofessional. In court, image is
EVERYTHING! The impression he makes on the judge and
jury is important. On the other hand, beware of hiring someone
who looks exceptionally rich or wears expensive, flashy clothes.
That might give a jury the idea you’re wealthy or trying to
buy your way out of trouble. Think about the impression the
attorney will make on a jury of average citizens in your area.
Does he make you feel at ease? Treat you with respect?
Look you in the eyes? Listen? Seem to care? Does he seem to
recognize that you might be innocent?
Defense lawyers are not trained to defend innocent clients.
You may be their first. Technically, in the adversarial system,
truth is not the responsibility of defense counsel. Their job is to
use every lawful means to exonerate clients, even guilty clients,
and/or to mitigate punishment. A public defender wrote:
It is an axiom of criminal defense practice that you
represent your guilty clients as zealously as you do your
innocent ones (not that you can always tell the difference).
A client who you really believe is innocent … does not
happen very often. In fact, it happens rarely enough to be
considered remarkable. One of the awkward truths about
being a public defender is that you are in the practice of
representing people who are, indeed, guilty as charged.
If you aren’t comfortable with an attorney, even for reasons
you can’t define, don’t hire him if there’s an alternative. If there
is “chemistry” and you like each other, that’s a good thing. You
want someone you can trust, who will fight for you and take the
legal burden off your shoulders.
If an attorney promises he can win your case or says
your case will be simple, hire someone else if possible.
Unscrupulous attorneys have enticed prospective clients into
paying a retainer, then done nothing or blamed the judge or
prosecutor when promises don’t materialize. Lawyers swim
with sharks. Some are sharks. You want an attorney who will
fight for you, not a shark who will prey on you.
Before making a final agreement, review the tentative plan
of attack and the budget you paid him to prepare. Get all your
questions answered. Reiterate that you realize he cannot predict
everything that might happen, how this will end, or how much it
will cost by the time it’s over.
Be sure to have a written fee agreement. Set out in advance,
in writing, what you expect from the attorney and what he
expects from you, to minimize the risk of misunderstandings.
If you locate and hire a good attorney, you are well on your
way to a positive outcome (under the circumstances). Take a
deep breath and hand the reins to your new attorney. Then step
back and let him take the lead. Give yourself time to grieve.
Do something nice for yourself. The most important thing you
can do has now been accomplished.
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I
The Attorney’s Assistant: YOU
f you have done a good job of selecting your attorney,
a great weight will shift from your shoulders to his.
Optimally, you are clear about what he needs and he
is clear about what you need, so the risk of surprise,
misunderstanding and miscommunication has been
minimized.
If you hired an attorney prior to reading this, you might
want to schedule a time to clarify anything that could potentially
lead to misunderstanding. Some attorneys are touchy and easily
offended, which is one reason it is best to get all questions
answered before signing on with one.
To get the best service from your lawyer:
1. Treat him and everyone on his staff with courtesy and
consideration. Send thank you notes or thoughtful gifts.
2. Give him everything he needs to do the job. You can
save him a lot of time and work by procuring medical
records, articles, and other documents he needs. Ask him
to let you know what you can do and do what he asks in a
timely manner. Pull as much of your own weight as you
can. Clearly date and label everything you send to him.
3. Don’t micromanage. Your attorney is a professional.
Although you are technically the “boss” because you pay
the bills, he is the expert.
4. Do not withhold any information from him. You are
protected by attorney-client privilege. As your advocate,
he needs to know everything you know.
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5. Never lie to your attorney or ask him to lie for you.
6. Pay your bills faithfully, to the best of your ability. If an
unexpected emergency puts you in a cash crunch, let him
know as soon as you know and pay something, even if
it’s not a full payment. If he sees you making sacrifices
and doing your best to pay even when it hurts, he is more
likely to have mercy and perhaps provide additional time
and effort free of charge. He probably has clients who
aren’t faithful about paying. Be different.
7. Although it is unfair and unjust that you as an innocent
person should be in this situation, don’t complain about
what it costs. It is not your fault you have been wrongly
accused, but it is not the attorney’s fault, either!
8. Return calls and e-mails promptly. Inform him
immediately if your contact information changes or if
anything happens that he needs to know.
9. In your notebook, write questions, thoughts or information
and leave some space. Instead of calling or e-mailing
every time you think of something, save questions and ask
them all at once, preferably at a regular, agreed-upon time.
Telephone calls can cost you BIG time. Endeavour to
avoid interrupting or distracting him. Honor his personal
time. Do not call him at home or after hours.
10. Recognize that he has other clients and cannot always
respond to you immediately.
11. Be patient. This is not easy for anyone. Guard against
unrealistic expectations. The system can be ponderously
slow. Your attorney didn’t make the laws or the “system.”
They probably frustrate him, too. They’re facts of life
you have no choice but to live with. Winning in the end is
what’s most important.
12. Be on time for all appointments. Value his time. You’re
paying for it!
13. Don’t insist that your attorney tell you everything. There
may be information that he needs to keep confidential,
even from you.
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Remember that your attorney is your interface with the legal
system. Don’t be tempted to directly contact the judge, the
prosecutor, or any prosecution witnesses. Don’t do anything
without your attorney’s knowledge. He is aware of dangers you
don’t know about. Find a lawyer you can trust and trust him.
Changing Attorneys
Unfortunately, there are unscrupulous defense attorneys. If
your attorney lies to you, doesn’t keep you informed, or seems
to bill for more than he produces, you may have no choice but
to consider another lawyer. If you have already paid a large
retainer that was difficult to raise in the first place, you might
have another legal battle on your hands to get some of it back.
This is an unfortunate situation. You must again evaluate
how much truth and freedom are worth to you. People have
regretted not changing attorneys prior to a trial in which their
attorney did nothing to aid in their defense. Some SBS defense
attorneys have come unprepared, have neglected to challenge
any of the prosecution’s “evidence” or object to anything, and
have even slept during the trial. You can appeal on the basis of
ineffective assistance of counsel, but unless yours was a public
defender appointed by the Court, the Appeals Court might deny
on the basis that you had the option to switch lawyers!
If you decide you need another lawyer, sooner is better than
later. You can research your options (see Choosing an Attorney)
while continuing to work with the first attorney. What you find
may convince you that you’ll be better off making the best of
the attorney you have, or you may learn that better alternatives
are available. If you interview any other attorneys, tell them
your situation and ask the cost and what would be involved in
changing attorneys.
If you know you need a change, change. Sooner is better,
and costs less, than later. It is safer to plea bargain than to go to
trial with a lawyer who is not prepared to mount a good defense.
When it’s over, he’ll go home to his family and forget about
you. You might pay for his failure with years in prison.
D
What to Tell Others
efendants should not talk about their case with anyone.
“What?” you ask! The worst thing you can even
imagine just happened, and you’re forbidden to talk about it
with anyone? Why? What can you say to all those people
asking questions?
Said one babysitter to me in an e-mail,
I wish I could go into detail more about our case but we
have been instructed not to at this time. This part is hard
for my husband and I because we have nothing to hide and
want to seek help in understanding this mess.
If you are suspected of a crime, police and prosecutors
very much want to convict you. The general public probably
assumes you are guilty. Why else would you be accused? What
you say about your case can be misinterpreted and repeated to
someone else, who further misinterprets it and so on. It can all
come back to bite you. It is for your own protection that you
should not talk to others about the specifics of your case.
Here are some examples of what has gone wrong when
people talked about their case:
• One young father told a trusted friend that after his baby girl
became unresponsive, he shook her to awaken her. A TV
reporter interviewed the friend, who demonstrated a gentle
back and forth motion with his hands. To a prosecutor or
potential juror, that signals guilt.
• Without consulting his attorney, one young man wrote two
heartfelt letters to the baby’s family. He said he had been
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“eating himself up with pain” from losing this child he loved
so much, plus feeling responsible in some way because it
happened on his watch. The child’s family forwarded the
letters to the District Attorney. Even though his sorrow
stemmed from the fact that he had been unable to save the
baby’s life, not from any guilt about hurting him, the letters
very much damaged his chances of winning in court. He
took a plea bargain.
• If you go to jail and tell anyone why you’re there, you risk
becoming the victim of a “jailhouse snitch.” Despite their
notorious unreliability, convicted felons have been called by
prosecutors to testify that a suspect confessed to them in jail.
Often this is done in exchange for a plea deal or hoped-for
leniency in their own cases.
What to Tell Your Children
One of the most difficult decisions a parent must make is
what to tell the children. As much as possible, you want to
shield children from the storm—to provide consistency and
love within the shelter of a secure home. Depending on media
coverage and their ages, you have to tell them something. It
might be better to talk with one child at a time, and to have the
parent who has not been accused initially break the news.
Most children know the stinging feeling of being wrongly
accused. If you are aware of a time they felt that way, remind
them about it and have them think back to how they felt at
the time. From there, you can tell them that as they probably
guessed, a very bad thing has happened. “Some people think
Mommy hurt the baby. She feels very, very sad that the baby
was hurt but she did not do anything to hurt him. She feels
that way you did when somebody thought you did something
wrong but you knew you didn’t. She needs all of us to be gentle
with her and show her our love. We don’t know exactly what
happened or why the baby had to go to the hospital. We will do
our very best to get this straightened out. We don’t want you
to worry or be afraid. We love you so much. Sometimes bad
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things happen and when they do, we just have to do our best and
help each other as much as we can.”
Be strong in front of your kids. Act as normally as you can
while around them. If you need to cry or process emotions,
find a place or time away from them. It’s OK to cry in front of
kids, but be careful not to become an emotional wreck in their
presence. They will suffer, but you can mitigate their suffering.
They are young and have even less control than you do over the
situation. Your perceived strength can shelter them.
The whole event can be terrifying for children and they
may not reveal what they’re thinking. Ask them. Consider
setting aside a “listening time” of maybe 15 minutes for each
child once a week. Focus on them and listen. Love them and
let them talk about anything they want to talk about. With
everything that is going on and your strong needs, you must
make a conscious choice, a commitment, a resolution, not to
neglect your children’s needs.
If at all possible, prevent their being taken into foster care.
Even if the foster parents are wonderful, which is by no means
guaranteed, you have no control over the other children in
the home. In our case, the first order of business for Margie’s
husband was to figure out how to get the kids to another state
to stay with a grandmother. I thought he was overreacting
at the time, but he understood better than I did. He set up an
appointment for the children to see their pediatrician for a
well-child checkup and bought tickets to leave the state the next
day. A CPS caseworker gave permission over the phone. No
expense or effort was spared to get the children to safety and
under the care of a trusted relative.
One child was nearly 3 and the other was 7 months. They
were unaware of media coverage. They had never been away
from their parents but adapted quite well and connected daily
by telephone. The years-long limbo was difficult, but much was
done to ameliorate potential permanent emotional damage.
Now that it’s in the past, my sense is that the kids trust
their parents more than most kids. Long-delayed promises
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finally materialized and the family was reunited. To use my
initial analogy, the parents “flew the plane to the ground” and
protected their children from what damage could be avoided.
What to Tell the Media
My fear is having reporters outside my house, or worse, them
seeing my children.
—SBS Defendant
What to Tell Family and Friends
I hope this book will be something you can share with
trusted friends and relatives who want to know what is going on.
Although you cannot talk about your case, you can talk about
Shaken Baby Syndrome in general. The more you know, the
more you can talk, without saying a word about your own case.
Four interesting articles, including “The Elephant on the
Moon” can be downloaded from the top of this web page:
http://www.sharplaw.biz. The author, Elaine Whitfield-Sharp,
was one of Louise Woodward’s attorneys.
Every family is different and every case is different, but
many families draw closer when facing the crisis of false
allegations. Said one man exonerated by DNA after years of
solitary confinement: “There are two things I know. Family is
everything, and family is everything.” Said another, who was
cleared of shaking a baby after 21 years in prison: “I learned
how strong a family can be. I learned never to give up hope.
And I learned never to take anything for granted.”
Some families have been so certain the charges were all
just a big mistake and truth would prevail that they refused to
acknowledge the gravity of the situation. Wrote one sitter:
In 1896, gold was discovered in the Klondike region of
Canada’s Yukon Territory. Newspapers reported the story in the
midst of an economic depression, and readers were electrified.
The last major gold rush in history was on! Reporters spun
stories around every snippet of information or misinformation
and offered sage advice as to the best way to get the gold.
People by the hundreds walked off their jobs, said goodbye to
their families and headed north to where, the newspapers said,
gold nuggets lay on the ground just waiting to be picked up.
Wrote historian Pierre Berton:
Everyone in my family believes in my innocence so much
that they think nothing could go wrong. They can’t offer
any emotional support, which is what we need right now.
My sister, when I told her the trial will be four days, said
she can’t get off work that long so pick the best day for her
to come. When I asked my lawyer what he thought, his
troubled laughter gave way to genuine irritation and he said,
“Are you making it clear to people that you’re fighting for
your life here? Are they not understanding how serious this
is? Convenience, work schedules and your desires not to
impose aside, you’ve got to be bold enough to ask everyone
you can to be there for you as many days as possible!”
Anyone who raised an alarm back then, saying people
were being sent unprepared into a deadly wilderness,
was shouted down and considered a traitor. The U.S.
Government spent millions of dollars promoting an allAmerican route to the goldfields, but none of that money
went to actually pioneering the proposed routes. What
happened to the people that attempted those routes was
criminal. Hundreds set off to horrible deaths because of
the media blitz. The media had a hot story. The gold rush
was helping pull the nation out of a depression. They didn’t
want any rain on their parade.
In the same way, today’s media seizes on Shaken Baby
Syndrome stories without considering the harm that can result
from slanted coverage or a rush to judgment. “It is very easy
to be falsely accused of child abuse, and it is exceptionally
difficult to be exonerated in court. More of these trials end in
the wrongful conviction of the innocent than any other type of
criminal case. Widespread media attention has caused a state of
hysteria in which people who are accused are presumed guilty.”
(Quoted from the web site www.accused.com.)
Remember the objective of the media is to make money.
They want stories that sell, that get an emotional “rise” from
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the audience. Shaken baby stories are perfect, with plenty of
potential spinoffs to keep things riled up, such as how to ensure
your baby is in safe hands. People assume what’s in the paper
or on TV is accurate. Righteous indignation reaches a boiling
point. How could anyone do something so horrible to a tiny
baby? If lynch mobs were legal, they’d be on the streets!
For reporters, truth is secondary to ratings. Sensational
aspects of stories are overemphasized. Nobody bothers to check
simple facts. Our newspaper said Margie’s bail was $100,000
when it was actually $10,000. You can only imagine what less
easily-verified facts are slanted and misreported!
If your newspaper allows online comments, my advice is do
not look at them at all. People can be incredibly ugly when they
think they “know” you’re guilty. I have been stunned by some
of the horrible comments I’ve read in cases where there is very
little to implicate the accused except that she happened to be
with the baby at the time. I write comments when I can, trying
to cool “emotional wildfires” by dousing them with some facts
about the weakness of Shaken Baby Syndrome theory and the
number of people who have been exonerated by DNA.
People get emotionally worked up, but their wrath isn’t
really against you personally. They are angry at an archetype,
a dark mythical being of their imagination that resembles you
only superficially.
At most, you might ask an educated supporter to write
general online comments and attempt to infuse a little reason
into the debate, if that person commits to relay nothing to you
about what other people say—other people who don’t have any
idea what they’re talking about. Said one defendant,
We were splashed all over the news like a couple of
monsters. They even printed things that were not true, like
that our son was still in the hospital with all kinds of tubes
coming out of him and that he was a vegetable. In fact, our
son had been out of the hospital for about a month and was
doing well. The doctors were amazed at how well he was
doing.
Said a person after being exonerated by DNA,
I could never quite figure out what led to the hysteria. It
just got legs and took on a life of its own. The story against
me just grew and grew. Who even made it up? Who started
it? Who is the original person that said, “Well, I’ve got an
idea. Let’s make up a story?”
In one case, a television station aired the picture of a
babysitter along with a story about a different baby being beaten
to death. The sitter had nothing to do with the case reported.
The station combined two good stories into one “better” story.
Talking to the media can backfire, as it did in the movie Cry
in the Dark. Reporters are under no obligation to tell you the
truth about their intentions. You must focus on winning your
case in a court of law, not in the court of public opinion. It is
safest to be silent, even if the media is hysterical.
Ask your attorney to talk to the press. Invite as many people
as possible to attend every hearing and surround you with
bodies to passively block cameras as you walk into/out of the
courthouse and courtroom. Someone (friend, family member)
might carry several of the defense attorney’s business cards to
give to pushy reporters.
Even after an acquittal, reporters sometimes express shock
and dismay or suggest that a guilty person walked free. Said
one acquitted babysitter, “Part of me thinks I should call the
newspapers and say do you want the truth of the story, or is that
not exciting enough?”
It is best not to watch the news or read the papers. Shield
yourself and your children from the media. Resist the
temptation to peek. At most, have a discreet friend or family
member clip stories and file them away so when this is all over,
you can look back if you still want to. Reporters can be like
buzzing mosquitoes. Erect a strong screen to keep your loved
ones inside and the media outside.
Occasionally, someone in the media will do an in-depth
investigation. An independent investigator blew the whistle
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on the Houston Crime Lab in a series of television reports. In
England, investigative reporter John Batt won a journalism
award for his four-year in-depth investigation into injustices
suffered by three women wrongly convicted of killing their
babies. Eventually, those convictions were overturned and
prosecution “experts” including Sir Roy Meadow were
discredited. 48 Hours Mystery and similar programs sometimes
cover individual cases sympathetically, but rarely if ever address
systemic problems.
You may be contacted by a TV newsmagazine. Consult
your attorney if you’re interested. Consider whether you
want your children to someday see a newsmagazine program,
featuring you. You have no control over what reporters say or
how they interpret, edit or spin what you say, so be wary.
You may be lucky and some big news event will steal the
headlines during your trial. You may be very lucky and the
media will look beyond the superficial and take your side.
Don’t count on it.
Conscripting the Media
A few parents whose babies have collapsed at a sitter’s
actively seek media attention. One father immediately started a
foundation named after his daughter to educate people about the
dangers of shaking children. He sought to turn his daughter’s
name into a rallying cry against baby shaking and lobbied
legislators door to door for a law named after her. He advertised
that he planned to get a tattoo of the baby’s face on his arm
and post billboards and bus station ads with her face and the
message, “Don’t shake your baby.”
Parents have had T-shirts printed for all their supporters with
the baby’s face and “No excuse for child abuse.” Others have
paid to erect huge billboards with their baby’s photo. All this,
of course, assumes without critical analysis the truth of Shaken
Baby Syndrome theory and the guilt of the person accused.
Media generally take the “side” of the child, casting him/her
as an innocent victim and you as an inhuman monster.
Criminal Justice in the United States
T
here’s nothing new or unusual about innocent people
being wrongly accused, convicted, imprisoned, and
executed by kings, governments and vengeful individuals.
According to Biblical law, “One witness is not enough to
convict a man accused of any crime or offense he may have
committed. A matter must be established on the testimony
of two or three witnesses.” (Deut. 19:15) If a witness
was accused of deceit, judges had to conduct a thorough
investigation. If the witness proved false, “then do to
him as he intended to do to his brother.” No witnesses,
no conviction. Guilty persons would answer to God, who
alone knew the secret thoughts and deeds of every man.
Human government, according to the Bible, is responsible
for minimizing (not eliminating) crime and evil. Governments
have authority to punish individuals known to have disregarded
laws and threatened the peace or security of others.
Criminal justice differs from civil justice in that the
government brings charges to punish actions that are deemed
dangerous or harmful to society as a whole. Prosecutors
are government employees. The baby’s parents, if you’re a
babysitter, may not be consulted before charges are filed. The
prosecutor will ask the family to terminate all contact with you
and will make every effort to convince them that you killed their
baby. A grieving mother makes a powerful witness, especially
if she can bring the jury to tears. In the few cases when parents
believed the babysitter’s story and did not help the prosecutor,
charges were either not filed or were dropped.
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How Laws Originate
Most criminal laws are enacted by state legislatures. With
the exception of Louisiana, state laws are based on the common
law inherited from England. To convict, two things must be
proved: a guilty act and a guilty mind. In general, to prove
murder, the prosecution must establish beyond a reasonable
doubt that the defendant (1) purposely or knowingly (2) caused
a death (3) of a human being.
Because of the difficulty in proving a criminal state of mind
in alleged child homicides, “felony murder” and “homicide by
child abuse” laws have been enacted to ease the prosecutor’s
burden. Prosecutors need only prove that a homicide occurred
during an episode of child abuse, regardless of state of mind.
Branches of the Justice System
The criminal justice system consists of three main parts:
1. Law enforcement (police)
2. Adjudication (courts)
3. Corrections (jails, prisons, probation and parole)
This section deals primarily with adjudication.
Methods of Trying Cases
There have been various types of trials in history:
1. Trial by combat. In the Middle Ages, the accused or a
designee could fight the accuser or a designee. It was
believed that God would intervene to ensure that the
innocent party prevailed. This practice was abolished by
England in the area of criminal justice in 1583, but dueling
continued to be used to resolve civil cases or matters of
honor until it was outlawed in the 1800s. Today, the winner
of a duel would be charged with murder.
2. Trial by ordeal. It was not always possible to meet the
Biblical requirement of two eyewitnesses or a voluntary
confession, so trials by ordeal arose. It was believed that
God would miraculously heal the wounds of an innocent
party within three days. One trial by ordeal for suspected
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witches involved tying the suspect’s arms and legs and
throwing her into deep water. If she floated, she was guilty.
If she sank (drowned), she was innocent. Trial by ordeal
was outlawed in about 1220 and replaced with trial by jury.
3. Vigilante “justice.” In lawless areas like the old West,
citizen committees dealt out swift punishment to those they
considered to be offenders. Lynch mobs are an example.
4. Trial by judge. When a judge or judges try cases, the system
is “inquisitorial.” Judges decide matters of fact as well as
matters of law in such systems. The movie Red Corner
gives a good picture of China’s inquisitorial system. Islamic
law (sharia) utilizes an inquisitorial system.
5. Trial by jury. When juries try cases, the system is
“adversarial.” Attorneys serve as advocates for the parties
involved. Judges referee. The attorneys control the flow
of information and bring objections on the basis of law.
Judges determine what is admissible, ensure that attorneys
follow legal rules, and decide matters of law. The jury hears
evidence and decides matters of fact, rendering a verdict of
guilt or innocence. Juries are a check and balance on the
unfettered power and potential corruption of government.
Models for Administering Justice
There are two basic models for administering justice: the
crime control model and the due process model. They are based
on different fundamental value systems.
Under the crime control model, repression of crime is the
most important function of the justice system. Civil order is
strongly emphasized and considered essential to a functional
society. People with this orientation believe the rights of
victims trump the rights of defendants, and want police to be
unhindered by technicalities in their quest to solve crimes. A
general trust in police prevails, as well as a presumption of guilt
for people accused. Under this model, it is considered more
acceptable to convict an innocent person than to acquit a guilty
one. Nearly all police have a crime control orientation.
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Under the due process model, the highest priority of
the criminal justice system is to safeguard the rights of the
accused. Under due process, a person is presumed innocent
until proven guilty. The government itself, under this model, is
subject to the rule of law, and must use legal methods to gather
evidence. Police power is restricted by law. Individuals cannot
be convicted on facts alone, but only on facts attained through
legal means. Under this model, it is more acceptable to acquit
a guilty person than to convict an innocent one. Many police
detest the due process model because it ties their hands and can
greatly increase the difficulty of solving crimes.
Generally speaking, the crime control model reflects
conservative values while the due process model reflects liberal
values. For the past several decades, a crime control orientation
has prevailed in the United States.
Due process and the presumption of innocence are basic
principles of American justice, enshrined in the Constitution and
Bill of Rights. The Fifth Amendment ensures that no person can
“be deprived of life, liberty, or property, without due process of
law.” This dates from the English Magna Carta in 1215, which
subjected government to the rule of law in order to guarantee
individual rights and limit the power of authorities.
Under due process:
1. Laws must be administered fairly (equal rights under law).
2. Persons accused must be informed of the charges against
them in a fair and open hearing.
3. The entity making the accusation (the government in a
criminal case) does not judge the case. A jury of one’s peers
serves as a check against abuse of government power. Juries
hold prosecutors and police accountable.
4. Criminal laws must be clearly worded.
Family and juvenile courts were instituted in part to reduce
some of the odious due process requirements for the noble
cause of protecting children. Evidence that would not be
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admissible in a criminal court, such as hearsay, is allowed in
family court. The standard of proof is lower—“preponderance
of evidence” (51%) rather than “beyond a reasonable doubt.”
Cross-examination is limited. The right of the accused to face
his accuser is bypassed. Family courts exist to “do something”
about the perceived problem of widespread child abuse.
Throughout history, America’s emphasis has shifted back
and forth from a crime control orientation to a due process
orientation. Balance would be ideal. America’s decadeslong tilt toward crime control has resulted in funding for
prosecutorial agencies that vastly outstrips funding for public
defenders. In California, only $60.90 goes to public defenders
for every $100 prosecutors receive.
The adversarial system is, to borrow from Winston
Churchill’s observations on democracy, the worst system for
determining truth, except for all the others. Its focus can subtly
shift from finding truth to winning at any cost.
Presumption of Innocence
Under due process, accused persons are presumed innocent.
This means:
1. With respect to whether a crime was committed and whether
the accused was the person who committed the crime, the
prosecution has the entire burden of proof.
2. With respect to the critical facts of the case, the defendant
does not have any burden of proof whatsoever. The
defendant is not required to testify, call witnesses, or present
evidence. The decision not to testify or present evidence
cannot be used against her.
3. The jury or judge is not to draw any inferences against the
defendant from the fact that she has been charged with a
crime and is in court. They must decide the case solely on
evidence presented during the trial.
In shaken baby cases, the real question may not be who
killed the baby but whether the baby was killed at all! He may
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have died of natural, perhaps unknown, causes. SBS cases
are so emotional, and the tragedy of an innocent baby’s death
so heartbreaking, that prosecutors can capitalize on juror’s
sympathy for a suffering child and family to effectively shift
the burden of proof to the accused. The very definition of
Shaken Baby Syndrome as a constellation of injuries (subdural
hematoma, retinal hemorrhage, cerebral edema) in the absence
of a credible history shifts the burden to the defendant. If she
cannot provide a history acceptable to her accusers, she has no
choice but to somehow prove the expert theory wrong. Few
young parents or babysitters have the means to do that!
Unfortunately, the modern practice of using courts to
eliminate social ills runs strongly counter to the presumption of
innocence. “The paradigm we’ve lived with now for 40 years,”
said Peter Neufeld of the Innocence Project, “is one based on
the presumption of guilt.”
DNA Exonerations
Although people have been wrongly accused and convicted
throughout history, little proof existed of systemic miscarriages
of justice prior to the DNA exonerations, which began in 1989.
Since then, some 250 people have been proved beyond doubt
to be innocent of the crime for which they were convicted.
Seventeen of those served time on death row. To this day, some
states prohibit post-conviction DNA testing, citing the public’s
interest in judicial finality (thus valuing finality above the right
of an innocent person to be cleared of wrongdoing). Perhaps in
an effort to conceal governmental misconduct, shoddy forensics,
unrevealed exculpatory evidence, perjured testimony, etc., some
states have made it difficult or impossible for inmates to obtain
DNA evidence to be retested. Facing the threat of being proved
wrong, some prosecutors have actually destroyed evidence that
could have proved innocence.
I well remember the shock I felt when I first saw a television
program featuring men who had been exonerated by DNA. I
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knew that countless guilty people escaped punishment, but I
previously had no idea that completely innocent people could be
convicted and sent to prison. How could that be?
The main reasons for wrongful convictions are mistaken
eyewitness testimony, shoddy forensics, false confessions,
government misconduct, informants or snitches who deliver
perjured testimony in exchange for a benefit, and poor defense
representation. Only 10% of criminal cases, primarily rape,
involve DNA evidence. In shaken baby cases, there are
seldom eyewitnesses. Snitches are rarely used. But shoddy
forensics, false confessions, government misconduct, and poor
defense representation can easily result in convictions based on
circumstantial evidence alone. Unfortunately, few efforts have
been made to mitigate systemic flaws that are known to lead to
wrongful convictions.
To their credit, prosecutors in some jurisdictions, including
St. Paul, Minnesota, have initiated post-conviction DNA testing
in cases where such evidence, had it been available prior to trial,
might have led to dropped charges or acquittals.
Dallas County District Attorney Craig Watkins, elected in
2006 and committed to “doing the right thing” has pioneered
new ground by giving the Innocence Project of Texas access to
all prosecution evidence and files. He established a “Conviction
Integrity Unit” which has exonerated 19 people to date. Said
one person of Dallas’ previous district attorneys, “Once they
decided you were guilty, they played fast and loose with the
rules.” A reality TV program, Dallas DNA, premiered on the
Investigation Discovery Channel on April 28, 2009.
I have personally been amazed to see the extent of public
apathy in the face of so many wrongful convictions. Officials
whose actions led to travesties of justice display a lackadaisical
attitude and offer only lame excuses. No one has the job of
figuring out what went wrong or working to correct systemic
errors or minimize future mistakes. The criminal justice system
has exempted itself from self-examination, and since not many
“good” citizens have been accused, tried, or imprisoned for
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crimes they didn’t commit, a myth survives that miscarriages of
justice “don’t concern me.”
Although the National Commission on the Future of DNA
Evidence wrote, “The strong presumption that verdicts are
correct has been weakened,” the general public seems unaware
of that fact. Jurors continue to convict solely on the basis of
“expert opinion” and unproven theories. They are called upon
to make godlike decisions in the absence of godlike skills.
Think what happens in most lines of professional work when
a major failure occurs. To begin with, we rarely investigate
our failures. Not in medicine, not in teaching, not in the legal
profession, not in the financial world, not in virtually any other
kind of work where the mistakes do not turn up on cable news.
A single type of error can affect thousands, but because it
usually touches only one person at a time, we tend not to search
as hard for explanations. —Dr. Atul Gawande in
The Checklist Manifesto
Bureaucrats and Bureaucracies:
The Legal Process
Pre-Arrest
1. Diagnosis. As soon as doctors suspect possible abuse
(a report of an “unresponsive child” is enough to trigger
suspicion), CPS and police are called in to investigate.
Medical tests should be conducted to rule out known
alternative causes before a firm diagnosis is reached, but
that step is frequently neglected.
2. Police interviews. Detectives attempt to conduct initial
interviews as soon as possible. (Note: They need not
issue Miranda warnings prior to an arrest. You must assert
your rights.) Police, taking their cue from doctors, assume
guilt. Doctors, they think, would not make such serious
allegations were they not true.
3. Scene inspection.
4. CPS may intervene and remove the baby and/or his
siblings from the home “as a precaution.”
5. Autopsy. If the child dies, an autopsy will be conducted.
6. Prosecutor assigned. The District Attorney’s office will
be contacted and a prosecutor assigned to the case.
7. Charges are written, specifying the time, date and place a
criminal act allegedly took place, the alleged involvement
of the accused, and details of the crime itself. The crime
charged may be a misdemeanor (punishable by less than a
year’s incarceration) or a felony (punishable by more than
a year in a prison or penitentiary). Homicide is a felony.
8. Indictment or Information. A grand jury (typically 23
jurors) or a judge reviews the case to see if enough
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evidence exists to proceed to trial. The grand jury votes
to return an “indictment” or the prosecutor files an
“information.” Generally, grand juries need not reach
unanimous consent whereas petit juries (trial juries) must.
9. Arrest Warrant. A judge or magistrate issues an arrest
warrant.
10. Arrest. Police will fingerprint, photograph, check criminal
background, etc. Although an arrest can be made (say,
late at night) without a warrant, a suspect can be held for
only a short time in that situation.
Pre-Trial
1. Arraignment. At court, the charge is read to the defendant
and the penalties are explained. She is advised of her
Constitutional right to trial by jury and to counsel. If
the defendant is deemed to be indigent (poor), a public
defender will be appointed. A date is set for a preliminary
hearing. Bail may be set and bail conditions specified.
The purpose of bail is to ensure that the defendant returns
to court for all future proceedings. Bail may range from a
few thousand to millions of dollars.
2. Preliminary hearing. The State must demonstrate that
there is probable cause to believe the suspect committed
a crime. Depending on state rules, defendants may be
allowed to attend a preliminary hearing but not offer
evidence. Like the grand jury, this is a safeguard against
unfettered government action. Charges are dismissed
unless there is probable cause. If probable cause is shown,
the defendant is bound over for trial.
3. Initial court appearance. The defendant pleads guilty, not
guilty or nolo contendere (no contest).
4. Plea bargaining. Generally at this point, a plea bargain
is offered. Approximately 90-95% of criminal cases end
with a plea bargain, in which the defendant pleads guilty
to a lesser charge, some charges are dropped, or a shorter
sentence is negotiated.
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5. Waiting, waiting, waiting. The Constitution guarantees
the right to a speedy and public trial, but the system’s
definition of “speedy” may not match yours. The speedy
trial clock begins ticking upon arrest. In general, delays of
more than a year trigger judicial concern, especially if the
defendant is incarcerated. Because shaken baby cases are
complicated and many expert witnesses may be involved,
attorneys on both sides request extension after extension
after extension as the case grinds through the system. Few
cases go to trial within a year. Two to three-year waits are
common. Rarely, four or more years pass before a trial
begins. Margie waited three years and two months. Trial
date after expected trial date was canceled, sometimes at
the last minute. There were several court hearings while
we waited. Fortunately, she was out on bail, not in jail.
For SBS trials, medical experts from all over the country
may need to fly in to testify. Coordinating the schedules
of so many busy professionals can be difficult.
6. Discovery. Attorneys spend the l-o-n-g waiting period
preparing for trial. Occasionally, information comes to
light that results in charges being dropped. In a few cases,
for example, opinions offered by defense medical experts
have convinced prosecutors to drop charges.
7. Motions on Admissibility. Crucial admissibility issues are
ruled on by the judge prior to trial. Jurors will decide the
facts, but they can only decide based on evidence admitted
by the judge. One judge strongly recommended that
attorneys resolve as much as possible prior to trial so trials
proceed smoothly and jurors do not have to wait while
incomprehensible legal arguments take place between
lawyers and the judge during the trial.
8. Daubert or Frye hearing.
9. Pre-trial hearing. The judge determines whether both
sides are ready for trial, determines how much time will
be necessary, and sets a date on the docket.
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The Trial (at long last)
1. Jury Selection. If the case goes to trial, a jury of 12 plus
one or two alternates is selected in a process known as
voir dire (literally “speak truth”). Attorneys on both sides
ask questions to ascertain whether a person is prejudiced,
knows any witnesses, or is otherwise unqualified. An
unlimited number of potential jurors may be dismissed
for cause. A limited number of peremptory challenges are
allowed for each side, permitting jurors to be dismissed
for any unstated reason whatever.
2. Swearing of the jury. The court clerk swears in the
jury. Jurors are instructed to listen to all evidence
carefully and not to draw premature conclusions. They
are prohibited from reading about the case or watching
TV coverage. They are told not to discuss the case with
anyone, including other jury members, until deliberations
begin. Some judges permit jurors to take notes or to
submit questions that the judge, after consulting with both
attorneys, can put to witnesses.
3. Opening Statements. The party with the burden of proof
(prosecution) presents a summary of what he or she
intends to prove by evidence during the trial, so jurors
have an overview of what will be covered. The defense
follows with its opening statement.
4. Prosecutor’s Evidence. The prosecutor is first to present
evidence. Evidence may be direct or circumstantial.
Direct evidence proves the main facts of a case
(confessions, testimony by eyewitnesses to the crime).
Circumstantial evidence proves facts that support a main
fact (eyewitness testimony that the accused was seen
leaving the scene, medical test results). Exhibits are
entered into evidence. Witnesses are questioned first by
the party that called them (direct examination), then by
the opposing party (cross-examination). Sometimes a few
questions arise or remain that can be asked in re-direct and
re‑cross.
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5. Motion for Dismissal. At the conclusion of the
prosecution’s case, defense attorneys typically request that
the judge find the prosecution has failed to prove its case
beyond a reasonable doubt and either dismiss the charges
or direct the jury to return a verdict of not guilty. This is
called a directed verdict. A defense motion to dismiss is
customary and rarely successful, but has succeeded in a
disproportionate number of Shaken Baby Syndrome cases.
6. Defense Evidence. The defense may bring evidence to
cast doubt on the prosecution’s argument. The defendant
herself may testify but there is no requirement to do
so. Medical experts may be called as well as character
witnesses. Each witness is subject to direct, cross,
re‑direct and re-cross examination.
7. Rebuttal witnesses. The prosecution may call a rebuttal
witness to refute evidence presented by the defense.
8. Final motions. Either side may move for a directed
verdict (judge directs the jury which verdict to return).
9. Closing arguments. First the prosecution, then the
defense, sums up what the facts proved or did not
prove. The defense lawyer points out weaknesses in the
prosecution’s case. In a rebuttal, the prosecution has the
last word to the jury.
10. Instructions to the Jury. The judge carefully directs the
jury on what they are to do during deliberations. He
discusses the standards of proof that apply, reads the
applicable law and defines words so there will be no
confusion. The jury is advised that it alone is responsible
to determine the facts of the case—who is credible and
what is true. Jurors are reminded to base their conclusions
solely on the evidence presented at trial. Improper jury
instructions are often the basis for appeal, so judges are
very careful in giving these instructions. Jurors may be
given the option to convict of “lesser included offenses”
(such as manslaughter if the charge is murder). The
final jury members are selected and alternate jurors are
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dismissed. In some cases, alternates have agreed to
speak with defense attorneys about their thoughts and
impressions based on what was presented at trial—about
whether they’re leaning toward a guilty or not guilty
verdict, the perceived credibility of witnesses, and the
persuasiveness of evidence and opinions proffered.
11. Deliberations. Jurors retire to a jury room to choose a
foreperson and then discuss the evidence in an attempt
to reach consensus on a verdict. The jury is allowed as
much time as necessary to evaluate the evidence presented
and determine whether the prosecutor has met her burden
of proof. A bailiff takes care of the jury’s needs and can
relay notes to the judge.
12. Verdict. All jurors must agree on a verdict of guilty or not
guilty. If they cannot agree, there is a hung jury. After
the verdict, either attorney can poll the jury to ask each
individual whether they personally agree with the verdict.
13. Mistrial. If a trial is not successfully completed, it is
declared a mistrial. A hung jury will result in a mistrial,
as can juror misconduct, a death, or an error that cannot
be cured. After a mistrial, charges may be dropped or the
case can be tried again before a different jury.
14. Judgment. The jury’s decision takes effect when the judge
enters a judgment certifying the verdict. In very rare
cases, judges who have strongly disagreed with a verdict
have refused to make it official.
Post-Trial
1. Pre-sentence investigation assists the judge in determining
what sentence, within the range allowed, he will impose.
2. Sentencing hearing. The baby’s family members are
allowed to speak. The defendant may be allowed to
speak. The judge specifies aggravating and mitigating
factors and announces the sentence.
3. Appeal. Generally, there is a limited time within which to
file an appeal. Appeals can only contest the fairness of a
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trial and matters of law. Appeals judges will not review
the correctness of a jury’s verdict, just whether the trial
was fair. Few appeals succeed, even for people who are
innocent. Most errors are ruled “harmless.” If an appeal
succeeds, a new trial may be granted, a plea bargain may
be reached, or charges may be dropped (rarely).
4. Habeas corpus. After appeals are exhausted, a prisoner
may petition for a writ of habeas corpus, which is a
summons by a higher court demanding that a prisoner be
brought before the court so a determination can be made
as to whether she is being lawfully detained.
How Might This Finally End?
1. The prosecutor might not press charges
2. The grand jury might decline to press charges
3. The judge at a preliminary hearing might dismiss the
charges
4. Plea bargain
5. Alford plea
6. Charges dropped (sometimes after a second doctor gives
an opinion)
7. After the prosecution presents its case at trial, judge drops
the charges
8. Directed verdict
9. Mistrial with dropped charges
10. Mistrial with retrial
11. Acquittal
12. Conviction
13. Judge refuses to make a verdict official
14. Appeal succeeds and charges are dropped
15. Appeal succeeds and a new trial is granted
You cannot know what will happen until it happens. Try to
become as comfortable as possible with uncertainty. Resist
wide swings between hope and despair. This will end someday,
but you can’t know in advance exactly how it will end.
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The Long Wait: Life in Limbo
An aggressive approach to making discovery demands sends a
message that your case is not business as usual.
—Dean Tong, Elusive Innocence
D
uring the long wait between an accusation and a trial,
work must be done to discover witnesses, facts and
documents relevant to the case. The admissibility of the
prosecution’s evidence will likely need to be challenged.
Defense attorneys frequently file a Motion to Preserve
Records and Documents. Documents can be lost, misfiled, and
even altered. Months and months can elapse before something
as simple as a copy of the child’s hospital chart is turned over
to the defense, let alone original slides, X-rays or CT scans.
One defense attorney said, “We literally had to move heaven
and earth to get them.” Missing medical evidence can mean a
life sentence for an innocent person. A protracted fight may be
necessary to get everything, but it is worthwhile. Injustice is
probable when the defense lacks crucial, relevant information.
When records finally arrive, they’re often incomplete and
unreadable, written in a “doctor’s scrawl” so light it can’t be
deciphered. A great deal of expensive attorney and medical
expert time can be consumed attempting to figure out what the
documents actually reveal, if anything. Said one observer, “The
motive seems to be to say as little as possible as unintelligibly
as possible with what passes for scientific jargon and process.”
Doctors who anticipate litigation may intentionally fail to
record observations. In one case, no one was ever clear about
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how many ribs were supposedly fractured because there were
conflicting reports from different technicians. One report said
retinal hemorrhages were found in the baby’s right eye and
another report said the left eye.
The defense medical expert should look at the same,
identical scans, slides and tests as the prosecution expert,
not copies, which may vary in quality. Sometimes important
evidence can be very subtle and easy to miss.
Appeals courts have sanctioned the burying of evidence
valuable to the defense inside tens of thousands of pages
of useless material. CPS is exempt from the Freedom of
Information and Public Records Acts. Those who work for the
government are exempt from personal responsibility for their
actions and are immune from lawsuits.
Discovery in criminal proceedings may be limited compared
to what is allowed in civil cases. If you are facing both a
criminal and a civil lawsuit, that can be an advantage. It may
make it easier to get depositions that can be used in both courts.
In one case, a trial proceeded without a key pathology
report. It was referred to at trial but never entered into evidence.
In the wake of the conviction, attorneys in the civil lawsuit
finally convinced a lowly clerk to produce it. “It was a bomb,”
said one of the attorneys. “It was remarkable because it showed
old blood from a previous brain injury. The whole premise of
the prosecution’s case was that it had to be the sitter because it
happened that morning. The pathology report says that is not
true.” A subsequent appeal succeeded and the conviction was
overturned.
Brady v. Maryland
In 1963, the United States Supreme Court in Brady v.
Maryland ruled that suppression by the prosecution of evidence
favorable to an accused violates due process where the evidence
is material either to guilt or to punishment, irrespective of
the motives of the prosecutor. Evidence that undermines
the credibility of a prosecution witness is subject to this law.
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The duty to disclose does not end when the trial is over but
extends to information gained afterward if it casts doubt on the
correctness of the conviction.
Investigators have a great deal of power in any criminal
case. During the course of an investigation, they may uncover
evidence that undermines their theory of the crime. Prior to
Brady, they could legally ignore and suppress such evidence.
Since 1963, defense attorneys have routinely filed “Brady
requests” to ensure that ALL evidence prosecutors collect is
turned over to them.
In shaken baby cases, attorneys have sometimes moved to
preserve the child’s entire body until after a defense autopsy
or until appeals are exhausted. Some attorneys have moved to
prevent the baby’s organs from being harvested because there is
a chance they might supply clues to the truth.
If your case is like many, there will be delay after delay after
delay, for years, before a trial is held. During the long wait, if
you are out on bail, you may be able to live a relatively normal
life, depending on bail conditions. As difficult as it is to wait,
wait. Be patient. Try not to complain. Something may be
discovered during the long wait that will result in charges being
dropped or in a stronger defense position at trial. Your chances
of eventual freedom may increase with time.
This is where you’ll need “serenity to accept the things you
cannot change.” You cannot change the system upon which
your freedom depends.
Some people have an ability to live life in limbo,
maintaining balance despite uncertainty. They focus on each
moment and each day as it comes. You can foster that ability,
enjoy and appreciate the blessings of each day, and preserve
your sanity. As much as you long to have contingency plans in
place to ensure security no matter what, that really isn’t possible
when you have been wrongly accused. You have no choice but
to wait for as long as it takes. Meanwhile, learn all you can.
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Diagnosis Murder
early everyone has benefited personally from the
tremendous advances in medical technology. Doctors
have make it possible for us to live longer and healthier
lives. We rightly appreciate and honor them!
Generally when we go to a doctor, we do not know
what is wrong. We expect the doctor to figure it out and tell
us! The exact process used to arrive at a diagnosis may be
incomprehensible to the patient.
A diagnosis is a “working hypothesis.” Doctors diagnose
what seems most probable, treat for that, and see if it helps.
If initial treatment is unsuccessful, they consider alternate
diagnoses, generally in order of probability. They do not
evaluate for all possible diagnoses at the outset. To do so would
be expensive, invasive and generally unnecessary.
In Margie’s case, the emergency room doctor was asked at
trial if she tested for GA1 before making a diagnosis of Shaken
Baby Syndrome. “No,” she said. “It was unnecessary. It was
clear the child was going to die. I could not save him.”
Clinicians diagnose for the purpose of treatment. While it
may normally be acceptable to misdiagnose a cause of death,
that is not the case if the diagnosis is murder! Every known
alternative should be considered, with the thought in mind that
there may be unknown natural causes! Even if 95% of children
with the symptoms attributed to Shaken Baby Syndrome really
were abused, how can a doctor know, beyond a reasonable
doubt, that a particular child isn’t one of the 5% who weren’t?
Statistics, used frequently in trials, are irrelevant when applied
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to any specific case. Rare does not mean nonexistent. When
doctors help send people to prison, a misdiagnosis is not buried
with the child. It lives on and on, wreaking damage for years
or decades, depriving living children of security and support.
Doctors and investigators must get this right! Children are
harmed if returned to abusive parents. They are harmed
if deprived of non-abusive parents. When there is doubt,
caretakers should receive the benefit of the doubt.
In most cases, misdiagnoses have been discovered only
when children survived and additional tests were done. Had
those babies not survived, an entirely innocent parent or sitter
would likely have been convicted. Babies may die because a
premature diagnosis of abuse blinds doctors to the true cause of
their condition and prevents timely treatment.
A federal report showed that routine autopsies overturned
the official cause of death in U.S. hospitals in 23% of cases in
the year 2000. Unfortunately, autopsies in alleged SBS cases
begin with the “knowledge” that the cause of death is abuse, an
assumption that is almost never questioned once made.
In 1999, a report was issued by the Institute of Medicine
Committee on the Quality of Health Care in America entitled
To Err is Human. It reported that between 44,000 and 98,000
Americans die in hospitals each year as a result of preventable
medical errors. Even the lowest estimate makes medical error
the 8th leading cause of death! 17% of known errors were
attributed to a delayed or incorrect diagnosis.
The report made strong recommendations for change.
Unfortunately, according to a review done 10 years later, very
little changed. Reporters concluded doctors do not want to face
the issue of error! They don’t want to know they have made
mistakes and they for sure don’t want anyone else to know.
Malpractice lawsuits ruin careers!
Doctors are human. Humans are imperfect. Even with
the best of intentions, they err. Doctors like to help people.
They want to know what ails their patients and can believe
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they “know” even when they don’t. If a condition “looks like”
something they’ve seen before, especially recently, they will
naturally suspect the same cause.
Notice the confidence of one child abuse doctor at trial:
“The nature of the baby’s injury is such that she would have
had immediate, profound neurological symptoms. … She would
not have appeared awake, alert, and normal after the injury. …
There are no natural medical causes for these types of bleeding.
Resuscitation efforts by rescue personnel could not have caused
the injuries. … This baby was the victim of an assaultive head
injury and the assailant was the last adult with her immediately
before the onset of her symptoms.” Clear. Simple. Convincing.
And very possibly wrong.
Alternate Diagnoses
One doctor, a researcher, wrote that GA1 is a “relatively
common cause of acute metabolic brain damage in infants.”
Common? Why, then, is there such intractable resistance to
testing for it prior to accusing caretakers of murder? Wrote a
doctor in Pediatrics: “Many conditions mimic non-accidental
injury, and even well-described ones may be overlooked due to
their present rarity.” My point exactly.
One mother, who was suspected of shaking her son but
not immediately prosecuted, moved to another state and had
another baby who exhibited the same symptoms. Luckily
for her, the doctor she took this baby to see had recently
attended a symposium on Menke’s disease, which has the same
symptoms. He felt the baby’s wiry hair and ordered a test for
that rare congenital disorder. The test came back positive. As
a result, the bones of the deceased baby were tested. He, too,
had Menke’s disease. Had the mother been convicted and
imprisoned, she would not have borne the second baby. Had
she not happened upon a doctor with recent exposure to this rare
condition, the diagnose would have remained murder.
Although the first baby’s cause of death was changed from
“homicide” to “undetermined”, the first doctor said, “Just
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because the baby had Menke’s disease doesn’t prove you didn’t
shake him.” True, but the disease has the same symptoms as
SBS and is invariably fatal! Why does he remain determined to
blame the mother?
Said the prosecutor, “If there is a moral to this story, it’s that
even doctor’s opinions are fallible.”
Doctors, like police, may have a inflated sense of their
ability to discern truth. They may give a great deal of weight
to “gut feelings” and initial impressions. When they think they
“know” something, their egos become involved. Protests by
parents can enhance their confidence in their misdiagnosis and
be dismissed as denial and cover-up.
Weasel words like “consistent with” are common.
“Consistent with” does not mean “caused by.” But it’s close
and leaves an “out” if the doctor happens to be wrong. When a
weatherman says there’s a 95% chance of sunshine and it rains,
he’s still right. He said there was a 5% chance of rain!
Doctors, like police, and perhaps like all of us, welcome
simplistic answers when they are available. Doctors work in
stressful situations with competing priorities. They don’t want
to spend more time on a particular case than necessary. Abuse
is a readily available and convenient diagnosis that shifts the
burden of responsibility to someone else.
Shaken Baby Syndrome “is not tough to see,” said a doctor.
“It’s easy to make the diagnosis.” Yes. Too easy, perhaps. Said
one doctor, “I suspected Shaken Baby Syndrome the minute I
examined him. I could not think of another clinical situation
that would explain that trauma.” Does his inability to think
of other possibilities mean there are none? There are known
alternate causes and there may be unknown causes. Babies may
be dying because alternative diagnoses aren’t considered.
How Doctors Diagnose Child Abuse
In the old days, doctors diagnosed disease and injury, not
abuse. Even when they knew children were being abused, they
confined their practice to treating injuries. Child advocates fear
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abuse continues to be underdiagnosed, and bemoan the fact that
children with “flu-like symptoms” continue to be diagnosed
with flu when they may actually have been shaken. An
increasing number of doctors are concerned that the pendulum
has swung too far and child abuse is now overdiagnosed.
Doctors who question SBS dogma or suggest that a
particular case might not be abuse have been shouted down and
accused of enabling abuse or going over to the “dark side.”
It reminds me of what happened when I taught students
the use of the apostrophe. They became so excited about
apostrophes that they put them everywhere, especially before
every “s”! They overgeneralized. They did not discriminate.
They had to learn to discern when an apostrophe was
appropriate and when it was not.
Once a correlation was discovered between certain medical
symptoms and abuse, doctors, it seems, overgeneralized.
For decades, physicians have been urged to maintain a
high index of suspicion for abuse when children are injured or
unresponsive. They have been told to “think dirty”—to suspect
abuse anytime a discrepancy exists between the severity of the
injury and the history provided by the caretaker. An inadequate
history, doctors are told, is “diagnostic” of abuse.
In other words, you take your child to the doctor to find out
what’s wrong, but if you can’t tell her what’s wrong (or she
doesn’t believe you), you’re what’s wrong and police are called!
Investigation for “less likely” possibilities ceases!
In addition to inadequate history, doctors base the diagnosis
of Shaken Baby Syndrome on a “triad” of symptoms believed to
be unique to shaking. They acknowledge that these symptoms
can arise individually due to other causes, but think that
whenever the symptoms occur together, the child has been
shaken. Period.
The “triad” varies from source to source:
• Retinal hemorrhage (RH), subdural hemorrhage (SDH) and
long bone fractures.
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• Retinal hemorrhage (RH), subdural hemorrhage (SDH) and
no external signs of impact, such as bruises.
• Retinal hemorrhage (RH), subdural hemorrhage (SDH) and
cerebral edema (brain swelling). “When you see a swollen
brain, this is a diagnostic to Shaken Baby Syndrome.”
—Dr. Robert Deters at trial
• Retinal hemorrhage (RH), subdural hemorrhage (SDH) and
unresponsive.
• Retinal hemorrhage (RH), subdural hemorrhage (SDH) and
an inadequate or changing history.
Retinal hemorrhage is bleeding in the back of the eye.
Subdural hemorrhage is bleeding in a certain part of the
brain. Cerebral edema is swelling of the brain. Doctors have
diagnosed Shaken Baby Syndrome based on two or even just
one of these symptoms. Retinal hemorrhages do not kill.
Pressure on the brain from brain swelling or a large subdural
collection of blood is generally what causes death.
In 2005, three judges in London, England, reviewed 258
cases and concluded that the triad was valid, but should not
lead automatically to a conclusion of unlawful killing or injury.
Triad-based prosecutions continued in the wake of this ruling.
Retinal Hemorrhages (RH)
Retinal hemorrhages are extremely important to the
diagnosis of Shaken Baby Syndrome. For years they were
considered pathognomonic (unique to abuse). “Retinal
hemorrhages in children under three without external evidence
of head injury should be considered diagnostic of child abuse
until proven otherwise,” said the medical literature. One
accused mother wrote, “As soon as the ophthalmologist saw
retinal bleeding, my husband and I became confirmed abusers in
the eyes of the doctors.”
In 2008, the preeminent ophthalmologist in the field of
child abuse backed off a little. “Not all retinal hemorrhages
are the same,” said Dr. Alex Levin. “For many, many,
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many years, retinal hemorrhage was a generic term that we
used in our literature, in the media, in the courtroom, and
it’s just insufficient. It’s as insufficient as saying the word
‘fracture.’ There are many ways that we can describe retinal
hemorrhages in the eye which have great significance in
terms of understanding the specificity and etiology of the
hemorrhages. Other things cause retinal hemorrhage. That’s
critical! There are many, many, many other things that cause
retinal hemorrhage.”
The kind of retinal hemorrhages considered pathognomonic
of SBS morphed from any retinal hemorrhages, to flameshaped retinal hemorrhages, to “multi-layered diffuse retinal
hemorrhages.” Resuscitation has been known to cause retinal
hemorrhaging, but child advocates argue that such hemorrhages
are quite distinct from hemorrhages caused by abuse. People
remain in prison, however, because jurors were led to believe
that a single retinal hemorrhage proved a baby had been shaken.
A study published in 2007 reported that retinal bleeding
was found in 26% of newborns, most commonly in vaginal
deliveries. In 2005, Dr. Patrick Lantz, a critic of SBS theory,
began checking for them at every autopsy. He reported that
16% of 700 individuals had hemorrhages in the retina, including
people who died from aneurysms, falls, car wrecks, gunshot
wounds, meningitis, and even drug overdose.
Subdural Hemorrhage (SDH)
Subdural bleeding has generally been assumed to have a
traumatic cause, but is known to occur in people with certain
nontraumatic conditions, including congenital disorders. Not
all subdurals are the same. There are large, space-occupying
subdurals and thin film subdurals. The large ones can kill by
compressing the brain. The thin film subdurals do not kill but
may be accompanied by malignant brain swelling that does.
Can a chronic subdural rebleed? Child advocates say
absolutely not. There is, however, evidence that subdurals have
rebled after car accidents.
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Cerebral Edema
This is a deadly symptom. Malignant brain swelling is
much more common in babies than in adults, for reasons that
remain obscure. Once a baby’s brain begins to swell, it is very
difficult to stop. There is disagreement as to what triggers the
cascade, or whether there could be various causes. Much is not
yet known about baby brains and how they develop. It is known
that they are quite different from adult brains.
Diffuse Axonal Injury (DAI)
Axons are long threadlike parts of a nerve cell along which
impulses move from one brain cell to another (see illustration
p. 290). Diffuse injuries are spread widely through the brain,
whereas focal injuries are in a specific place. Impact injuries,
it is said, produce focal injuries while shaking produces diffuse
injuries. In Margie’s case, the forensic pathologist, whose
report indicated diffuse axonal injury, said “You don’t always
see them without special research techniques, which weren’t
needed in this case. The baby had edema, subdural hemorrhage
and retinal hemorrhage.” He acknowledged that he did not test
for diffuse axonal injury but simply inferred it because it is part
of the syndrome. There was “no need” to conduct tests for it.
Fractures
Skull fractures often accompany subdural hemorrhage and
retinal hemorrhage. Experts for the prosecution insist that short
fall cannot cause fractures, that they only occur when there is
massive force. Rib fractures are considered evidence that a
child was held tightly. Metaphyseal fractures, at the ends of
growing bones, have long been assumed to be signs of abuse.
Strangely, what doctors call fractures are not always
fractures. Imaging isn’t perfect, and images are read by people
who aren’t perfect. There have been cases where one doctor
has seen a fracture and another has not. In SBS cases, X-rays,
CTs, etc. should be examined by a defense medical expert, using
exactly the same images read by prosecution experts.
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History
The problem with depending heavily on history is that a
caretaker may not know of trauma, even abusive trauma, unless
she observed it. In such a case, the history she gives will be
incomplete through no fault of her own. When questioned
closely, she may search her mind for possible explanations,
not because she believes they caused the problem but because
she can’t think of what might have. The baby fell. He seemed
to be choking. Everything the caretaker says can be true and
complete, yet still not explain the symptoms.
“Unless these injuries are presented with a history of
an immediate, preceding, serious traumatic event, they are
only consistent with Shaken Baby Syndrome,” said a typical
doctor at trial. The following statements appear in the medical
literature:
• We’re mostly looking at whether the history is consistent
with the clinical and diagnostic signs.
• The two most important corroborative facts in the diagnosis
of abuse are the presence of multiple injuries and an
inadequate explanation for the injuries.
• Discrepancy between the systemic and ocular injury and the
caregiver’s history remains the best indicator of child abuse.
• A history of minor trauma in a small baby with significantly
altered consciousness should trigger an immediate alarm, as
should a history of unwitnessed trauma.
• When clinical findings are few, the diagnosis of abuse may
rest upon discrepancies between the history given and the
injury incurred.
No External Signs of Trauma
What initially puzzled Dr. Caffey was subdural hemorrhage
and long bone fractures, both presumably of traumatic origin,
occurring together in the absence of external evidence of
trauma. With accidents, doctors observe external injuries!
Again and again in the literature, doctors note that the
absence of external evidence of trauma is a “striking” feature
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of Shaken Baby Syndrome. What a coincidence! In my mind,
that raises doubt as to whether all of these children were fatally
abused by reportedly loving caretakers.
“External injuries are very, very uncommon,” said Amy
Wicks of the National Center on Shaken Baby Syndrome. “The
lack of any external signs of injury is often key to the diagnosis
of Shaken Baby Syndrome,” says a training manual. One doctor
testified that the absence of external injuries made him more
confident about his diagnosis of murder.
The Second Child
If two babies die under the care of the same person,
suspicion for child abuse is extremely high. Said one police
trainer: “You only get one. They had two. One SIDS death
per family. After that you start looking for homicide.” The
famous “Meadow’s Law” comes into play. Sir Roy Meadows
testified in several trials that “One child death is a tragedy, two
are suspicious, three means homicide unless proven otherwise.”
The possibility of genetic or environmental factors, possibly as
yet unknown, seems not to merit consideration!
A diagnosis of SIDS means the doctors don’t really know
why the baby died; he just died. Some child advocates surmise
that most SIDS deaths are actually homicides, perhaps due to
suffocation.
People hate uncertainty and want to know, even if what
they “know” is untrue. A diagnosis of murder is better than no
diagnosis. Parents want answers. They demand that the doctor
tell them why their precious baby died. “I don’t know” is not an
acceptable answer, even if it is a true answer.
Retinal and subdural hemorrhages provide an easy way to
“know.” It is easier to believe that someone killed the baby than
that something unknown and mysterious happened. Doubts and
uncertainty make people crazy.
When a second child in a family dies, both deaths may be
reviewed. First babies have been exhumed for another autopsy
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after a second child dies, with the cause of death of the first
child being changed to abuse.
In cases where it’s not clear, shouldn’t the default diagnosis
be “undetermined”—“I don’t know”—rather than murder?
Groupthink
A detective, complimenting local physicians for their
cooperation in diagnosing abuse, said, “A lot of doctors, you
know, they’ll kind of dance around the subject, and it’s kind of,
‘Doc, tell me what happened here!’ These guys will tell you.
They’re all child advocates, as well.”
The same detective suggested nurturing ongoing
relationships with doctors and the forensic pathologist, so all
parties could work smoothly together to convict parents and
babysitters.
In other words, get everyone on the same “team” to ensure
that no individual dares question a diagnosis of murder.
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Are You Responsible?
Accidents happen. Parents and caretakers routinely do things that
cause no harm under normal circumstances, but that can, under certain
circumstances, lead to a baby’s injury or even death. Although they are
innocent of child abuse and certainly didn’t shake a baby in anger, when
the harsh finger of accusation points toward them, they panic and “color”
the truth (lie). Afterwards, they see no choice but to buttress the original
lie. The slope becomes slippery and they slide into a trap.
For example, babies love to play “airplane.” An adult holds them
overhead and zooms them through the sky, even tosses them up slightly
and catches them so they experience the pleasant feeling of zero gravity.
Although this may panic protective parents, under normal circumstances
nobody gets hurt. But what if the baby were to unexpectedly slip out of
the adult’s hands and plummet to the floor, hitting his head?
On one end of a spectrum are people who truly abuse children,
intentionally and with malice. Other people hurt children in a fit of
temper or frustration, perhaps not realizing their own strength. They
immediately regret what they did. Still others are reckless. They take
risks that normally do not cause harm but sometimes can. Negligence
is another level down. Forgetting to fasten a baby gate at the top of a
staircase can very occasionally result in a baby falling down stairs and
being seriously harmed or killed.
On the other end of the spectrum are people who are 100% innocent
and had nothing whatsoever to do with the baby’s injuries. Not only are
they innocent of any intent to harm, but of any action that caused harm.
If, in your heart of hearts, you know you are responsible for a
child’s injuries, even if it was an accident, tell your attorney the truth,
the whole truth, and nothing but the truth! Be completely honest with
your attorney! His job is to defend you to the best of his ability even if
you are 100% guilty of intentional premeditated murder.
For the sake of the people who are 100% innocent, please hold
tightly to truth, whatever it is. I beg you: Do not lie or violate your
conscience. You have to live with yourself, forever. Repent, ask
forgiveness, and have your attorney negotiate a plea bargain. You might
be surprised at the mercy of the court and the understanding of others if
you are honest and remorseful. Truth will set your conscience free.
Some attorneys and medical experts risk a great deal to try to end
false SBS accusations. Even if you are only slightly responsible for a
child’s injuries, your lie will reflect badly on anyone who tried to help
you, tarnishing their reputation and perhaps convincing them that it’s not
really worth the sacrifice. You owe it to them to be truthful.
Police Investigation: Why Suspect Me?
If we ever get a physician who shakes his child to death, we’ll
never be able to convict them because they’ll know the right
stories to tell. —Police officer conducting a training
ood citizens who follow the law and have little or no
interaction with police or the criminal justice system
(as is the case with many shaken baby suspects) are at a
tremendous disadvantage. The system is powerful, backed
by taxpayer money and manned by people with guns. It
exists to protect innocent citizens by apprehending and
punishing criminals. When police or prosecutors think
you’re a criminal, the system that generally protects you
can turn against you with overwhelming force. Your only
shield is the Bill of Rights. Be thankful for it! There are
countries around the world where individuals have no rights
and no protection against governmental power.
Innocence and honesty are not shields! They are
“handmaidens of miscarriages of justice.” Silence is a shield.
Naïve people believe that if they have committed no crime, they
have nothing to fear from police. That is the opposite of reality,
not because police are bad, but because they are human. They
are doing what they have been trained to do, taking their cues
from doctors who told them you committed a homicide.
One detective was asked at what point he decided a father
was guilty of shaking his baby. His answer, “When I saw him,
I knew.” Police have seen more evil than most people can
possibly imagine. It colors the way they view everything.
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According to former Miami policeman Dale Carson, author
of Arrest-Proof Yourself, it might help to imagine looking at
the world through the eyes of a cop. Police are, for the most
part, good guys who keep evil at bay. They pride themselves
on disabling “bad guys.” They receive praise, prestige and
promotions for success in doing so. Each arrest scores “points.”
Felony arrests score more points than misdemeanor arrests.
Felonies that make the nightly news, as shaken baby cases often
do, score way more. If police think you’re a “bad guy” they
may enjoy arresting you! It can make their day!
Police Investigation
There are basically only three ways to prove a crime:
reliable eyewitnesses, a confession, and forensics.
When informed of a crime or possible crime, police are
responsible to:
1. Determine what happened
2. Determine who caused it
3. Ascertain motives
4. Gather and preserve evidence
5. Interview suspects and witnesses
6. Arrest suspect
7. Interrogate suspect
8. Write a report
9. Assist prosecutors in preparing for trial
10. Testify in court
This section will address the first four responsibilities in the list.
What Happened, Who Caused It, and Why
Police begin shaken baby investigations believing they
already know the answers to these questions because of what
the doctor said. What happened? A baby was violently shaken
and/or slammed, murdered. Who caused it? The last person
with the child. Why? Because they were stressed or frustrated
and the baby’s inconsolable crying pushed them over the edge.
It’s a slam-dunk. Classic. Textbook. A no-brainer.
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These answers are provided by SBS dogma. Never mind
that the baby wasn’t crying and you weren’t stressed or
frustrated. That’s irrelevant. It doesn’t fit the picture. It doesn’t
“ring true.” They already know the story outline. They just
want to fill in the specific minor details of your particular story.
When did the baby last eat? In which room did it occur? At
what time? What happened just beforehand? And so on.
Said a police instructor: “The initial thing is to determine
whether the injury is accidental or inflicted. Now doctors are
sometimes sitting on the fence, especially emergency room
doctors because they don’t want to go to court. So you say,
‘Doc, you’ve gotta tell me. Did somebody do this to the kid?
Did somebody do this to the kid or could this be accidental?’
Investigate no matter what they say. Don’t take their word for
it.” Police don’t like ambiguity. They push doctors toward a
possibly premature diagnosis. Odds are it’s a homicide. Time is
wasting! The longer the delay, the tougher the investigation.
Once a detective “knows” in his mind who the perpetrator
is, even the most fair-minded and honest officer cannot avoid
bias. Bold-faced lies told by non-suspects may be believed.
Clear truths that point to the suspect’s innocence may be ignored
or disregarded. The officer will tend to focus on and remember
information that supports his hypothesis while dismissing as
“irrelevant” anything that doesn’t. Information viewed through
the lens of bias can be twisted without a police officer being the
least aware it is happening.
Scene Investigation
Police try to arrive at the scene of an alleged assault or
homicide as quickly as possible, before the scene has been
altered. Whoever answers the door (not the potential suspect if
there’s a choice) should step outside the door and close it behind
them, or open the door only enough to speak to the officers and
block the opening with his/her body. If the police ask to come
in and talk, say, “I’m sorry. This really isn’t a good time for us.”
If they press, repeat, “I’m sorry. This is really a bad time for us.
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If they threaten to get a search warrant, politely say, “Of course
you can come in if you have a warrant, but right now, I’m sorry,
we just need to be alone.”’
To get a search warrant, police must show probable cause
and state specifically what is to be seized. They must conduct
the search and seizure within a specified time period. “Probable
cause” means a reasonable ground to believe that an offense has
been committed—less than evidence justifying a conviction, but
more than bare suspicion. Police will always be able to get a
warrant in a shaken baby case. It is their right and responsibility
to investigate the incident, but you are not obligated to help
them gather evidence against you.
Before or when police arrive with a search warrant, call an
attorney and request that he or she come to observe the search.
As detectives search, watch silently and let the them do their
job. If you talk or distract them, they may intensify the search.
If you are not home when they arrive, they will probably not
allow you back into the house until they’re finished.
A search warrant may allow them to:
1. Search all rooms and vehicles. Does anything seem to be
missing or out of place?
2. Photograph everything. Photographs may be shown to
emergency responders and neighbors to see if they notice
anything unusual or anything that might have been altered.
3. Videotape everything: all rooms, cots, the high chair,
bathing equipment, the bathtub.
4. Measure everything: chairs, couches, beds, counters.
5. Investigate the floor coverings. Cut out a piece of flooring
or carpet where the child’s collapse is reported to have
occurred.
6. Look for blood, hair, or DNA where they think a baby
might have been slammed against a wall or furniture.
7. Photograph or seize any possible motive evidence. Soiled
diapers, spills, soiled clothes, food containers, bills,
diaries, calendars, evidence of marital trouble or recent
stressors.
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8. Collect samples of any food the baby ate that day.
9. Assess the home for child safety. If children are present,
assess their well-being. Photograph medications and
poisons in the house: teething medication, Oragel,
Children’s Tylenol.
10. Look for evidence of induced illness: salt, insulin,
methadone.
11. Check voice and text messages. Seize telephone and
mobile phone records.
12. Seize soiled diapers, bottles, food containers, contents of
trash.
13. Seize child care records, baby’s health records, growth
charts, insurance records.
14. Seize family photo albums and home videos. Look for
evidence of improper handling of the child. Find a picture
of a happy, healthy baby to be used at trial.
15. Seize computers.
16. Look for evidence of substance abuse.
Investigators may search for evidence that you are under
stress from financial difficulties, depression, health, or marital
problems. They may question neighbors about whether they
heard screaming, crying or other noise and ask for their general
impression of the suspect’s parenting or child care abilities. A
recent argument with your spouse could be used against you.
Detectives will try to establish a “pattern of abuse.” If a
child has healing injuries, they’ll attempt to fit them into times
the child was under your care. They will look for evidence of
“triggering events” such as soiled diapers. (Never mind that
babies cry and soil their diapers all the time. You’ll have a hard
time proving to a jury that nothing out of the ordinary happened
that day or that crying and soiled diapers do not bother you.)
If police do not arrive immediately and you straighten the
house, do the dishes, or wash clothes, you have tampered with
the scene of a crime in their view. One police detective said,
“Changing clothes soiled by vomit is a cover up.”
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Police Interview
Police may arrive at your home before emergency workers
do or at the hospital before the baby does. They try to get as
much information as possible immediately, before a suspect
suspects she’s suspected.
One police officer said, “I like to put a recorder in my
pocket and walk in right behind the mom who’s hovering over
the child’s bed in the intensive care unit. I introduce myself and
tell her this is a routine investigation. Use the word ‘routine’
over and over again. Convince them of the ‘routine’ nature of
your investigation. People hear that and they’re disarmed and
then they’ll talk to you. I say I’m so sorry about the baby. What
happened to the baby? By the time you’re done, you’ve got
your baseline interview.”
Caretakers, trying to help, search their minds for anything
that might possibly have caused the symptoms. Their
brainstormed suggestions become what police call a “morphing
story.” According to SBS theory, “a false, discrepant, evolving
or absent history” can only mean abuse.
Police will play on your conscience to get you to talk
to them. They know most people like to feel needed and
important. They’ll stress that they need your help. They need
to learn exactly what happened, so doctors can treat the baby’s
injuries. “We know you want to help the baby! You obviously
care about him very much. Please help us understand exactly
what happened.” Such statements can be lies.
Courts have repeatedly ruled that it is legal for police to lie
to suspects. It’s OK for them to swear they’re telling the truth
and tell you they’d lose their jobs if they ever lied. They can lie
and say if you just confess, your children will not be taken away
and you will be allowed to go home to your family. They can
lie and say you were seen by a witness or caught on videotape.
They can lie and tell you someone witnessed what you did and
described it in great detail.
Police are advised to “invite the accused into conversation
with the investigator. The ego strength of such perpetrators
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is so immature in the first place that such a stance by the
investigator will make the perpetrator believe he or she is really
helping out. Building a rapport with the perpetrator can lead to
a confession.” They’ll press and press, “Think harder. What
happened? We have to come up with something so we can save
this boy’s life!”
“With a confession, a video reenactment, and medical
evidence, jurors will convict,” said one prosecutor. A third of
SBS cases turn on small bits of evidence garnered by police.
You must realize that police are angling for a confession!
Nothing you say to them will change that orientation. A suspect
(or “person of interest” in modern jargon) will invariably regret
talking to police. By the way, a police officer told me that.
Police regularly interview hardened liars. They assume
everyone lies to them. They do not give the benefit of doubt.
They don’t have doubt about your guilt! They can ferret out
the tiniest lies or inconsistencies. They will attempt to lock
you into a story that they can prove to be inconsistent with
facts, with what you told someone else (911, EMT, doctor), and
with the severity of the baby’s injuries. They strive to secure
a “voluntary” confession. They aren’t concerned about being
polite. They will probe and test everything you say with followup questions. They know how to confuse and trap you. No
matter that you’re completely innocent and telling the truth.
You won’t be able to avoid giving them information that can be
used to incriminate you.
Detectives ask the same questions again and again, more and
more quickly. They interrupt and change subjects in the middle
of a sentence. They ask compound questions and try to confuse
you. If you talk, you incriminate yourself. If you don’t talk,
they say you clearly have something to hide. If you cry, you
know you’re guilty. If you don’t cry, you have a hard merciless
heart. If you’re screaming and hysterical, you’re putting on
an “act.” If you make eye contact, you have “attitude.” If you
don’t make eye contact, you’re concealing something. If you
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are quiet and composed, you are not appropriately upset. If you
called 911, you’re guilty. If you drove the child to the hospital,
you’re guilty. Anything you do or don’t do is evidence of guilt.
Police are acting during interviews and interrogations. They
may isolate and confine you so you lose contact with reality.
They may show sympathy and exhibit unexpected kindness.
They’ll express understanding for how difficult your day was.
They’ll blame the baby, minimize the implications, and offer
plausible excuses. They can appear impartial, neutral and openminded when they are not. They will try to get you to complain
or gossip. They’ll listen with sympathy and respect. They can
lie and deceive about the “evidence” they have against you.
They try to win your confidence so you’ll trust them and give
them the statement they want, true or not. They’ll make you
repeat your story over and over and promise to help “if you’ll
just be honest with me.”
One writer described the police interrogator as
…a salesman, a huckster as thieving and silver-tongued as
any man who ever moved used cars or aluminum siding,
more so, in fact, when you consider that he’s selling long
prison terms to customers who have no genuine need for
the product.
You don’t need what he’s selling. Resist temptation!
Most police believe they know when a person is lying and
when he’s telling the truth. But just as shyness can appear to
be arrogance, an innocent but timid person’s fear of authority
can appear to be a guilty person’s fear of discovery. Research
shows that police aren’t nearly as competent as they think they
are at detecting lies. Police may trust “gut feelings” and think
they know how an innocent person in your position would react.
Said one officer, “If you accuse and they don’t deny, they’re
guilty because an innocent person WOULD react.”
The bottom line, as you’ve probably gathered, is you’re
guilty.
Refer to p. 127 for more information on tactics police
are trained to use. The object of an interrogation (or suspect
“interview”) is to secure a confession. Period. Police might
lead you to believe they already have all they need to convict
you. They might close every door of escape and promise
benefits if you just confess. Cling fast to truth. If you didn’t
harm the baby, don’t let them convince you otherwise. (If
you did hurt the baby, or think you might have, tell your
attorney rather than the police. And please, if you are guilty,
be completely honest with your attorney and work out a plea
bargain.)
If you do talk to police (hopefully with an attorney present
or at least your spouse), stand or sit straight. Show respect. Be
deferential. Make eye contact. Do not fidget or slouch. Don’t
chew gum, smoke, or act too casual. Calmly and truthfully
answer the questions posed, but do not ramble, explain, or
volunteer information. If there’s silence in the room, don’t be
tempted to talk. Let them break the silence. Tell the truth. As
a former police officer put it, “Truth bores cops. That’s a good
thing. Remember it.”
All interviews and interrogations should be taped. If they
are not, it will be your word against a police officer’s word
as to what you actually said. The jury will believe him over
you. Two police officers may be present during an interview/
interrogation, the second as a corroborating witness and to sign
your anticipated confession. In Margie’s case, we’re glad there
were two. The male officer swore under oath, twice, that she
had confessed while he was changing the tape in the recorder.
The female officer testified she did not hear a confession.
If you confess, an officer might write out a statement and
ask you to read and sign it. Don’t sign your life away!
Facts investigators want to establish during the interview:
1. Who lives in the house?
2. Where was everybody at the time? (This will be verified
in an effort to prove you lied.)
3. Was anybody else in the home that day?
4. Did anybody else care for the child that day?
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5. When and where did you first notice that something was
wrong?
6. What were you doing at the time?
7. In what order did the symptoms develop?
8. At what time did you notice each symptom?
9. What was your response when you noticed those things?
10. When did the child last eat? Did he eat earlier that day?
11. What kind of a baby is he? Does he cry a lot? Is he
stubborn or disobedient? Does he walk? Is he hard to
control?
12. How do you feel about the child?
13. How does the mother feel? (if you’re a sitter or father)
14. How do you feel when you’re in the middle of something
and the baby starts screaming?
15. When was he last “fine”?
As the interview intensifies, police might say, “The doctor
says that couldn’t have happened. The doctor says that couldn’t
have caused these injuries. The doctor says this is what
happened. Did you just lose it? Did you just lose it once? Is
it possible you lost it? Just for a second? Clearly you didn’t
intend to hurt the child. I really believe that. Everybody loses it
sometimes. Did you just lose it for a minute?”
“Then work up from there. Start leading them down the
path. A beautiful thing is they will go down the path!” said one
detective during a training class.
Wrote one babysitter: “When I read the police reports, I
couldn’t believe how much my words had been twisted. I hope
this will come out in the trial!”
“The police didn’t care. I was disposable. I was
expendable. They didn’t care,” said a man who was eventually
exonerated by DNA.
It’s not personal. They’re just doing their job. They get a
lot of “bad guys” using these techniques that they might not
get otherwise. Society is a lot safer because of what they do to
combat crime.
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“Dirty Dozen” Suspicious Stories in Fatal Child Abuse Cases
Drs. Robert H. Kirschner and Harry L. Wilson, in Child Abuse:
Medical Diagnosis and Management, listed a “dirty dozen”
cover-up stories favored by shaken baby suspects:
1. Child fell from a low height.
2. Child fell and struck head on floor or furniture, or hard
object fell on child.
3. Unexpectedly found dead.
4. Child choked while eating and was shaken or struck on
chest or back.
5. Child suddenly turned blue or stopped breathing.
6. Sudden seizure activity.
7. Aggressive or inexperienced resuscitation efforts to a child
who suddenly stopped breathing.
8. Alleged traumatic event a day or more prior to death.
9. Caretaker tripped or slipped while carrying the child.
10. Injury inflicted by a sibling.
11. Child left alone in a dangerous situation (e.g. bathtub) for
just a few minutes.
12. Child fell down stairs.
Video Re-enactment
In the words of a police training manual on SBS:
In many cases the suspect will be so convinced of the
strength of their story that they will agree to the request
to recreate the last moments before the illness of the baby.
Video reconstruction will show the investigator much
of what happened in the lead-up to the offense as it will
often be truthfully reconstructed but with the shaking left
out. The suspect will quite often inadvertently give the
investigator the evidence needed to take the case forward.
The reconstruction will serve to show that the suspect
admits to being alone with the child when the catastrophic
collapse occurred.
Detectives may ask the suspect to show with the doll
everything that preceded the collapse that day. Where was he
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when you found him? What did you do? Did you try to wake
him? Did you shake him to try to wake him?
By the way, the jury may not see the entire tape, video or
audio. Especially if long, it will likely be edited to show only
“relevant” portions—the incriminatory portions. Issues relating
to what parts of the tape will be seen by the jury should be
contested if necessary and settled prior to trial.
Interview Others
Police can interview anyone who could conceivably provide
“relevant” information. If you’re a sitter, they may try to get
the baby’s parents to criticize you. In Margie’s case, the parents
were offered counseling free of charge to help them deal with
the loss of their baby. It soon became apparent that the purpose
of the “counseling” was to stir up anger and resentment so they
could more effectively testify for the prosecution. They refused
to continue with counseling when that became apparent.
If you’re a parent, police may try to turn your spouse against
you. They might threaten, “This was a homicide. Somebody
killed that baby. Somebody has to be charged. There’s only two
people who could have done it. If it’s not her, it has to be you.”
They’ll say the suspect’s defense lawyer will try to convince the
jury that it was you and they need your help to prove it wasn’t.
Police may try to interview your children, or get CPS
to do so. Children are even more vulnerable than adults
to psychological techniques of extracting information, not
necessarily truthful information. Do everything in your power
to prevent interviews with the children.
Dealing with police can be very traumatic and confusing.
Always remember that you know something they don’t, the
truth! Cling to it tightly!
Interview, Interrogation, Inquisition
T
echnically, there is a difference between an interview
and an interrogation. The purpose of an interview is to
open-mindedly gather information from witnesses prior to
the arrest of a suspect. It is not accusatory. The purpose of
an interrogation is to extract a confession from a suspect,
generally after arrest. But, as one police officer put it, “We
do not do interrogations. We do not do interrogations.
That’s a bad, mean Nazi kind of word. We do ‘interviews.’
You’d be amazed how much difference that word makes.”
In practice, interviews slide into interrogations through
enveloping shades of gray. Good interrogators know how to
turn up the heat gradually, with finesse, to “boil the frog” before
a suspect becomes fully aware of what is happening.
The Importance of Confessions
False confessions rank second only to mistaken
identification as a cause of proved wrongful convictions. Jurors
tend to assign great weight to confessions and regard the rest
of the trial as superfluous. Even when there is no physical
or credible evidence to corroborate a confession, those who
confess falsely are three times more likely to be found guilty at
trial than to be acquitted (73% v. 27%).
Crimes can be proved by: (1) reliable eyewitnesses, (2)
forensics and (3) confessions. Those who work to enforce
the law love confessions! Jurors regard them as damning
evidence of guilt and many verdicts turn on them. One scholar
estimated that more than 80% of criminal cases are “solved” by
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a confession. Juries can’t imagine that anyone would admit to
something they didn’t do, especially something as horrible as
shaking or killing a defenseless child.
Confessions made under torture are not admissible in
United States courts. The U. S. Supreme Court outlawed “the
third degree” in 1936. To be admissible, a confession must the
product of a suspect’s “free will.” In Arizona v. Fulminante
(1991), the U.S. Supreme Court ruled that a conviction based on
a coerced confession must be automatically reversed unless the
prosecution can prove beyond a reasonable doubt that the error
was harmless.
Psychological rather than physical methods are now used
to secure confessions. They work well even with hardened
criminals. Police are trained in these techniques. You will
recognize the Reid method (below) if you experienced it.
Unfortunately, not all officers are thoroughly trained to
minimize the danger of eliciting false confessions. Training
tends to increase the confidence of interrogators more than their
actual discrimination. In one study, 91 experienced detectives
were assessed for their ability to separate truthful from lying
suspects. Their success rate was only 49%, less than chance!
The Reid Method
For questioning, police attempt to get suspects into a private
room with bare walls, minimal furniture, no windows and no
noise. An unfamiliar location is preferable.
The Reid Nine Steps of Interrogation are designed to
lead a suspect “down the path” toward an admission of guilt.
Depending on the situation and individual, the approach will
vary somewhat. Eventually two alternate, but incriminating,
explanations are offered. Acceptance of either proves guilt.
These techniques can be nearly as effective as torture in
extracting confessions from truly guilty suspects.
Step 1: Direct Confrontation. Lead the individual to understand
that the evidence points to him/her as a suspect. Offer an
early opportunity to explain why the offense took place.
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Step 2: Try to shift the blame away from the suspect onto some
other person or set of circumstances that prompted the
suspect to commit the crime. Develop themes containing
reasons that might justify or excuse the crime and pursue the
one to which the individual is most responsive.
Step 3: Never allow a suspect to deny guilt. According to a
training video, “Don’t let a person say the words ‘I didn’t do
it.’ The more they say that, the more difficult it is to get a
confession.”
Step 4: At this point, the accused may provide a reason why he
or she did not or could not have committed the crime. Try
to use this to move toward a confession.
Step 5: Reinforce sincerity to ensure that the suspect is
receptive.
Step 6: The suspect will become quieter and listen. Move the
discussion towards offering alternatives. If the suspect
cries, infer guilt.
Step 7: Pose an “alternative question.” Give the suspect two
choices for what happened; one more acceptable than
the other. The suspect will generally choose the more
acceptable option, but either alternative is an admission of
guilt.
Step 8: Lead the suspect to repeat the admission of guilt in the
presence of witnesses.
Step 9: Document the suspect’s admission and have him or her
sign a written confession.
A Method that Works Too Well
Criminals tend to be extroverts. The Reid techniques work
well with extroverts. Innocent suspects may be introverts and
much more suggestible. Confident authorities can convince
innocent people that they did things they did not do!
Creators of the method, Inbau and Reid, insist that innocent
suspects will show anger when accused and vehemently deny
guilt. But that is not invariably true. The Reid method has led
to wrongful confessions, and has consequently been banned
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in the United Kingdom. Investigators are cautioned during
training to discern between true and false confessions,
A confession that merely acknowledges involvement in a
crime, ‘I did it’, but contains no additional details, should
be viewed suspiciously. The confession should contain
enough corroborative information to prove that the suspect
is, in fact, telling the truth when he accepts responsibility
for the crime.
Perhaps this should be Step 10! It is too frequently neglected.
The longer the interrogation process, the greater the
likelihood of a false confession! There are reports of 12-hour
interrogations stretching through entire nights. Under the
unrelenting pressure of continuous questioning and suggestion,
innocent individuals begin to feel increasingly incompetent,
helpless and out of control. Eventually, truth and falsehood
can become blurred in their minds. They give up the fight and
submit, thinking they’ll never escape the ordeal unless they tell
the officer whatever he wants to hear.
An experiment was done to test the power of the Reid
method to induce innocent people to confess to things they did
not do. Saul Kassin hypothesized that the presentation of false
evidence can lead vulnerable individuals to confess to an act
that they did not commit, and even to internalize the confession
and invent details consistent with a new and false belief.
To test the hypothesis, experimenters invited 79 students to
participate in what was billed as a “reaction time experiment.”
After being warned not to touch the “ALT” key because
the computer would crash and the professor would be very
upset, students were instructed to type letters, dictated at
various speeds. After 60 seconds, the computer crashed. The
experimenter accused the volunteer of touching the forbidden
key, and told half of the students that he’d seen them do it. 69%
of participants were persuaded to sign a written confession
that they had hit the key and caused the computer to crash. Of
those who had been told they were seen touching the key, 100%
signed the confession. To test whether subjects had internalized
guilt, another experimenter posing as an onlooker asked them
when they left the room what had happened. 28% actually
believed they had hit the “ALT” key. Nine percent confabulated
details to embellish the false reality they had been led to believe.
Types of False Confessions
There are three types of false confessions:
Voluntary False Confession: More than 200 people confessed
to kidnapping Charles Lindbergh’s baby, probably for the
publicity. People sometimes confess to protect a guilty
relative or friend. A father may confess so his wife can
go home and care for the children. Some people feel
guilty about everything that happens in their presence! A
voluntary confession is one offered without police pressure
or even questioning.
Coerced-Compliant False Confession: These are confessions
secured through torture, threats and promises. The suspect
confesses in order to secure a benefit, go home, be reunited
with children, gain promised leniency, or escape physical
injury. It is illegal for police to explicitly threaten or
promise leniency, but they are allowed to make statements
that lead a suspect to infer a threat or promise.
Coerced-Internalized False Confession: As a result of anxiety,
fatigue, and pressure, the suspect comes to believe she
committed a crime. Her memories themselves are altered
and she becomes convinced she did something she does
not remember, perhaps during a “blackout” as suggested
by the interrogator. The combination of a confident and
authoritative interrogator and a anxious, suggestible suspect
(young, trusting, naïve, low intelligence, on drugs) is a
recipe for a false confession.
One father said he had no memory of shaking his son,
but that he couldn’t argue with doctors. “If the doctors say it
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happened in this time frame—and Lord knows they know a lot
more about it than me—if they say it happened on my watch,
then that’s the only time it could have happened.”
Police may be unwilling to believe that any confession could
be false or coerced, sometimes even when there’s DNA proof!
This mindset is demonstrated by the words of Edwin Meese,
former Attorney General of the United States: “The thing is, you
don’t have many suspects who are innocent of a crime. That’s
contradictory. If a person is innocent of a crime, then he is not a
suspect.”
Here are some comments by people who confessed in
shaken baby cases:
• I do feel guilty but I don’t know what happened. My fear is
maybe I did shake the baby.
• I confessed because I felt I had to take the blame.
• I feel responsible. I know I had to have done something.
• You sit at home on your own and you have these thoughts
going through your head. You know you did not do it, but
it’s terrible. You convince yourself, start doubting yourself.
People are thinking you did it, and you cannot move on until
you have been told you did not do it.
Once a confession has been obtained, police terminate
the investigation. The focus shifts to securing a conviction.
Detectives pass the ball to a prosecutor and move on to
other cases. Exculpatory evidence, as a result, may never be
discovered.
H
To Polygraph or Not to Polygraph
onest people who are accused of lying feel a strong
sense of injustice. In the absence of eyewitnesses or
other evidence to show what actually did occur, how can a
person prove they’re telling the truth?
Shaken Baby Syndrome cases rely on “expert” medical
opinions by doctors who may never have met or talked to the
accused person. Doctors testify that physical symptoms they
observed in a child prove both timing and causation. A suspect
who denies wrongdoing, therefore, is (in their minds) lying.
Innocent defendants may want to take a polygraph, in the
hope that it will convince someone to believe them!
This section contains general facts and history to inform
any discussion you have with your attorney about taking a
polygraph. Although polygraph results are not admissible at
trial, they may be helpful in other ways. Sometimes a favorable
result can convince police to broaden an investigation rather
than focus solely on the initial suspect. Prosecutors with an
otherwise weak case may be persuaded to drop charges or offer
a generous plea bargain.
History of the Polygraph
Ironically, the judicial standard by which the purportedly
“scientific” theory of Shaken Baby Syndrome became
admissible in court dates to the early polygraph. In 1923, a man
named Frye was on trial for murdering his wife. Dr. William
Marston strapped Frye to a primitive “lie detector” (systolic
blood pressure measuring instrument) and asked him questions
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about the murder. Dr. Marston then gave an expert opinion that
Frye was telling the truth. The trial court refused to admit the
testimony and Frye was convicted. An appellate court affirmed
the conviction.
Under Frye, admissibility of “scientific” evidence was
determined by a consensus of scientific opinion. No other test
for reliability was required. In 1993, the United States Supreme
Court abandoned the Frye test in favor of Daubert (see pp. 198200), though many states still rely on Frye (see p. 289).
For 50 years, polygraph evidence was barred from court.
During that period, polygraph testing improved, standards were
adopted, the American Polygraph Association was formed, and
research on reliability was conducted (see www.polygraph.org).
In the 1970s, some states loosened the rules and allowed juries
to hear polygraph evidence in certain circumstances. This led
to a “battle of experts” regarding validity, from which the courts
retreated, again barring polygraph evidence.
A final blow was dealt in March 1998, when the U.S.
Supreme Court ruled that a criminal defendant has no
constitutional right to present evidence at trial of having passed
a polygraph exam because there is “no consensus that polygraph
evidence is reliable.” Wrote Justice Clarence Thomas for the
court: “The aura of infallibility attending polygraph evidence
can lead jurors to abandon their duty to assess credibility and
guilt.”
One reason for not admitting polygraph evidence is a
concern that jurors might wrongly regard results as conclusive.
Were polygraphs to be generally admissible, juries might
interpret a defendant’s refusal to take the test to be evidence of
guilt. Ironically, “scientific” testimony that is admitted in court,
including “expert” psychological opinion, is less objective and
reliable than polygraph evidence! The threshold for admission
of polygraph evidence has remained far higher than that
required for other types of supposed “scientific” evidence.
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What a Polygraph Measures
Polygraph machines record changes in pulse rate, blood
pressure, breathing and perspiration as a person answers a
series of yes or no questions. They do not measure truth or
lies, but physical changes that occur in response to questions.
The underlying principle is that lying causes internal conflict,
conflict causes fear, and fear results in clearly measurable
physiological changes. A lying person’s fear of detection, it is
claimed, produces involuntary physiological responses which
can be objectively measured and interpreted.
That theory, while plausible, fails to explain the high
accuracy of the polygraph in low-emotion situations, such as
when a volunteer is instructed to select one of five numbers and
then lie about which one he chose. It does not account for the
fact that fear of being disbelieved “looks like” fear of detection.
Polygraphs are most accurate when a criminal suspect
denies having committed a specific physical act, such as robbing
a store or violently shaking a baby. They are not especially
useful in ascertaining a suspect’s intention or state of mind.
Types of Polygraphs
There are four standard types of polygraph tests, of which
two, the guilty knowledge test and the control question test, are
most common.
In the guilty knowledge test, suspects are asked a series of
multiple choice questions concerning information only a guilty
person would know, such as, “What color was the stolen car?
Red? Blue? Black? Tan? White?” The suspect is directed to
answer yes or no to each question and her bodily responses are
recorded. If a pattern emerges that indicates guilty knowledge,
the person is judged to be lying.
The control question test consists of a mix of control
questions (“Is your name Sue?”) and relevant questions (“Did
you shoot Brad Green?”). If a suspect’s reaction to both types
of questions is the same, truthfulness is indicated. If not,
deception is indicated.
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Most examinations involve a pretest interview, which lasts
about an hour, the test itself, and a final interview, all of which
should be videotaped. A blood or urine test may be required to
ensure that the subject is not under the influence of drugs.
At the test itself, the examiner attaches a pneumograph tube
to measure breathing, a blood pressure cuff, and electrodes. The
subject is instructed to look straight ahead during questioning.
The examiner sits to her side behind a desk containing controls
that the subject cannot see.
During the test, questions are asked every 25 or 30 seconds
to allow time for physiological reactions to subside. The
sequence of questions is usually repeated three times. The
environment in which the test is conducted should be free of
distraction (noise, observers, etc.) to assure that physiological
reactions are to the questions, not to other stimuli.
Accuracy of Polygraphs
Mock crime studies of the control question test have yielded
accuracies of about 95%, with twice as many errors indicating
deception by people who were actually truthful as vice versa.
Critics claim that there is no way to prove that these results
hold in cases where criminals are involved and ground truth is
not known. All research indicates that deceptive subjects are
discovered with high rates of accuracy but truthful persons are
frequently misjudged as being deceptive. More weight should
be given, therefore, to test results that suggest truthfulness than
to results that suggest deception.
The accuracy of a test can vary according to the quality of
the examiner.
Limitations of Polygraphs
Polygraphs are not perfect. Factors other than truthfulness
or deception can affect the results.
1. Innocent subjects are generally advised not to take
polygraphs. The test may indicate deception when there is
none. It is more difficult to detect truthfulness than lying.
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2. Any strong emotion can be misread as fear of detection.
Victims of crime do poorly on polygraphs, due to their
strong emotions around the incident. A person’s reaction of
surprise may appear identical to a reaction of anxiety.
3. Results may be invalid if the person was impaired at the
time of the crime.
4. If the subject has no conscience or does not believe that
lying is morally wrong, there may be no internal conflict or
resultant physiological changes.
5. Countermeasures can invalidate the test, such as drugs,
self-hypnosis, meditation, breathing and musculature
alternations. Examiners must be vigilant to spot these.
6. Polygraphs work best with people who believe they work.
7. Stress of any kind can invalidate the test. People who have
been wrongly accused of a crime are under a lot of stress!
8. The neutrality of the examiner is important. If an examiner
wants to prove that a subject is lying, the results will
be tainted. It is a misuse to turn a polygraph into an
interrogative wedge to move a suspect toward a confession.
Many people accused of shaking infants have passed
polygraphs, including the nanny who brought Shaken
Baby Syndrome to the forefront of public attention, Louise
Woodward. Such a pattern would be extremely unlikely if all
those people, not hardened criminals but young parents and
babysitters, were truly guilty.
Should You Take a Polygraph?
Your attorney should advise you as to whether a polygraph
is a good idea in your situation. At a minimum, a positive
result might give your supporters more confidence that you are
innocent. On the other hand, the test may not be worth the cost.
In general, defendants are advised not to take policeadministered polygraphs. Police can lie to you about the results!
Be sure any examiner you use is FBI trained and certified
through the American College of Forensic Examiners (ACFE).
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Polygraphs in Shaken Baby Syndrome Cases
Here are a few examples of the use of polygraphs in SBS cases:
• A sitter passed a polygraph but neither parent did. The sitter
was charged with murder anyway. This despite the very low
likelihood that three examinations could all be wrong!
• A sitter was questioned but charges were not pressed
after she passed a polygraph. Nineteen years later, when
polygraphs were no longer considered reliable, the case was
reopened and she was charged with murder.
• The jury in one case was told that a prosecution witness had
taken a polygraph, but not that she had failed it!
• In court, a jury was told that the defendant did not cooperate
when investigators offered a polygraph test. The jury
inferred guilt.
• A 7-year-old girl told police she threw a 10-month-old girl
onto a carpeted concrete floor. The day-care worker, who
did not see the incident, was given a polygraph and passed.
Police are confident the girl killed the infant. No charges
were filed.
• A sitter who had already accepted a plea bargain continued
to vehemently deny she hurt the baby. The judge asked if
she’d be willing to take a polygraph. She said yes, took the
test with the top examiner at the Sheriff’s office, and passed.
The judge dropped all charges.
Please forgive me for appending a funny story. Laughter
can be good medicine for an aching heart.
Police in Radnor, Pennsylvania interrogated a suspect by
placing a metal colander on his head and connecting it with
wires to a photocopy machine. The message “He’s lying,”
was placed in the copier, and police pressed the copy button
each time they thought the suspect wasn’t telling the truth.
Thinking the “lie detector” knew his secret thoughts, the suspect
confessed!
Autopsy
It is beginning to appear that forensic science contributes more
to convicting the innocent than anyone previously suspected.
—D. Michael Risinger, et al.
I
f a baby dies unexpectedly, an autopsy will be performed
to determine the cause and manner of death. In cases of
alleged Shaken Baby Syndrome, the person who conducts
the autopsy will testify as an expert at trial. Especially if
there was no confession, this doctor’s expert opinion may
constitute the strongest evidence against you.
An autopsy is a systematic external and internal examination
of a body that includes both gross and microscopic examination
of body tissues. Blood is collected and tested. Full body
X‑rays may be taken. Bone density should be tested, especially
in alleged abuse cases. Small (2x2 cm) sections of tissue are
sent to a histology lab, where they are shaved, mounted on
glass slides, and stained with dyes to differentiate cells for
microscopic examination. Toxicological studies are conducted.
Such close examination can reveal diseases or conditions
doctors had not previously suspected or diagnosed. In about
23% of cases in the year 2000, autopsies overturned the treating
physician’s official cause of death. Many people have been
harmed by medical treatments they received for a misdiagnosed
condition. According Richard Devereux, professor of medicine
in New York, “The low rate of autopsies has generated a
collective sense of cockiness in the medical community about
how accurate our diagnoses are.”
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Doctors rarely encourage autopsies, but relatives of a
deceased person can request one. The cost is about $2,000.
Autopsies can reveal congenital conditions that might lead to
early diagnoses in surviving relatives, potentially saving lives.
Medicolegal autopsies are conducted at government expense
when there is a possibility of foul play. Coroners or medical
examiners are charged with the task of determining whether
an unexpected death was natural, an accident, a suicide, or
a homicide. If a death is ruled a homicide, detectives must
determine who is responsible. If that cannot be determined,
charges are not filed and it may become a “cold case.” Some
parents or babysitters have been arrested a decade or more after
a baby’s death after “cold cases” were resurrected.
Each year, about 1% of the United States population dies
(about 2.6 million people). Medical examiner or coroner offices
receive nearly a million reports of deaths, and accept about half
that number for further investigation. On average, of the deaths
investigated, 40-50% are attributed to natural causes, 27-40% to
accident, 12-15% to suicide, and 7-10% to homicide. Just 1%
of deaths are undetermined. A preliminary autopsy report states
the cause of death. A full report is issued a month or so later.
What Is Forensic Science?
The word “forensic” derives from Latin for “forum”
meaning “in open court, public” and “pathos” meaning
“suffering.” Forensic science differs markedly from empirical
science, a fact not understood by most jurors, who think science
is science—true, proven, irrefutable, beyond doubt.
Empirical science, which gave us modern technology
and medicine, describes how things operate. It is based on
experiment and observation. Its goal is to prove facts beyond all
doubt. Its conclusions are open to replication and falsification.
Forensic science, by contrast, attempts to reconstruct
historical events on the basis of remaining evidence. It uses
science to cast light on history. Historical events cannot be
replicated, so forensic science is less reliable than empirical
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science. Interpretations of forensic findings rely heavily on
theory, in this case Shaken Baby Syndrome theory.
The term “forensic science” refers to a broad array of
activities, including handwriting analysis, DNA testing,
ballistics and fingerprint identification. Some of these activities,
including DNA testing, have a well-developed research base.
Others have never been exposed to stringent scientific scrutiny.
Jurors are rarely qualified to distinguish good science from
bad. When “experts” confidently report unreliable “scientific”
results, jurors defer and issue erroneous verdicts, as proven by
hundreds of DNA exonerations. (DNA evidence, by the way, is
available and relevant in less than 10% of criminal cases.)
Wrote Eric S. Lander, a molecular biologist, “Forensic
science is virtually unregulated—with the paradoxical result that
clinical laboratories must meet higher standards to be allowed
to diagnose strep throat than forensic labs must meet to put a
defendant on death row.”
Forensic science has been described as a “handmaiden” of
the legal system. Many fields of forensic science have no use
outside of law enforcement.
Prosecutors don’t like doctors to equivocate. They want
clarity. They want confident answers, now! Doctors who help
win convictions turn into prosecution superstars. A few have
engaged in out-and-out fraud, suppressing exculpatory evidence,
claiming under oath that their methodologies have perfect
accuracy, exaggerating statistical significance of test results, and
even committing intentional perjury “for the cause.”
The practices of Oklahoma City forensic chemist Joyce
Gilchrist were questioned for 15 years before she was stopped,
Wrote James Starr, 10 years before she was publicly discredited,
“In her missionary zeal to promote the cause of the prosecution,
she put blinders on her professional conscience so that the
truth of science took a back seat to her acting the role of an
advocate.” Ethics complaints against her eventually succeeded.
Said the person who filed the successful complaint, “The whole
criminal justice system has failed.”
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This is not an isolated case. There are many. In 2007,
the Province of Ontario, Canada, established an inquiry into
pediatric forensic pathology, focusing on cases attributed to
abuse and Shaken Baby Syndrome by Dr. Charles Smith over a
period of 20 years. Eighteen months and $8.3 million later, the
1,000 page Goudge Report was issued (available at http://www.
goudgeinquiry.ca/). It found that while Dr. Smith clearly erred,
his errors exemplified grave systemic problems that would
not be solved by Dr. Smith’s removal. Without correction of
systemic failings, the errors will likely recur. Problems with
forensic science and law are not exceptional or confined to a
few “bad apples.” They are systemic.
Coroners v. Medical Examiners
Depending on where you live, a coroner or a medical
examiner will conduct the autopsy. These represent two distinct
systems, as explained below.
The role of coroner dates from 9th or 10th century England,
where coroners (“crowners”) were appointed to protect the
interests of the Crown (king or queen) in criminal proceedings.
Coroners conducted inquests to confirm the identity of the
deceased, determined cause and manner of death, and collected
death taxes. The coroner system came into the United States as
part of British Common Law, upon which the American justice
system is based.
Coroners typically serve a single county. Currently in the
United States, 82% of them are elected and 18% are appointed.
Elected officials must fulfill age and residency requirements, as
well as other qualifications defined by statute. Coroners are not
under the authority of police. To be reelected, however, they
must be responsive to the public. That can make it difficult to
arrive at unpopular decisions in well-publicized criminal cases.
Although some coroners are qualified pathologists with years of
experience, others have no medical qualifications at all.
In 1860, Maryland passed legislation allowing coroners
to require that a physician be present at an inquest. In 1877,
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Massachusetts became the first state to replace coroners with
medical examiners, who must be physicians. Since that time,
there have been repeated efforts to replace all coroner systems
with medical examiner systems.
In 1928, the National Academy of Sciences released a
report, The Coroner and the Medical Examiner, which noted
that the coroner’s office had “conclusively demonstrated its
incapacity to perform the functions customarily required of it.”
The report strongly recommended that the office of coroner
be abolished and the task of determining cause and manner of
death be assigned to medical examiners affiliated with hospitals
and universities. Little changed as a result of that report.
In 1954, the Model Post-Mortem Examinations Act urged
that trained pathologists replace coroners. In its wake, some
states converted to medical examiner systems but many did not.
In 2004, 14 states still had county coroner systems and 11 had
coroner-only systems. Currently, a patchwork of systems exists,
from coroner only to mixed to medical examiner only. About
2,342 separate death investigation jurisdictions exist in the
United States, making reform difficult. Some 36% of America’s
population lives where little or no special training is required of
those who conduct death investigations. Budgets, equipment
and training vary markedly from jurisdiction to jurisdiction.
In the wake of forensic scandals and DNA exonerations,
the U.S. Congress in 2005 authorized the National Academy
of Sciences to conduct an inquiry into forensic science. The
report, Strengthening Forensic Science in the United States: A
Path Forward, was released in 2009. It recommended, among
other things, that all remaining coroner systems be eliminated.
Medical examiners differ from coroners in two ways: (1)
Coroners are elected or appointed, whereas medical examiners
are hired, (2) Coroners need not be physicians, whereas
medical examiners are, by definition. Medical examiners
may be physicians, pathologists or forensic pathologists, with
jurisdiction over a county, district or state. Twenty-two states
have medical examiner systems; 16 of those centralized at
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the state level. 18 states have mixed systems, meaning some
counties have coroners and others have medical examiners.
Unfortunately, most medical examiners are hired and paid
by law enforcement agencies. They consider themselves part
of the prosecution team. Many think their job is to assist
detectives and prosecutors attain convictions. There is pressure
to produce results that please paymasters. Even in the esteemed
FBI lab, there have been scandals. Some of them are detailed in
the book Tainting Evidence.
Challenges Faced by Forensic Doctors
Because they are paid with tax dollars, medicolegal
investigators typically earn much less than other physicians
and may be denied the equipment and training they need to do
the best job of which they are capable. Trained pathologists
are in short supply. Budgets are tight. Openings go unfilled.
Backlogs (cases delayed more than 30 days) shot up 24%
between 2002 and 2005. Many practitioners labor under
impossible caseloads of up to 500 autopsies a year, twice the
number recommended by The National Association of Medical
Examiners (NAME). Said the Galveston County chief medical
examiner, “Justice becomes secondary when too many bodies
come into the morgue every day and when too few people are
doing autopsies.”
Before concluding violent shaking was the cause of death,
an examiner should review the baby’s entire medical history,
test for inborn errors of metabolism and consider all alternate
possibilities. But who has time? Pressure is unrelenting: to
take shortcuts, to exaggerate findings, to get desired results, to
get closure and to move on to the next case before even more
bodies arrive at the morgue and the backlog increases!
There is certainly no time for research. Contracts may
specifically forbid research or testing not absolutely required to
determine cause of death! Even if forensic pathologists were
allowed by their employers to conduct research, permission to
do so would need to be obtained from next of kin.
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Conflicts of Interest
For years and years, government reports have recommended
that the medical examiner system be made independent of law
enforcement, to avoid inherent conflicts of interest. The 2009
report strongly reiterated that recommendation. There should
not, it said, be even an appearance of conflict of interest. “The
best science,” says the report, “is conducted in a scientific
setting as opposed to a law enforcement setting.”
In shaken baby cases, the person conducting the autopsy,
whether coroner or medical examiner, will likely know that the
treating physician diagnosed Shaken Baby Syndrome. As a
result, he might not look for evidence of anything else! He’ll
document all lesions (injuries), establish time of death, form an
opinion as to the cause of death, and attempt to determine the
interval between injury and death. In Margie’s case, the medical
examiner testified there was diffuse axonal injury, although he
had not tested for or observed it! Because it is part of Shaken
Baby Syndrome, he did not see any need to do the test. This is
known as “drylabbing”—reporting results without completing
necessary tests. Some medical examiners have gotten away
with “zipperless” autopsies (not a single incision) because
defense counsel failed to challenge their findings.
Wrote one mother:
I know for a fact that I never shook her or hit her and unless
the symptoms are very latent I don’t think anyone else did
either. My daughter had spina bifida and hydrocephalus,
which in itself can make the brain bleed very easily. She
also had pneumonia, e-coli, had just gotten her chicken pox
shot and had run a fever ever since. The M.E. just says
that it was either acceleration/deceleration or blunt trauma.
They don’t know which. The staining done on her brain did
not show acceleration/ deceleration injuries and she did not
have retinal hemorrhages, just a lot of brain swelling and
some brain bleeding.
What detective or prosecutor would argue with “favorable”
findings? Medical examiners who attribute child deaths to
accidental or natural causes can incur the displeasure of their
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superiors and have sometimes been pressured to “reconsider” if
their findings don’t support the prosecution’s theory. There may
be great pressure not to rule a cause of death “undetermined.”
The 2009 report, Strengthening Forensic Science,
recommended that all public forensic laboratories and facilities
be removed from the administrative control of law enforcement
agencies or prosecutor’s officers, noting that forensic science
practitioners are rarely if ever sanctioned for ethical violations.
The Danger of Bias
We don’t do anyone any favors by becoming biased in our
investigations. —Dr. James Laridson
Research has proven that even the most honest and
conscientious forensic doctors err because of bias that creeps
in unnoticed. The practice of a forensics expert speaking with
police and prosecutors before conducting an autopsy is strongly
discouraged by the National Association of Medical Examiners
(NAME) because it can bias the examiner’s conclusions without
the doctor being aware of it. Pathologists who are aware of
preliminary investigative findings tend not to look for or see
anything inconsistent with the theory of the crime. They find
what they are looking for and do not see anything they don’t
expect to see, even if it’s readily apparent!
A commonly recognized bias is the tendency to avoid
cognitive dissonance. A scientist who becomes invested in
a preliminary conclusion is unable to accept and weigh new
information fairly and will find it very difficult to concede that
an initial hypothesis might have been wrong. There is a bias
toward reaching premature closure. Bias can be extremely
subtle. Typically people affected are not at all aware that their
judgment is being affected.
Ideally, medical examiners would be servants of truth,
independent and free to testify against state claims not
supported by strong science. Instead, they “analyze material
submitted, on all but rare occasions, solely by the prosecution.
They testify almost exclusively on behalf of the prosecution….
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As a result, their impartiality is replaced by a viewpoint highly
colored by prosecutorial bias,” wrote James Starr, a professor of
law and forensic science. There is a fraternity, a “good ole boys’
network” in law enforcement that can be fatal to objectivity.
For science to work properly, it must be subject to vigorous and
critical peer review.
Challenging the Findings of a Coroner or Medical Examiner
Some defense attorneys move to preserve the child’s body
until the conclusion of the trial. The need may arise for a
second autopsy. Because of the pending criminal proceedings, a
motion to prohibit organ donation may be in order. The defense
attorney should request or subpoena all photos, videos, and
bench notes (notes taken at the time of the autopsy). If possible,
defense medical experts should review all available physical
evidence, including radiology reads and histological slides.
Unless an autopsy was conducted or supervised by a
board certified (not just board eligible) forensic pathologist,
the doctor’s qualifications to render an expert opinion can be
challenged. Only a minority of medical examiner / coroner
systems have been certified by the National Association of
Medical Examiners (NAME).
Metabolic Autopsy
A special type of autopsy checks for metabolic disorders.
Request that your attorney move for this type of autopsy.
Hope for the Future?
Strengthening Forensic Science clearly states that judicial
review is not the answer to improving forensic science. It
recommends that tremendous resources be devoted to the task,
in the interest of justice. Specific recommendations include:
national certification for anyone performing medicolegal
autopsies, standardization of protocols, regular proficiency
testing, requirements for reports to be comprehensive, and
judicial certification of forensic methodologies before they
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can be used in court. Time will tell whether any of these
recommendations will be widely adopted.
Utah’s chief medical examiner tried an unusual approach
in one shaken baby case. He posted a summary the case on a
restricted site and asked other medical examiners to weigh in
with their opinions. Eight responded, and all said they believed
three young boys (3 and 4 years old) at the day care could have
caused the fatal injuries. The sitter’s story and the boys’ stories
were consistent. One boy used a doll to demonstrate exactly
what happened. Prosecutors nevertheless charged the sitter with
first degree felony murder. She was, fortunately, acquitted at
trial.
Said one expert who often testifies for the defense, “When
you’re looking at what you can’t say with medical certainty, the
scientific answer is ‘I don’t know.’” Detectives and prosecutors
do not like that answer. Doctors with integrity say it anyway.
As one medical examiner said, “The only way you ever get
something to change is for there to be a crisis, for the media to
get hold of it, and for politicians to be embarrassed.” Media
pressure resulted in the study culminating with Strengthening
Forensic Science, but will pressure persist until necessary
reforms have been made? Time alone will tell.
Note: Strengthening Forensic Science in the United States:
A Path Forward is available to order or to read online free at
http://www.nap.edu/catalog.php?record_id=12589.
C
What Are the Charges?
riminal charges for alleged shaking range from child
abuse to first degree murder. Sentences range from
probation to life without parole and, rarely, death. I am
unaware of any executions that have been carried out as yet
in shaken baby cases that rested solely on “expert” medical
opinion.
Charges that may be filed include the following. Exact
definitions of each vary somewhat according to jurisdiction.
• First degree murder: committed purposely or knowingly,
under circumstances manifesting extreme indifference to the
value of human life
• Second degree murder: intentional killing that is not planned
or premeditated, committed in the heat of passion or caused
by dangerous conduct
• Voluntary manslaughter: unintentional killing without
malice, premeditation or deliberation, committed in the heat
of passion
• Involuntary manslaughter: unintentional killing due to
commission of a lawful act without proper caution or needed
skill
• Criminally negligent homicide: killing caused by
negligence
There are a number of other charges that are sometimes used,
depending on locale.
• First degree reckless homicide
• Felony murder
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• Homicide by child abuse
• Child abuse resulting in death or serious bodily injury
• Capital murder
• Felony aggravated assault
• Felony abuse
• Injury to a child
• Delay in seeking medical help
• Aggravated battery to a child
• Assault of a child resulting in death
• Assault with a deadly weapon (hands)
• Neglect
• Child abuse
Some prosecutors charge everything they can, perhaps
hoping that a defendant will accept a plea bargain if several
charges are dropped. One prominent prosecutor advised: “If
there’s evidence of a prior injury, I think it’s important that we
charge that out. I also frequently will consider charging neglect
as an alternate theory. I frequently charge aggravated child
neglect if there’s any evidence of a delay in seeking medical
care from the insult to when 911 is called or the child is taken to
the hospital.” In other words, throw the book at them!
Generally to prove murder, the prosecution must prove
both the act and the state of mind—intentional, purposeful,
malicious, with a depraved heart, premeditated, or wanton.
Because it is difficult in many cases to prove murderous
intent in Shaken Baby Syndrome cases, some states have
enacted specialized child homicide statutes to ease that burden.
They may eliminate the “intent to kill” so the prosecutor only
needs to prove the perpetrator physically abused the child and
that abuse caused the child’s death. In some states, “capital
murder” is charged when an alleged victim is less than 6 years
old. “Felony murder” with child abuse as the underlying felony,
also eases the burden to prove intent. These special statutes,
enacted for the noble cause of protecting children, may mandate
draconian sentences after a conviction.
G
Grand Jury:
Surely They’ll See the Truth!
rand juries are generally believed to date from 1166,
when England’s King Henry II issued a law requiring
that a group of citizens relay to him accusations of murder,
robbery, larceny and harboring of criminals. Judges at the
time left London at certain times of the year and traveled
a circuit to judge cases (hence the term “circuit court”).
Many accusations were baseless, a waste of the judges’
time. Grand juries were established to screen cases and
decide which were worthy to be brought to trial. Based on
the prosecution’s evidence alone, their task was to decide
whether there was sufficient evidence to proceed to trial.
The grand jury also served as a check and balance to protect
citizens from unjust prosecution. The Fourth Amendment to
the U.S. Constitution guarantees indictment by grand jury, but
the U.S. Supreme Court has ruled that the Due Process Clause
of the Fourteenth Amendment does not require states to use a
grand jury.
Grand juries today are virtually unknown outside the United
States. England abandoned their use in 1933, New Zealand in
1961, and Canada in the 1970s. About half the states in the U.S.
continue to utilize grand juries, but only 22 states require their
use. Grand juries are intended to be both a sword and shield of
justice, a sword to indict those who are likely guilty, a shield to
protect the innocent against wrongful prosecution and publicity.
Grand jury proceedings are secret.
That’s the ideal world. In real life, some 99.5% of cases
heard by grand juries result in indictments. Grand juries have
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been called “rubber stamps” for the prosecution. In 1973,
Supreme Court Justice William Douglas wrote, “It is indeed
common knowledge that the grand jury, having been conceived
as a bulwark between the citizen and the Government, is now a
tool of the Executive.”
Prosecutors must convince a grand jury, composed of
ordinary citizens, that there exists probable cause that the
individual accused committed a crime. If the jury is convinced,
they “true bill” and issue an indictment. If they are not
convinced, they “no true bill” and no charges are filed.
There are two kinds of grand juries. Charging juries
decide whether there is enough evidence to prosecute and
issue indictments. Investigatory juries may call and question
witnesses in order to decide the merits of a case.
Trial juries, also called petit (small) juries, are composed
of 6 or 12 jurors and are convened to decide the facts of a
particular case.
Wrote one father concerning the grand jury proceedings of
their babysitter:
The medical examiner and the detective (who were
convinced the injuries were intentionally inflicted) went
first and took two hours. Our medical expert spoke for 40
minutes after them, then the babysitter’s husband was in
there for 15 minutes. Finally, my wife went in and was
in there for 50 minutes. I’m sure an 8.5-month-pregnant
woman defending the accused was a powerful image.
Since grand jury proceedings are secret, she couldn’t tell
me specifics, but she said they asked her questions for 10
minutes and then she spoke for 40 minutes, reiterating why
we believe our sitter is innocent.
Several minutes after her testimony, I heard laughter from
the grand jury room. The prosecutor came out and said the
grand jury didn’t need to hear from me because my wife
was so thorough. The grand jury had reached a decision.
Our babysitter and friend was “no billed.” The legal
proceedings are over. Her children can come home!
B
Jail or Bail?
ail is cash or a cash equivalent that is given to the court
to allow an arrested person to remain free until trial
while ensuring that she will appear in court when ordered
to do so. If a defendant meets all conditions and appears
in court when summoned, bail is refunded after the case
concludes. Otherwise, bail is forfeited and a warrant is
issued for arrest.
Depending on the situation, a person suspected of shaking
a baby might be arrested or simply asked to show up in court.
The Fifth Amendment guarantees that a person cannot be
deprived of “life, liberty or property, without due process of
law.” Shortly after arrest, you will appear before a judge, who
will set or deny bail. Prosecutors typically argue for high bail
(up to millions of dollars) and defense attorneys argue for a
reduction.
The Eighth Amendment states: “Excessive bail shall not
be required.” What’s “excessive” is a matter of interpretation.
When the allegation is murder, bail may even be denied. Bail
set for the purpose of preventative detention is thought by
many to violate the Constitution, but the Supreme Court has
not decided the issue. Rarely in shaken baby cases, a defendant
may be released “on her own recognizance” meaning she agrees
to appear when required and the judge trusts her to do so.
The amount of bail is determined by weighing the following
factors:
1. The risk of the defendant fleeing. A long-time resident of a
community with a solid family and a job is not likely to flee.
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2. The type of crime alleged. This alone accounts for the
huge bail amounts in some SBS cases, up to $5 million.
In murder cases, statutes may require a suspect to be held
without bail until trial.
3. The dangerousness of the suspect. If this is a person’s first
criminal charge, it is less likely she will commit another
crime if released on bail than if she is a habitual offender.
4. The safety of the community. Generally, bail conditions
state that the defendant in a shaken baby case cannot be
allowed to care for or be alone with children while on bail.
Bond
If a defendant cannot afford to pay the bail (which will be
refunded upon completion of the case), she may have the option
of buying a bail bond for 10% of the bail. Either the court
accepts 10% of the bail, nonrefundable, or a bail bondsman
agrees to pay the full bail if the defendant does not appear. This
may seem like a good deal, but the 10% is nonrefundable, gone
forever. A bail bondsman may require additional collateral
(financial interest in property, for example), which he will claim
if the defendant fails to appear in court as required. Judges may
specify “cash only” bail, meaning bond will not be accepted.
Bail Conditions
The judge will generally specify bail conditions, which may
include such things as:
1. Being in the presence of a “third party custodian” at all
times. This person is responsible to report to the court
immediately if the suspect flees or violates bail conditions.
2. Not caring for or being in the presence of children under a
certain age, perhaps excepting one’s own.
3. Electronic monitoring (such as an “ankle bracelet”).
4. Restrictions on travel.
5. Curfews, after which the person must be at home.
6. For sitters, no contact with the baby or his parents.
7. No drugs or alcohol.
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Violation of any bail condition may result in forfeiture of
money posted for bail and lead to arrest and incarceration.
Your attorney might be able to get bail conditions changed
after some time passes if you regularly show up at court for
hearings. In Margie’s case, she was first prohibited to travel
out of the city. Later she was allowed to travel within the state.
Other conditions were also gradually lightened. Things became
easier over time.
In 1966, the United States Congress passed the Bail Reform
Act, which stated that capital offenders and people awaiting
sentencing were to be released unless the judge had reason
to believe that no condition would ensure their appearance in
court again. This resulted in some dangerous criminals being
released on bail who then committed additional crimes. The
Act also set out instances where suspects could be denied
bail, which included crimes punishable by the death penalty
or life imprisonment. The 1966 Act created a presumption for
releasing a suspect with as little burden as necessary to ensure
her appearance at trial.
All fine and good, on paper. The reality can be quite
different.
If you cannot afford the full amount of bail, and the bond
amount is high, it might be advisable to stay in jail and use
your funds to hire a good attorney and medical experts. That
is a difficult decision to make, but some have made it without
regret. If your bail is $1 million, bond would be $100,000,
gone forever. That money would go a long way toward a good
defense.
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False Accusations Are Costly
Although the highest price of a miscarriage of justice is borne by the
wrongly accused person, every member of society pays.
It costs $100,000 to build a prison cell—$200,000 over 25 years to
pay off the construction debt. The average cost of incarceration for a
year in a federal prison is about $30,000 per prisoner, the approximate
tax burden of four families. Using that figure, taxpayers paid about $93
million for the 3,096 years spent in prison by 245 people who were later
exonerated by DNA, people who were utterly innocent of the crime for
which they were convicted.
That’s for incarceration alone. Taxpayers also paid for police
investigators, forensic scientists, prosecutors, public defenders, judges,
court buildings, appeals courts, on and on and on. And that’s not to
mention public support of families bankrupted and left destitute. Or
compensation rightly paid to people who have been exonerated. Or lost
productivity. Or the cost of repairing so many shattered lives.
Doctors and others who complain that tests to rule out “rare”
alternatives to Shaken Baby Syndrome are expensive and time
consuming fail to take into account the much greater cost of wrongful
prosecution, conviction, and incarceration.
The government has a solemn responsibility to get this right. Not
only because they are responsible for spending public money, but
because people must have a degree of trust in the agencies and people
who are in authority or American society will not function properly
.
Overdiagnosing abuse seriously undermines trust. “Trust,” wrote
Sissela Bok in the book Lying: Moral Choice in Public and Private Life,
“is a social good to be protected just as much as the air we breathe or the
water we drink. When it is damaged, the community as a whole suffers;
and when it is destroyed, societies falter and collapse.”
• Parents lose trust in their own judgment and fear leaving the baby
with anyone.
• People who know the risks will refuse to baby sit.
• Parents lose trust in doctors. “I hate to say it,” said one mother, “but
I probably wouldn’t take a child to Children’s Hospital ever again.”
• People lose trust in the justice system to achieve justice.
This is total system failure. We’re not talking about some procedural
due process matter, some matter of unfairness in the way the trial was
conducted. We’re talking about people who are actually innocent.
And that has to command our respect and attention! —Barry Scheck
Plea Bargaining: Let’s Make a Deal
Do not plea bargain, plead nolo contendere, no contest, accept
an Alford plea, or consent to dependency in juvenile-family
court. —Dean Tong in Elusive Innocence
W
hile I do not completely agree with Dean Tong, he
has good reasons for that advice.
Most Americans get their understanding of how the criminal
justice system works from watching television. Crime shows
and courtroom dramas are very popular.
In reality, only about 5% of criminal cases go to trial.
Factual guilt is rarely at issue. Most disputes concern
self‑defense, consent, or state of mind. Juries are rarely called
on to decide “Who did it?” or “What happened?” A disturbing
number of this special subset of cases, unfortunately, end in
wrongful convictions.
Few jurors realize that more than 95% of felony convictions
in the United States are the result of plea bargains!
What is a plea bargain? It is an agreement in a criminal case
between the prosecutor and the accused, wherein the prosecutor
agrees to lower the charge or recommend a reduced sentence
and the accused agrees to plead guilty. Note that the prosecutor
only recommends a reduced sentence. The judge generally
makes the decision and is not bound by a prosecutor’s promise.
Trial by jury is guaranteed by the Sixth Amendment of the
United States Constitution: “In all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial, by
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an impartial jury of the State and district wherein the crime
shall have been committed.” It was important to the Founding
Fathers that courts rightly distinguish between the guilty and
the innocent, and that individual citizens be safeguarded against
government coercion. Plea bargaining short circuits the system.
It reduces the per-case workload for prosecutors, which means
the State can charge and convict more people for less money.
Some people claim plea bargaining is actually unconstitutional.
The criminal justice system today depends for its very
survival on plea bargaining. Texas Judge Caprice Cosper said,
“The system would collapse if every case that was filed in the
criminal justice system were to be set for trial. The system
would just entirely collapse.”
Unfortunately, lawyers who expect you to plea bargain may
not bother to adequately prepare for trial. Let your attorney
know up front that you don’t intend to plea bargain because
you are innocent. Saying you don’t intend to doesn’t mean you
won’t choose to do so later on. It does, however, put the lawyer
on notice that he should prepare for trial.
The History of Plea Bargaining
The first plea bargains were for victimless crimes, such as
selling liquor, during the 1700s and early 1800s in Middlesex
County, New Jersey. In 1800, criminal cases elsewhere
invariably went to trial, but by 1840 that changed and plea
bargaining became common. A defendant who insisted on a
trial would see his court costs double.
Legislators were at first alarmed. The prosecutor explained
to them that he had invented a type of “probation” that allowed
criminals to pay their fines, mend their ways, and promise not
to commit crimes in the future. The legislators were convinced
and thereafter had only praise for the system.
In 1844, “a grave charge of official misconduct” was
leveled against a District Attorney in Massachusetts for not
trying indictments. An investigation was launched and the
prosecutor was absolved of all wrongdoing. “Plea bargaining,”
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the investigators wrote, tended “more than any other course…to
attain the just end of all punishment.”
In the 1800s, the mandatory penalty for homicide was death.
Defendants welcomed plea bargaining because, guilty or not, by
waiving their right to a jury trial, they could avoid execution.
In 1866, rules of evidence changed, allowing defendants to
testify in their own defense. This had the unfortunate side-effect
of causing jurors to expect testimony from all accused persons.
Guilt was otherwise inferred. The number of defendants who
agreed to plea bargain rose quickly, to 87% by 1900. The trial
penalty also rose. A person who insisted on a trial would, on
average, receive three times as harsh a sentence if convicted.
Plea bargaining had become normal in criminal courts by
the 20th century. Why? Caseloads! There were too many
cases and too few prosecutors and judges. Initially, increased
caseloads were due to increased population unmatched by
increased funding. When plea bargaining became the norm,
however, there was little incentive for anyone in the system to
argue for more money to pay for jury trials.
The Supreme Court sanctioned plea bargaining as an
essential and desirable part of the criminal justice system
in Santobello v. New York (1971). Benefits, said the Court,
included the relief of court congestion and alleviation of the
risks and uncertainties of trial. The justification was practical,
having nothing to do with justice or the Constitution.
In 1978, the Supreme Court decided another case,
Bordenkircher v. Hayes. The defendant in a criminal case was
offered 2-10 years for a plea bargain versus life if he went
to trial. He insisted on exercising his right to trial. He was
convicted and sentenced to life. His argument to the Supreme
Court was that the prosecutor had behaved in a coercive manner.
In a close vote, 5-4, the Court said there had been no coercion.
It ruled that there is “no element of punishment or retaliation so
long as the accused is free to accept or reject the prosecution’s
offer.” If you plead guilty in order to avoid an infinitely harsher
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penalty if convicted, that is officially a “voluntary” plea. Said
one observer, “Plea bargaining rests on the constitutional fiction
that our government does not retaliate against individuals who
wish to exercise their right to trial by jury.”
Penalty for Going to Trial
According to Chief Judge William G. Young of the Federal
District Court in Massachusetts,
Evidence of sentencing disparity visited on those who
exercise their Sixth Amendment right to trial by jury is
today stark, brutal, and incontrovertible…. Today, under
the Sentencing Guidelines regime with its vast shift of
power to the Executive, that disparity has widened to an
incredible 500%. As a practical matter this means, as
between two similarly situated defendants, that if the one
who pleads and cooperates gets a 4-year sentence, then
the guideline sentence for the one who exercises his right
to trial by jury and is convicted will be 20 years. Not
surprisingly, such a disparity imposes an extraordinary
burden on the free exercise of the right to an adjudication
of guilt by one’s peers. Criminal trial rates in the United
States and in this District are plummeting due to the simple
fact that today we punish people—punish them severely—
simply for going to trial. It is the sheerest sophistry to
pretend otherwise.
A few jurisdictions, including Ventura County, California,
have prohibited plea bargaining. Proponents of the change
report that responsibility has returned to the system. Police do
a better job of investigating, prosecutors and lawyers do a better
job of preparing, judges spend more time in court and work
more efficiently, and criminals get the message that they can no
longer manipulate the system. Justice and due process are again
regarded as more important than expediency.
Types of Plea Bargains
There are two types of plea bargains:
1. Charge bargaining. The prosecutor “throws the book at” a
defendant by charging every possible crime at the highest
level possible. He then offers to drop charges in exchange
for a guilty plea to the most important charge. This might
be compared to haggling over the price of a car. The vendor
asks far more than he really wants, you offer less than
you’re willing to pay, and somewhere in the middle, an
agreement is reached.
2. Sentence bargaining. The judge has a larger role in this type
of bargain, as prosecutors can only recommend a lighter
sentence. Judges have the power to reject the prosecutor’s
recommendation. People have pled guilty with a sentence
bargain and ended up with the same sentence they would
have received if convicted!
Why Innocent People Accept Plea Bargains
Most of us like to think we’d never plead guilty to
something we didn’t do. But given a choice between 4 years of
probation or 10-99 years if convicted, it’s hard to resist! When
the stakes are high enough, virtually anyone will plead. A plea
bargain is like insurance. You trade the uncertainty of a long
sentence for the certainty of a short one. Even if you’re 100%
innocent, it can make good sense.
Justice is the casualty. Plea bargaining bestows “lenient
treatment on the guilty” and “coercive treatment on the
innocent.” For the truly guilty, plea bargaining is an easy
out. Criminals who plead invariably receive lighter sentences
than those convicted at trial. If a person is truly innocent, plea
bargaining seals off the possibility of future vindication or
exoneration. When you plead in court, you may be asked, “Are
you pleading guilty because you are guilty, and for no other
reason?” You must answer yes. You must lie, commit perjury.
What some defendants have said in favor of plea bargaining:
• I don’t regret it. I didn’t do anything, but if I was found
guilty, I would never see the light for a long, long time.
• When you have a choice between walking out or going to
prison for life, there’s really no contest.
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• It was the scary thought of not knowing what was going to
happen to you after you put your life in 12 people’s hands.
• I didn’t want to miss any more time with my children. It
was the only thing I felt I could do. And justice wasn’t
served.
• I refused to plea. I believed that justice would be served at
trial. Unfortunately, it was not. Knowing what I know now,
I would have pled into something, even if it wasn’t the truth,
just to get on with life for my family and children. Our life
has been at a standstill for so long.
• I just don’t have the strength to fight anymore. I just want
this to be over.
• My father said if I was convicted, he would be dead before I
got out.
Those who lose their gamble at trial are used as examples to
instill fear in others being pressured to bargain. According to
Stephen Schulhofer, a Professor of Law at New York University,
Innocent people are convicted at trial. … People who
defend plea bargaining will say, ‘Well, sending people to
trial doesn’t necessarily guarantee perfect results.’ But
what the guilty plea system guarantees is that when you
have miscarriages of justice, the victim is going to face
staggering sentences because those sentences are not a
consequence of justice. Those sentences are a consequence
of the need to grease the wheels of the system, so they
become an example. They become the grease. They
become the object lesson and what we see the next time
around is the prosecutor says, “Yes, you can go to trial.
That’s your right. And you can be just like Mrs. So-and-So.
Look what happened to her.”
In 1999, in Texas, 17-year-old Brandy Briggs pled guilty
on the advice of her attorney, who told her she’d probably just
get probation. Desperate to go home to her other son, she took
his advice. She was sentenced to 17 years. After five years in
prison, a new medical examiner reviewed the case and changed
the autopsy results from “homicide” to “undetermined” because
there was no evidence of shaking. Brandy requested a new
trial but the judge said the new evidence was insufficient to
exonerate her and, after all, she had pled guilty! The Texas
Court of Criminal Appeals ultimately threw out the conviction.
Why Innocent People Refuse to Plea Bargain
Here are some reasons people say they refused to plea
bargain:
• Precious minutes are being stolen from us. I am weary
from fighting. But I refuse to give in. Our son may not
understand but our daughter does. What would we say to
her if we gave up?
• I’d rather go to prison than plead guilty to crimes I didn’t
commit.
• I knew one day I was going to have to die and I didn’t want
to go tell God I said something I didn’t do.
• Even though I knew I could get a minimum of 20 years, I
wouldn’t consider a plea. I knew the truth would eventually
come out, and my thinking was why should I ever say I did
something I didn’t do? What kind of example would that
have been for my children?
• I know who I am and I’m staying true to who I am.
• In my heart I just couldn’t do it. In my conscience and in
my heart. It’s just morally wrong to say you did something
you didn’t do. I couldn’t live with myself if I did that. I just
couldn’t live with myself.
There are additional considerations you may not be aware
of. Check with your attorney to see what privileges are denied
to convicted felons in your state.
• If you accept a plea bargain, you will be considered and
treated as an abuser by the Court and CPS.
• You will never have a chance to prove your innocence.
• Your parental rights may be terminated.
• You may not be allowed to live with your children or have
contact with them.
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• You waive your right to appeal.
• You may lose your right to vote.
• You lose your right to serve on a jury.
• You lose your right to own a firearm.
• You forfeit your right to hold public office.
• You may lose your right to public housing.
• You may be deported if you are not a United States citizen.
• If sexual abuse is alleged, you may be required to register as
a sex offender and be on that list for the rest of your life.
• As a convicted felon, you will have difficulty getting work,
procuring loans, or renting.
• You will give up the possibility of someday receiving
compensation for a wrongful conviction.
One young man was offered a very generous plea bargain,
contingent on his telling authorities exactly what happened. The
problem was, he had already told them exactly what happened
and they didn’t believe him. In order to take the plea, he would
be forced not just to say “I did it,” but to fabricate an elaborate
story that they would accept as believable! He refused to plead
and was convicted.
Alternative Plea Bargains
Alternative types of plea bargains may or may not be
available in your jurisdiction. Ask your attorney what your state
allows.
An Alford Plea, also called a “best-interest” plea, allows a
defendant to maintain innocence while admitting that sufficient
evidence exists to persuade a judge or jury to convict. You
waive your right to trial and accept the imposition of a prison
sentence without admitting participation in a crime because you
consider that course of action to be in your best interest. The
court declares you guilty while you maintain you are innocent.
It stems from a 1970 U.S. Supreme Court decision, North
Carolina v. Alford. Said the Court, “The Constitution does
not bar imposition of a prison sentence upon an accused who
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is unwilling expressly to admit his guilt but who, faced with
grim alternatives, is willing to waive his trial and accept his
sentence.” Most prosecutors do not accept Alford pleas, though
they are becoming more common. The Supreme Court ruled,
“States may bar their courts from accepting guilty pleas from
any defendants who assert their innocence.”
Remember that the authorities are not bound to honor the
terms of any plea agreement. An Alabama day care owner took
a “best interest plea” in 2007. “My attorney kept telling me
that since I had no priors, he thought I would get probation if
I pleaded guilty. I didn’t know what a ‘best interest’ plea was.
All I want is a trial. I want a chance to prove I’m not guilty.”
She plea bargained and was sentenced to 15 years. The judge
said, “Under the law, you can’t appeal a guilty plea. The court
can decide to set aside a guilty plea, that’s all.”
A Sery Plea, available in Utah, is a conditional guilty plea
that does allow for appeal. Most states have no such provision.
What to Do?
In an interesting case in Oregon, a father was charged with
felony murder, carrying a minimum penalty of 25 years. Jurors
sat through three days of testimony by a prosecution expert
talking about Shaken Baby Syndrome. After the prosecution
wrapped up its case, the defendant accepted a plea bargain to
second-degree manslaughter, with a sentence of six years.
The jurors were shocked! They had been leaning toward
acquittal. They contacted the defense lawyers, researched
the medical literature, and visited the defendant in jail before
asking the judge to withdraw the plea. Eventually the judge did
withdraw the plea.
The defendant was reluctant to risk a new trial so agreed to a
different plea bargain and a four-year sentence in a safer facility.
Who would have thought that could happen?
If the prosecutor offers you a generous plea bargain, it
may indicate that she does not believe she has as strong a
case as she would like. Your attorney is your best source of
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advice, although he can’t tell the future any more than you
can. Sometimes you just have to make the best decision you
can with the information you have after carefully weighing the
alternatives.
Frontline, in a special report The Plea, reported that a guilty
plea “puts a lid on the box regardless of what’s in the box.” It
keeps the truth from coming out. A plea bargain has nothing
to do with justice. It has everything to do with convenience,
expediency, making the life of prosecutors and defense attorneys
easier and more profitable. It’s designed to avoid finding out the
truth. It’s designed to avoid hearing the defendant’s side of the
story.
What Did Happen?
Common Defense Theories
It doesn’t matter what else happened. This kid was shaken.
That’s it! —Dr. William Brooks
S
haken Baby Syndrome cases are difficult to defend. The
burden of proof nearly always shifts to the defendant to
explain what did cause the baby’s death. Proving alternate
causation may not be possible. The defendant may not
know. That’s why she brought the baby to the doctor in the
first place, to find out what was wrong. Defendants are not
doctors and can’t explore alternate diagnoses.
Prosecutors complain that defense experts “seize on the
absence of retinal hemorrhages in the child” to distract the jury,
and “widen the time line to bring in more people who might
have been responsible.” The possibility that a defendant may be
innocent is rarely if ever considered!
There are basically only four defenses to an unjust accusation:
1. The injury was accidental.
2. Someone else inflicted the injuries.
3. Shaken Baby Syndrome theory is flawed.
4. The symptoms were due to a different medical condition.
Any one of these should provide enough reasonable doubt
to result in an acquittal, but child abuse is considered so heinous
that emotions are ignited in jurors, and prosecutors only have
to pour on the fuel. Unless an alternate explanation is proved
beyond a reasonable doubt, jurors may convict.
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Because reasonable doubt almost never suffices for
acquittal, defense attorneys need to find medical experts to
review all the baby’s health records. Sometimes the defense
can hire a medical examiner from a different jurisdiction to
review the autopsy, for example. What, aside from abuse, could
explain the baby’s collapse or death?
In the Louise Woodward case, defense attorneys argued that
an older, chronic subdural hematoma had rebled as a result of
a relatively minor fall or injury. If you scrape yourself and a
scab forms, then you scrape yourself again but not as hard, the
wound can rebleed. This defense has sometimes been used to
cast doubt on who might have been the original perpetrator.
Accidental Injury (Challenge mechanism of injury)
Many children who present with the symptoms attributed
to Shaken Baby Syndrome have fallen. According to SBS
theory, household falls cannot kill. To counter this argument,
biomechanical experts may be necessary. See the information
on pp. 173-177.
SBS Doesn’t Exist (Challenge the theory itself)
Many defense attorneys have challenged the theory itself,
sometimes successfully. Each symptom can have multiple
causes, but the theory says retinal hemorrhages in particular
indicate abuse and three symptoms together cannot occur from
any cause other than abuse. Some defense teams have focused
on the fact that the baby’s neck showed no damage whatever, so
how could he have been violently shaken as alleged? Defense
experts will testify that in the absence of neck injuries, violent
shaking cannot be assumed.
One lawyer stated that it is the position of the National
Association of Criminal Defense Lawyers (NACDL) that there
is “no such thing as Shaken Baby Syndrome.” See pp. 33-44 for
more information on the weaknesses of the theory itself.
Different Perpetrator (Challenge timing)
Prosecutors sarcastically refer to this as the TODDI defense,
“The other dude did it.”
Can there be delayed collapse in cases of fatal head injury?
The theory says no. See pp. 178-184 for more information.
Can another child cause a baby’s death? The theory says no.
Never mind that children are known to have caused the deaths
of infants! In 2008, a 10-month-old baby was killed when a 7year-old girl threw her to the floor at least twice. She sustained
a skull fracture. The 20-year-old daughter of the day care
owner was upstairs at the time and when she returned the baby
was unconscious and not breathing. Police investigated and
determined that all evidence supported the 7-year-old’s detailed
account of what happened.
Rarely is anyone other than the last person with a child
closely questioned with the thought that he or she might be
lying. Regardless of the background or character of a previous
caretaker, the focus immediately goes to the person who first
noticed severe symptoms. Even when both new and old injuries
exist, the old injuries may be “timed to fit” the chosen suspect.
“The death,” said one prosecutor confidently, “was caused by
his most recent injuries, not any he may have sustained earlier.”
Alternate Medical Condition (Challenge traumatic origin)
Why are there no external injuries? Alternate medical
conditions include inborn errors of metabolism, reactions to
vaccinations, vitamin deficiencies, infections, allergies and
environmental toxins. See pp. 185-196 for more information.
The Use of Statistics
Prosecution experts will often use words like, “most likely”,
“consistent with” and “probably.” They use statistics to show
that the chance of the cause being anything other than shaking
is vanishingly small. Such statistics are based on speculation.
How does anyone know how many people have “rare”
conditions unless somebody bothers to check for them? They
may not be as “rare” as currently believed and the only way to
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find out is to do some tests! Statistics also refer to the general
population, not to the subset of the population that displays
particular symptoms. A child who presents with the symptoms
of glutaric aciduria type 1, for example, is much more likely to
have that condition than an asymptomatic child.
Statistics are absolutely irrelevant in any particular case. If
just one in a million children die from short falls or aneurysms,
how can anyone be certain it’s not this child? Investigation into
possible abuse should be conducted, but with an open mind,
with the possibility present in the investigator’s mind that this
particular case might not be abuse.
Prosecution Theory Doesn’t Make Sense
In one case, a sitter, aged 44, was only 5 feet tall and
weighed 115 pounds. The defense argued that she was
physically incapable of shaking a 25-pound baby as alleged,
three or four times a second for maybe nine seconds.
The defense urged jurors to consider all the evidence
investigators chose to ignore, including the fact that the baby
had sickle cell anemia, which could cause or contribute to the
baby’s symptoms. The jurors instead convicted the sitter of first
degree murder. She was sentenced to 32 years in prison.
In another case, a mother dropped her child off at day care
just 14 minutes before the sitter called 911 to report that a
different child had stopped breathing. That mother testified that
everything was normal and calm in the household at that time.
The defense argued that it was extremely unlikely that a veteran
sitter, a retired nurse, could become so upset and out-of-control
that she violently shook an infant who couldn’t have been
crying for long, if at all!
Simple Falls Aren’t Always Simple
O
n March 16, 2009, actress Natasha Richardson fell
and hit her head while taking a ski lesson on a bunny
slope in Quebec. Paramedics and an ambulance responded
but left after she said she thought she was OK. About three
hours later, she complained of a headache and was taken to
the hospital. Two days later, she was dead.
According to Shaken Baby Syndrome theory, young
children cannot sustain fatal injuries from short falls. Said Rob
Parrish, former director of the National Center on Shaken Baby
Syndrome, “One of the most common insufficient explanations
of a baby suffering from severe inflicted head trauma is that
the baby fell from a couch. In fact, this explanation has been
heard so much in Shaken Baby Syndrome cases that legal and
other professionals jokingly refer to it as the killer couch. The
fact is, children do NOT suffer subdural hematomas or other
life threatening injuries from falling off beds, couches, or other
relatively short distances.”
To many doctors, the story of a short fall alone is diagnostic
of abuse. “Children do not die from falling down,” said one
prosecutor. “If that was the case, none of us would have made it
past the age of two.”
In 1989, Hall et al. published an article entitled “The
Mortality of Childhood Falls” in which two fatal short falls
that occurred under medical observation were reported. The
authors concluded that “minor” falls can be lethal, especially in
toddlers, and suggested that very young children are more likely
to die from a fall than older children.
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In a 1991 article, “Death from Falls in Children: How Far
is Fatal?” Dr. David Chadwick reported that children must
fall at least 15 feet to sustain life-threatening injuries. In his
expert opinion, the chance that a child would die from a short
fall is less than one in a million. A different researcher, R. A.
Williams, reviewed 398 consecutive victims of falls treated at
Children’s Hospital in Oakland. In 106 of the cases, the falls
were witnessed and corroborated. Seven children in this series
who fell more than ten feet had no injuries at all! The only
fatality was from a 70-foot fall. His conclusion was that infants
and small children are resistant to injuries from short falls, and
falls less than 10 feet are unlikely to produce serious injuries.
Dr. John Plunkett questioned these findings and in
2001 published “Fatal Pediatric Head Injuries Caused by
Short-Distance Falls.” One fall had been videotaped by the
grandmother of a 23-month-old girl who fell 28” off a jungle
gym onto concrete and subsequently died. The parents were
suspected of abuse until the videotape proved the cause of
injury. Admitted one prosecution expert later, “Of course short
falls can cause death, but only when videotaped.”
Here is a list of other cases of puzzling deaths after short
falls or seemingly minor bumps to the head:
• 1991 Roanoke, Virginia—A nurse working in the intensive
care nursery took an infant from her crib and placed her on
a scale on a nearby table. While the nurse was changing
the linens in the crib, the baby fell about three feet from the
scale to a tile floor. She suffered serious and permanent
head injuries from the fall and subsequently died.
• 2000 Miami, Florida—Two boys, 8 and 11, wanted to make
twin babies laugh by jumping on a queen-sized bed where
the infants were lying. The babies bounced off the bed.
One died and the other suffered severe head injuries.
• 2002 Chicago, Illinois—A 10-year-old girl playing football
in a Chicago suburb collapsed near the end of no-contact
drills after complaining of a headache. She was wearing
a helmet. No one remembered anything that could have
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caused the subdural hematoma found at autopsy. Dr. Hunt
Batjer said a subdural hematoma can go undetected for
days and be triggered by a relatively minor incident. “A
hard blow earlier in the week could have made the brain
vulnerable to even a minor whiplash,” he suggested.
“Sometimes if you get injured, even hitting your head after
falling from a bike, you can recover and suddenly it hits you
days, perhaps weeks, later.”
• 2007 Castle Rock, Washington—At a birthday party at
Hoppin’ Houses, two adults were playing with children,
bouncing and jumping on big inflatable toys. The adults
fell onto one child, who hit his head on the floor and died
instantly of massive head trauma.
• 2008 Eugene, Oregon—A boy fell and hit his abdomen on
the handlebars of a four-wheeled, bicycle-type toy. Initially
he seemed fine, but his color suddenly began to change. He
was dead by the time he reached the hospital. All findings
matched the account given by the day care provider and no
charges were filed.
• 2009 Cheshire, England—A father, carrying his 2-year-old
son, tripped over a wooden post and fell. Paramedics were
called and determined that the injuries were superficial. The
baby was fully alert but quiet and somewhat lethargic. He
seemed fine. Eight hours later, he was found unconscious.
The parents were initially suspected of murder but the
coroner cleared them.
• 2009 Madison, Wisconsin—Less than a month after
Natasha Richardson’s death, a 2-year-old girl fell down
a few stairs at home. Her mother calmed her and put her
down for a nap. She returned to check on the baby and
found her unresponsive. The mother raced the child to
the hospital where doctors were able to save her life. As
the baby was rushed into the operating room, the mother
collapsed in shock. “She just fell down two steps! It was
just two steps! I was right there!” Parents were warned in
the article that there can be a lag of up to eight hours before
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serious symptoms are apparent. Surgeons call it “the golden
hour.” Yet parents and caretakers reporting similar incidents
have been accused and convicted of murder.
• 1996 Roseville, Ohio—A 4-year-old girl fell down stairs,
lost consciousness and died. The coroner first called the
death accidental, then under pressure from other doctors,
revised his opinion. He told the jury, “Children don’t
fall short distances and hurt themselves lethally.” The
stepmother was convicted. The conviction was overturned
on a technicality and the second trial resulted in an acquittal.
• 1996 Los Angeles, California—An 18-month-old twin
slipped on rain-slick concrete, hitting the back of his head.
He did not appear to be seriously injured but was found
unconscious four hours later. The medical examiner ruled
the cause of death undetermined. Some months later, a
different ME ruled the death a homicide, Shaken Baby
Syndrome. The mother spent seven months in custody
on a murder charge. Two defense experts independently
reviewed the medical records and convinced prosecutors to
drop the charges.
• 2001 Wichita Falls, Texas—A 7-month-old was being
carried by the mother’s boyfriend. He tripped on a shoelace.
The baby’s head hit the kitchen floor, concrete covered with
tile. The child was rushed to the emergency room, where
doctors said there were no fractures and the baby was fine.
The next day, the baby wasn’t himself. Two days later, he
had a seizure and died. Doctors concluded the collapse
had nothing whatever to do with the fall. “Somebody
in the family killed this child. The evidence is clear and
convincing.” The defendant took a plea bargain for 10 years
probation.
A single indisputable case of a short fall leading to serious
injury or death should end forever the assertion in court that
children never sustain fatal injuries from short falls. Rare does
not mean impossible. Seldom are there multiple, disinterested
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witnesses to household falls. Friends or relatives are discounted
as witnesses unless they say what investigators expect to hear.
While it is true that short falls rarely cause death, there are
things doctors don’t yet know. Could multiple similar falls have
a compounding effect, with the first blow increasing the brain’s
vulnerability to subsequent falls? No one knows for sure. No
studies have been done.
In Margie’s case, the baby had been pulling himself up and
falling backwards onto his head for several days. When his
thick hair was shaved off at autopsy, bruises of varying ages
were found. Could injuries be more or less serious depending
on how a child lands rather than how far he falls? Could some
children be more vulnerable to falls than others for reasons as
yet unknown?
Much remains to be learned. But one thing should be clear.
Juries should not be told that children never die from short falls.
Nor should prosecutors be allowed to make statements like this
one: “It just couldn’t happen the way the defendant says—not
unless the laws of physics and gravity are different in the
defendant’s house. These doctors tell us that the defendant is a
liar. A defendant who lies to protect himself points the finger of
guilt upon himself.”
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I
A Matter of Timing
n a criminal case, the prosecution must prove not only
that a crime occurred, but who committed it. SBS theory
provides easy answers to both questions. Certain medical
symptoms (retinal hemorrhage, subdural hematoma,
cerebral edema) prove that the crime of violent manual
shaking occurred, according to the theory. Timing proves
who did it. Expert witnesses must testify as to their
opinions on timing in order to eliminate reasonable doubt
as to who is responsible for the assault. Prosecutors push
doctors for degrees of accuracy that are not scientifically
possible, and bemoan the fact that clinicians and
pathologists may equivocate about the timing of the lethal
event. Doctors who testify with confidence about timing
are greatly preferred, despite the fact that their opinions do
not rest on any solid scientific foundation.
According to the National Center for Shaken Baby
Syndrome, “Symptoms consistent with Shaken Baby
Syndrome, including unconsciousness caused by swelling and
bleeding around the brain, are instant and cannot be caused by
accident.” Some doctors testify that diffuse axonal injury (DAI)
indisputably proves that a child could not have been conscious
after injury. Others estimate timing according to the contents
of a baby’s stomach, which indicate when he last swallowed or
ate. Detectives ask questions during their interviews to try to
determine when a child was last “fine.”
It is well known that adults who experience relatively mild
head injuries can “talk and die.” Like Natasha Richardson, they
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experience a “lucid interval” during which no one realizes they
have been seriously injured. In shaken baby cases, however, the
person charged is almost always the individual who was caring
for the child when severe symptoms first became evident, even
if the child had been under the care of that person for only a few
minutes!
According to SBS theory, there is no lucid interval when a
baby has been fatally shaken, as illustrated by the statements
below, a few of hundreds that have been spoken by expert
medical witnesses for the prosecution.
• The onset of symptoms is virtually contemporaneous with
the abusive act.
• When children have suffered serious or potentially fatal
head injuries, they will experience symptoms almost
immediately after injury.
• The injury happened at the time the level of consciousness
changed. When you fall off a building, when do you get
knocked out?
• There is no lucid interval.
• Severe head trauma in infants produces immediate
symptoms.
• Lethal injuries produce progressively more severe symptoms
almost immediately.
• The head injuries of SBS result in immediate symptoms.
Based on assumptions about timing, the person with the child
at the time of collapse can be confidently accused. No further
investigation is required. Slam dunk.
Such statements may reference a 2005 article by Suzanne
Starling entitled “Analysis of perpetrator admissions to inflicted
brain injury in children.” The article reported that in 91% of 57
confessions, symptoms appeared immediately after the abuse.
That leaves 9% with delayed symptoms, but who’s counting?
Confessions Indicating Delayed Collapse
Interestingly, there are confessions that indicate delayed
collapse. Even more interestingly, expert opinions on timing
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morph to fit time frames desired by prosecutors. There is no
lucid interval when it fits what accusers want to prove, and there
is a lucid interval when it fits what accusers want to prove! SBS
theory is flexible and can bend to fit. But is that scientific?
Here are a few illustrations of cases where prosecutors
asserted delayed collapse.
On Monday, May 25, 1999, a baby collapsed and was taken
to the hospital where he died. His mother stated that she shook
the baby violently the previous Friday. All three prosecution
experts who testified at trial said that it would be normal for
severe symptoms to appear around 72 hours after the injury, that
babies sometimes show no apparent signs of injury for three or
more days. (I can’t help but wonder what their testimony might
have been had the mother not volunteered a confession.)
In West Virginia, a young man who had previously pled
guilty to manslaughter in the death of an 11-month-old child,
was alone with a different baby for a little over an hour while
the mother shopped. When she got home, the baby appeared
to be fine. Hours later the baby’s great-grandmother noticed
alarming symptoms. At trial, the prosecution expert, a medical
examiner, said, “I would expect it would have taken three to
four hours for definitive symptoms to present themselves.” The
defense expert, ironically, testified that the onset of symptoms
would have been virtually instantaneous!
A mother dropped off her baby at the sitter’s. A little over
an hour later, the babysitter called 911. Normally in a case
like this, the sitter would be charged, but in this case it was the
mother. Said the prosecution expert: “Our assumption is that
it had to have happened within the previous 24 hours. You’re
not going to see this sort of presentation; you won’t see this
extensive of an injury right away. It will take several hours,
certainly within a 24-hour window. It takes some time for that
process to evolve.”
A father dropped a child, who had had a seizure the evening
before, at the babysitter’s. The child soon began to vomit. The
sitter called the mother, who said she was busy and could not
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leave work. As the day went on, the sitter called several more
times. When the parents finally came for the baby at the end
of the day, the sitter urged them to take the baby to a doctor
immediately. They waited 16 additional hours before seeking
medical help. The mother was a social worker and knew
everyone at CPS. She quickly retained a lawyer. The sitter was
accused of shaking the baby. A jury eventually acquitted.
Medical Literature Concerning Delayed Collapse
As SBS theory grew in popularity, the need arose for doctors
to time injuries in order to pinpoint which of a number of
caretakers perpetrated the alleged violent act.
In 1995, Nashelsky and Dix published an article entitled
“The time interval between lethal infant shaking and onset
of symptoms.” In it, the authors wrote, “To our knowledge,
only three cases … provide sufficient historical information to
understand the time course of injury and onset of symptoms.
In two cases, there was onset of symptoms immediately after
shaking. In one case, there was a delay of 4 days between
shaking and onset of seizures although the child had several
episodes of vomiting during the days after shaking.” Then, as
might be expected, they attempt to preserve the theory: “One
wonders whether the infant was reshaken shortly before the
onset of seizure activity.”
A 1997 article by Willman et al. was entitled “Restricting
the time of injury in fatal inflicted head injuries.” The authors’
conclusion: “If a history purports a lucid interval in a fatal
head injury case that does not involve an epidural hematoma,
that history is likely false and the injury is likely inflicted.
The time of most fatal head injury events can be restricted to
the time period after the last confirmed period of wellness for
the child.” How, one wonders, is “wellness” confirmed? If a
previous caretaker says the child was “fine” when placed in the
defendant’s care, can that be believed on its face?
In 1998, an article by M.G.F. Gilliland was entitled “Interval
duration between injury and severe symptoms in nonaccidental
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head trauma in infants and young children.” Her conclusion:
“Enough variability in the interval between injury and the time
of severe symptoms or presentation for medical care in fatally
injured children exists to warrant circumspection in describing
such an interval for investigators or triers of fact. Our data
indicate that the interval is brief (less than 24 hours), in almost
3/4 of cases of head injury death, especially in shaking injuries.
However, in more than 1/4 of the cases, the interval from injury
to the onset of severe symptoms is longer.” Four children in
the series collapsed more than 72 hours after the injury event.
In a 2008 talk, Dr. Gilliland stated clearly: “There are some
individuals that have longer intervals, and the conclusion is that
we really need to do a full investigation in all cases because the
last caregiver may not be responsible.”
There are numerous other studies, dating back decades.
Some children’s brains apparently swell more quickly than
others. In 1981, Derek Bruce et al. reported that: “rapid
neurological deterioration has been well described, beginning
several minutes to several hours following head injury.” 15 of
the children in his series (33%) had a lucid period. J. Berney
et al. wrote in 1994 that babies and toddlers had a much higher
predisposition to subdural hematomas than older children. 1/4
of the children with subdurals had lucid intervals, regardless
of whether the trauma was high or low energy. There are
numerous known incidents of delayed collapse in children.
15-month period. One 3-year-old did not lose consciousness
after falling. He took a nap when he arrived home and was
playful when he awoke. Several hours later he was taken to
the emergency room with posturing and apnea. Although most
children in the study arrived at the emergency room within two
hours, two patients did not show severe symptoms until 3 days
after the injury and one arrived 4 days after.
An article by Denton and Mileusnic in 2004, “Delayed
sudden death in an infant following an accidental fall”, reported
a witnessed fall backwards off a bed onto concrete. The 9month-old baby was independently witnessed as “healthy” for
72 hours after the fall, at which time he was discovered dead in
bed.
Said J. Hume Adams in “Neuropathology of head injuries”,
a chapter from a 1975 textbook: “Diffuse swelling of both
hemispheres has a particular predilection for children; in a
proportion of these cases the original head injury often appears
clinically to have been quite trivial yet 24 to 48 hours later the
conscious level rapidly deteriorates.”
Experiments in which animals have been shaken violently
also demonstrate variation in onset of severe symptoms. The
bottom line is none of the injuries can be individually timed.
Severe symptoms may not manifest for 72 or more hours.
Doctors have no consistent or objective way to determine timing
in a specific case or to pin an abusive act on a particular suspect.
Delayed Deterioration after Accidental Injury
Doctors claim that in cases of abuse, history given by a
suspect is untrustworthy unless it agrees with SBS theory. Of
course, if it does agree with the theory (shaking with immediate
collapse), it is called a “confession” and used to buttress the
theory. To determine whether delayed collapse deserves
consideration in cases of suspected abuse, it might help to
review delays after accidental injuries, when timing is known.
A report entitled “Injuries to children related to shopping
carts” published in 1996 compared 62 children treated in a
The Strange Story of Dr. Robert Huntington III
During the long wait for Margie’s trial, I periodically went
to the medical library to search for new articles that might be
helpful. In March 2002, I found a letter that gave me great
hope. Finally, PROOF that, even in true cases of abuse, the
perpetrator may not be the last person with the child.
Dr. Robert Huntington III of the University of Wisconsin
hospital in Madison reported that around 10:30 on the morning
of September 18, 1999, a baby girl was brought to hospital
with a complaint of vomiting that had lasted for 24 hours. She
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was admitted for observation. Her chart indicates that she
was “fussy and clingy, but interactive and responsive.” More
than 15 hours later, a nurse checking on her noticed decreased
respirations. The baby was rushed to PICU, where she died.
Police were called but the mother and her boyfriend had fled to
Mexico and were not located for more than 9 years.
The baby’s autopsy showed retinal hemorrhages, subdural
hematoma, cerebral edema and diffuse axonal injury. Wrote Dr.
Huntington: “The child did have some symptoms, but clearly
the intracranial injury symptoms, which were confirmed on
repeat computed tomography and autopsy, were delayed for
several hours, during which time she was under our view and
review in the hospital.”
Had it been a babysitter rather than a nurse who discovered
the baby’s severe symptoms, her story as to what happened
would not have been believed and would have been considered
evidence against her. She would likely have been accused of
murder, tried, convicted and imprisoned, for decades, leaving
her own children to grow up without a mother.
As a result of this case, Dr. Huntington reconsidered his
previous testimony as an expert for the prosecution. He had
testified in the 1996 trial of babysitter Audrey Edmunds, who
called 911 just one hour after parents left a little girl in her
care, that it was “highly probable” the fatal injury occurred on
Edmunds’ watch. Eleven years later, he reversed his stance and
testified on behalf of Edmunds in an appeal that eventually led
to her release.
Rather than re-examining or revising the theory, however,
prosecutors and prosecution experts expressed great concern,
saying, “It will be virtually impossible to convict anyone who
shakes a baby to death in Wisconsin if the ruling stands.”
We have a tendency to develop a theory and even in the face of
evidence that disproves our theory, we aren’t swayed.
—Bart Henslington
Misdiagnosis Murder
In theory, the facts determine the theory, but in fact, the theory
determines the facts.
T
heories are “frames” that organize and make sense of
facts. Shaken Baby Syndrome theory has easy answers
for how a child can have retinal hemorrhages, subdural
hematoma and/or cerebral edema without external injury.
Everybody likes easy answers, but they can be wrong.
Central to Shaken Baby Syndrome theory is the belief that
nothing except abusive shaking can cause a certain constellation
of symptoms in an infant. Cautious doctors testify that shaking
is a probable rather than certain cause and leave the jury to
decide, but if a doctor doesn’t know for sure, how can the
conclusions of a medically uneducated jury be trusted?
For years, child advocates urged doctors to “think dirty”—to
be vigilant about suspecting abusive causes for injuries. It
is more important for doctors to simply think, critically and
objectively. They need to pursue truth, whatever the truth
may be. When a child comes to a doctor with unexplained
symptoms, suspicion of caretakers should be an end point, not a
starting point.
The point at which things go wrong is immediately after the
scan shows subdural hematoma or fundoscopy shows retinal
hemorrhage. Then the etiology (cause) of the encephalopathy
(brain swelling) is assumed to be trauma and all differential
diagnoses are discarded. —Dr. Robert Sunderland
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Cognitive Errors
In 1999, a highly publicized Federal Report, To Err is
Human, estimated that the death toll from preventable medical
mistakes, including misdiagnoses, was between 44,000 and
98,000 patients a year. Ten years later, a Hearst investigation
found that most states failed to implement even the simplest
recommendations made in that report and the death toll from
medical mistakes had increased to an estimated 200,000. As
a cause of death, only heart disease and cancer claim more
lives than medical mistakes. But secrecy within the health
care system keeps the problem locked away from public
view. Doctors falsify death certificates to downplay the role of
mistakes, perhaps in fear of litigation. The American Medical
Association spent $81 million to lobby against a recommended
mandatory reporting system to track medical mistakes.
A 2007 book entitled How Doctors Think reveals how easy
it is for doctors to misdiagnose, even with the best and most
innocent of intentions. Between 10 and 15% of all diagnoses
are wrong, mostly because of errors in thinking, including:
• Representative error: When a case seems “typical” of a
certain diagnosis, the doctor unconsciously and unwittingly
fails to perceive facts that point in a different direction.
• Affective error: We all prefer what we hope to be true.
Doctors who have a strong emotional commitment to
stamping out child abuse may actually want to find abuse. It
confirms their sense of importance in contributing to child
welfare. People tend to find what they look for.
• Availability: There is a tendency to judge the likelihood of
a particular diagnosis by the ease with which it comes to
mind. Because of intense education in the area of Shaken
Baby Syndrome, that diagnosis is “available” to most
doctors. It immediately comes to mind when they hear a
report of an unresponsive child. Alternate diagnoses do not
as readily come to mind. Said Jeremy M. Wolfe, professor
of ophthalmology at Harvard Medical School, “If you don’t
find it often, you often don’t find it.”
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• Confirmation bias: This is cherry-picking, attending only
to data that confirms a hypothesis, and rationalizing or
dismissing data that does not.
• Anchoring: This is the tendency to quickly and firmly latch
on to what seems an appropriate diagnosis, and stick to it no
matter what. There is great reluctance to consider even the
possibility of error. Overconfidence generates mistakes.
• Search satisfaction: People often stop searching once they
find something. For example, once retinal hemorrhages are
seen, the search for a diagnosis is satisfied. The baby has
been shaken and that’s all there is to it. No further action is
taken to rule out other possible causes.
Busy doctors use heuristics—cognitive shortcuts. Most
reach a probable diagnosis within 20 seconds of interacting with
a patient. Once a diagnosis has been verbalized, it gains what
is called “diagnosis momentum.” Minds snap shut one after
another as the diagnosis is relayed from person to person. Few
doctors will question a colleague’s plausible diagnosis. Said Dr.
Jerome Groopman, author of How Doctors Think, “Diagnosis
momentum, like a boulder rolling down a mountain, gains
enough force to crush anything in its way.”
What if only two of three Shaken Baby Syndrome
symptoms are present in an infant? Not to worry. Diagnose it
anyway. What if only one symptom is present? It’s a bit more
of a stretch, but hey, why not? Who’s to prove it wrong? One
prosecutor complained that the absence of retinal hemorrhages
was “seized on” by the defense to “distract” the jury. Juries
have convicted people on the basis of a single symptom.
Sometimes I think that a child who comes to a children’s
hospital missing half his limbs and with a dagger through his
heart will be diagnosed as a victim of Shaken Baby Syndrome
if the E.R. doctor or pediatrician finds subdural or retinal
hemorrhage. It’s a one-size-fits-all diagnosis. Nothing else
matters! —Defense attorney
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Vaccinations
Many children diagnosed with Shaken Baby Syndrome
have been recently vaccinated, sometimes very recently. In one
case, four hours after a second DTP shot, a 5-month-old baby
started screaming, rolled back his eyes, went stiff, then limp,
then started gurgling. The father was accused of shaking him.
A defense expert at the trial testified that the batch of DTP from
which the baby’s shot came had caused seizures in 17 other
children. The jury acquitted.
Some people believe vaccinations are responsible for many
or even most cases of sudden infant death, ADHD, autism, etc.
It seems more likely to me that they are part of the problem, and
can be the final straw for a child who is already compromised.
Some children may be more susceptible as individuals.
One doctor believes that Barlow’s disease, infantile scurvy,
combined with vaccination or infection should always be
explored as an alternate diagnosis to Shaken Baby Syndrome.
When a child is deficient in Vitamin C because of an infection
or vomiting, he says, blood histamine levels cause capillaries to
become fragile, break, and bleed.
Retinal hemorrhages have been observed in children after
Hepatitis B vaccinations. Thimerosal, a component of some
vaccines, contains mercury and is believed by parents of many
autistic youngsters to be responsible for their child’s condition.
have been lodged about that particular vaccine or lot. Forward
any information you can locate to the defense attorney.
SBS proponents say vaccines cause children to cry and
the crying spurs a frustrated adult to lose control and violently
shake the baby. It comes down to shaking, one way or another.
Children should never be vaccinated when ill. If possible,
schedule vaccines so the child gets only one or a few at a time.
If a child was born prematurely, the vaccination schedule should
be adjusted so it is based on the child’s due date rather than his
actual birth date. Many babies who die of supposed Shaken
Baby Syndrome were premature. Some received massive
vaccinations prior to their original due date!
If you believe a vaccination might have contributed to
your baby’s collapse, find out all you can about the particular
vaccinations given, including lot numbers. List all vaccines that
were given to the child that day. Check to see if any complaints
Congenital diseases that have been misdiagnosed as abuse
include:
• Osteogenesis imperfecta
• Glutaric aciduria type 1
• Menkes disease
• Hemophagocytic lymphohistiocytosis (HLH)
• Hemophilia and other coagulation disorders
• Von Willebrand disease
• Sickle cell anemia
• Seizure disorders
• Ehlers-Danlos Syndrome
Congenital Diseases
Certain inborn errors of metabolism—congenital diseases—
are known to cause the symptoms attributed to Shaken Baby
Syndrome. Unfortunately, doctors rarely check for them prior
to diagnosing Shaken Baby Syndrome because they are believed
to be “rare.” But how can doctors know how rare they are if no
one bothers to check for them?
Even assuming it is true that only one in a million children
has a certain congenital disease, that is one in a million of the
general population, not one in a million of the small subset of
children who have symptoms of the disease! The “obvious”
diagnosis of Shaken Baby Syndrome is made because baby
shaking is assumed to be “common” as compared to natural
alternatives. But on what basis is that assumption made?
It is my opinion that doctors should be required to test for
all known alternative causes before diagnosing Shaken Baby
Syndrome. Minds should remain open to the possibility that
there may be as-yet-unknown natural causes, as well.
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• Galactosemia
• Hypophosphatasia
• Crouson syndrome
• Rubinstein-Taybi syndrome
• Adams Oliver syndrome
Unfortunately, a mistaken diagnosis of Shaken Baby
Syndrome will delay effective treatment of children with
alternative conditions, perhaps contributing to the child’s death
or long-term disability. From the point of view of a clinician,
there is no need to test for rare conditions in a child that cannot
be saved. But a wrongful diagnosis of Shaken Baby Syndrome
brings criminal charges and perhaps life imprisonment for
someone other than the baby. Tests to rule out all known
alternatives should be conducted before accusations are made!
Doctors complain that such tests are unnecessary and
expensive. They are not medically justifiable. Insurance may
not pay. But compare the cost of tests with the cost of wrongly
convicting and imprisoning a person for decades? How
much does it cost to support a family whose breadwinner is
incarcerated? A little more expense up front to avoid potential
mistakes could save enormous expense in the long run.
In more than one case, parents have been accused of abuse,
only to later learn their child had a congenital disease. As a
result of the false accusation, other children were removed from
the home. Damage was done to a widening circle of innocents.
When a child dies, a correct diagnosis can die with him. Only
when a doctor along the way thinks critically, questions the
“obvious” diagnosis, and orders tests can truth be discovered.
The devastating social and legal consequences for a family
facing a charge of child abuse place the onus on the attending
pediatrician of meticulous exclusion of alternative diagnoses….
It is additionally important to diagnose a potentially modifiable
albeit rare metabolic disorder. —Dr. L.M. Hartley
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Glutaric Aciduria Type 1
An interesting story was recently reported in St. Louis,
Missouri. Some 15 years ago, parents of a little boy who came
to the doctor with retinal and subdural hemorrhages were
not criminally charged because they both passed polygraphs.
Investigators said someone else must have shaken the baby, but
his parents had no idea who that could have been.
The boy recovered, and 15 years later a doctor did a test
that confirmed he had glutaric aciduria type 1, which explained
his childhood symptoms. His younger sister was then tested
and found to have the disease. The parents were quite alarmed
because she was involved in gymnastics. A bad fall could have
ended her life!
Recently, the parents read in the newspaper a story of a
babysitter who had been accused of shaking a child in her care.
They contacted her defense attorney. Testing was done and it
was confirmed that that child, too, had glutaric aciduria type 1.
Charges against the sitter were subsequently dropped.
How rare is glutaric aciduria? No one knows. It may be
more common than fatal violent shaking, which is not exactly
an everyday occurrence!
Menkes Disease
Menkes disease is an inborn disorder of copper metabolism,
estimated to occur in 1 in 100,000 to 250,000 live births,
almost always in boys. Symptoms include massive subdural
hematomas, retinal hemorrhages, and metaphyseal spurs. The
most noticeable symptom, not always present, is twisted wiry
hair of an unusual color which breaks easily.
In one case, child abuse was suspected when a baby came in
with seizures, broken bones, and subdural hematoma. He died
in 2003. No indictment was handed down because there was
not enough evidence to identify a specific abuser. Siblings were
removed from the home and adopted out.
“They had our child diagnosed with Shaken Baby Syndrome
before we got to the hospital,” said the mother. “He got there
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first. By the time we got there no one would talk to us. They
wouldn’t listen. We were abusers.”
Another boy was later born to the same parents in another
state. Something was wrong with him, as well. He appeared
to gag and would pull himself into a little ball. Doctors first
diagnosed cerebral palsy. Eventually, a geneticist examined
the child and told the parents his bones were like glass. He had
fractures from head to toe. Another geneticist who had recently
attended a seminar about Menkes disease (making the diagnosis
“available” to him) ordered a test and it came back positive.
Tests performed on tissue samples from the first boy revealed
that he, too, had Menkes disease. The homicide investigation
was subsequently closed and the cause of death changed from
“homicide” to “undetermined.”
The mother reports that some people still say, “Just because
he had Menkes disease doesn’t mean you weren’t abusing him.”
Efforts to regain custody of the children who had been
adopted out failed. It was too late to reverse the adoptions.
Had the mother been prosecuted and imprisoned after the
first child’s death, she would not have had another baby. Had
the doctors misdiagnosed the second baby as an abused child,
she would likely have received a life sentence. Yet many
doctors refuse to check for Menkes disease because it is “rare.”
In some cases, a child’s life can be saved if a correct
diagnosis is made in time. When doctors assume abuse and do
not rule out every alternative (keeping in mind that some causes
may not yet be known), they contribute to the death of the child
and the undeserved suffering of his family and siblings.
After an article on HLH was published in May 2003, the
authors were criticized for “undermining” the diagnosis of
Shaken Baby Syndrome. Certain doctors seem to prefer that a
diagnosis be abuse, regardless of whether it’s actually true!
Your defense attorney can request that tests for all known
alternatives be done while the child is still alive. If the baby
has died, the attorney can ask for a metabolic autopsy. If that is
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not possible, genetic tests can sometimes be done on parents to
determine if certain recessive genes are present in both parents.
Defense attorneys may not want to request such tests,
thinking that doctors’ failure to perform them will provide
reasonable doubt. Unfortunately, in shaken baby cases, unless
the jury knows what did cause a death, they tend to convict.
Even if you prove a child had meningitis, a blood disorder,
or a metabolic disease, the prosecution may proceed, asserting
that’s no proof you didn’t shake the child!
Diseases
Oftentimes, a baby who is diagnosed as shaken has a known
disease, but doctors who believe Shaken Baby Syndrome theory
will say the disease was caused by the shaking, or claim that
a baby with a disease cries more and so is more likely to be
shaken. Doctors rarely, if ever, check for retinal hemorrhages
unless shaking is suspected. The devil is in the details when
trying to figure out why a baby collapsed or died. Here are
some diseases that have symptoms in common with Shaken
Baby Syndrome. Google these for more detailed information.
• Meningitis
• Bordetella pertussis (whooping cough)
• Central venous thrombosis
• Encephalitis
• Thrombocytopenia
• Hydrocephalus
• Reyes’ Syndrome
• Awake apnea
• Atypical Kawasaki disease
• Liver disease
• Leukemia
• Anemia
• HIV/AIDS
• Purtscher’s retinopathy
• Coat’s disease
• Retinopathy of prematurity (ROP)
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• Toxoplasmosis
• Terson’s syndrome
• External hydrocephalus
• Pneumonia
• Temporary brittle bone disease
• Diabetes
• New viruses
• Stroke
• Neuroblastoma
Aneurysms
Although aneurysms are rare in infants, they do occur and
should not be summarily dismissed as a potential cause of
brain bleeding. Amazingly (to me), some doctors suggest that
aneurysms are a consequence of shaking!
Vitamin Deficiencies
The easiest way to diagnose a vitamin deficiency is to
give the patient the vitamin and see what happens. One baby
was diagnosed as a shaken baby who was actually deficient in
Vitamin K. Because of the diagnosis of child abuse, 9 hours
elapsed before she received appropriate life-saving treatment.
• Vitamin C. Barlow’s disease and infantile scurvy can result
from inadequate vitamin C. Infections rapidly deplete white
blood cell vitamin C levels, as does vomiting or smoking by
a mother during pregnancy. The blood clotting mechanism
may be normal but the blood histamine level very high.
When Vitamin C is lacking, the capillaries and small veins
can become fragile, then rupture and bleed.
• Vitamin D. In part because of sunscreen, most people do not
get enough vitamin D. Congenital rickets is a consequence
of inadequate vitamin D intake by the mother. A baby with
this condition has very soft bones.
• Vitamin K. Newborn babies are routinely injected with
vitamin K, which is necessary for blood to clot. Babies
deficient in this vitamin have died due to brain bleeding.
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These bleeds are more common in premature babies or
babies who had a complicated delivery. Breastfed babies
and those who have difficulty feeding are most susceptible.
Drugs and Anticoagulants
Try to list every drug the baby took—prescription as well as
over-the-counter. Note how much was taken and when. Check
the label for exact dosages. Pills can look alike.
Actor Dennis Quaid’s newborn twins nearly died as a result
of an accidental overdose of heparin, an anticoagulant. Instead
of receiving 10 units, the dose for babies, they received 10,000
units. Thankfully, they survived. He and his wife established
the Quaid Foundation (www.thequaidfoundation.org) to raise
public awareness of medical mistakes and reduce or eliminate
human error in health care.
Lupis anticoagulant is a medical condition that can be
diagnosed with a routine blood test. It prevents blood from
clotting.
Aspirin is a powerful anticoagulant, even in small doses. It
is not recommended that small babies be given aspirin.
Brown recluse spiders in particular inject anticoagulants
when they bite, as do some snakes, bees, and insects.
Environmental Toxins
Some have suggested that benzene, a chemical present
in many prescribed drugs and environmental agents, lowers
platelet counts and causes bleeding and easy bruising. Other
chemicals, including fluoride in toothpaste, can increase the
potency of benzene. List all chemicals the baby may have been
exposed to.
Some herbal or homeopathic remedies can cause lead,
arsenic or mercury poisoning. Adverse reactions may be caused
by individual allergies, so list everything you can think of for a
defense expert physician to review.
Some problems may be due to a combination of
environmental and genetic factors.
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Shaking, Nothing but Shaking
Even in cases where congenital, environmental and
individual factors could explain symptoms, doctors may insist
that shaking is the only sufficient cause.
• A baby boy had heterotopia (brain matter in the wrong
place), megalencephaly (abnormally large brain),
hydrocephaly (water on the brain) and a subdural
hemorrhage. He had been accidentally stabbed in the brain
a year before he died, resulting in permanent injuries. He
collapsed in the care of a babysitter, who was convicted and
sentenced to life for shaking him.
• A little girl was born with Adams-Oliver Scalp Defect
Syndrome and a bad heart. She had an artificial eye and her
arms were not fully developed. The left arm ended at the
elbow and she had only three fingers on her right arm. She
went back and forth to the doctor numerous times, and died
after an operation. Her stepfather was accused of shaking
her, convicted, and sentenced to life without parole.
Stories like this stun me. Despite all the health problems
these little ones suffered, not only doctors but 12 jurors decided
beyond reasonable doubt that nothing other than murder could
explain their demise.
Every case is different. Every child is different. Statistics
have no relevance when considering an individual case. If
Down syndrome affected only one in 5 million babies, a doctor
could not possibly conclude that a particular baby didn’t have
Down syndrome because it’s unlikely! Doctors should pay
special attention to anything that doesn’t support an initial
hypothesis rather than minimizing it or explaining it away. It
has been suggested that doctors play devil’s advocate with
themselves, honestly, before committing to a diagnosis.
There is a powerful temptation felt by patients and doctors alike
to have a simple answer to complicated problems.
—Dr. Karen Delgado
Challenging Admissibility of Evidence
Y
our attorney should, if possible, challenge the
admissibility of just about everything, including grisly
autopsy photos, videotapes demonstrating the theory of
what supposedly occurs when a child is shaken, and any
“confession.” Challenge the prosecution’s plan to set a
large photograph of the child in front of jurors throughout
the trial. Try not to let them refer to the baby as the
“victim.” Challenge the admissibility of old injuries on the
basis that it is impossible to prove when they occurred or
who, if anyone, inflicted them.
Daubert or Frye hearings are appropriate in nearly all
Shaken Baby Syndrome cases, especially to challenge the
foundation of the theory itself. Defense counsel can request all
articles upon which the State’s experts will rely for opinions
on causation and timing, all articles the expert has written, and
information on all cases at which the expert has previously
testified about causation or timing.
Some things that can be challenged:
• The inconsistent criteria for diagnosis.
• The faulty assumptions underlying statements about timing
and causation.
• The bias of expert witnesses. Defense experts might be
able to testify in a Daubert hearing that prosecution expert
opinions are contaminated by bias.
Most trial judges see very few shaken baby cases in a career.
They are not experts themselves, and they do not want to look
bad or have a ruling overturned on appeal. Most appreciate
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attorneys who educate them so they can rightly rule on issues
of admissibility. “Give them lots of support, legal and medical,
for ruling your way,” said one judge. “The last thing a judge
wants is to be surprised at trial.” He urged attorneys to settle
all admissibility issues before trial, and encouraged the use of
Powerpoints and other audio-visual media.
Here is a brief history of expert “scientific” opinion:
Frye v. United States
In 1923, defendant James Frye appealed his conviction for
second degree murder on the basis that the court had refused to
allow evidence to be admitted that would have demonstrated his
truthfulness. He had offered to take a systolic blood pressure
test, a crude precursor of the polygraph, in front of the jury, and
wished to introduce expert evidence attesting to its reliability.
All three justices in the Court of Appeals for the District of
Columbia ruled for the United States, rejecting Frye’s argument
with these now-famous words:
Just when a scientific principle or discovery crosses the
line between the experimental and demonstrable stages
is difficult to define. Somewhere in this twilight zone
the evidential force of the principle must be recognized,
and while courts will go a long way in admitting expert
testimony deduced from a well-recognized scientific
principle or discovery, the thing from which the deduction
is made must be sufficiently established to have gained
general acceptance in the particular field in which it
belongs.
Under Frye, “general acceptability” was the standard,
leaving determinations of whether science was reliable in the
hands of the scientific community. “General acceptance”,
however, does not ensure an idea is true. It was once generally
accepted that the world was flat.
Rule 702
In 1975, the United States Congress formally adopted the
Federal Rules of Evidence (FRE). They apply to all federal
trials and are a model for rules of evidence used in state courts.
Rule 702 spoke to admissibility of testimony by experts:
If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise,
if (1) the testimony is based on sufficient facts or data,
(2) the testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles and
methods reliably to the facts of the case.
In contrast to the Frye standard, under Rule 702, assistance
to the trier of fact was the touchstone of admissibility. This
eased the burden for those wishing to proffer “expert” evidence
and led to what has been called “junk science” in the courtroom.
Unfortunately, the debate about “junk science” was mostly
confined to its use in civil litigation. Expert testimony in
criminal trials was all but ignored.
Daubert v. Merrill Dow Pharmaceuticals
In 1993, the U.S. Supreme Court issued a ruling that has
been heralded by many as one of the most important legal
decisions of the 20th Century. A mother took the drug Bendictin
for nausea during pregnancy and her son was born with birth
defects. She sued Merrill Dow, manufacturer of the drug, and
the case was appealed all the way to the Supreme Court, which
issued new standards for the admissibility of expert testimony.
The Daubert test was designed to keep out unreliable
or “pseudoscientific” expert scientific testimony that would
confuse or mislead juries. The Court wrote:
Faced with a proffer of expert scientific testimony under
Rule 702, the trial judge … must make a preliminary
assessment of whether the testimony’s underlying
reasoning or methodology is scientifically valid and
properly can be applied to the facts at issue. Many
considerations will bear on the inquiry, including whether
the theory or technique in question can be (and has been)
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tested, whether it has been subjected to peer review
and publication, its known or potential error rate and
the existence and maintenance of standards controlling
its operation, and whether it has attracted widespread
acceptance within a relevant scientific community. The
inquiry is a flexible one, and its focus must be solely on
principles and methodology, not the conclusions that they
generate.
Under Daubert, the trial judge became the sole arbiter
of what was admissible. Chief Justice William Rehnquist,
dissenting, said that Daubert would force judges to become
amateur scientists, despite the fact that many of them lacked
the scientific literacy to effectively fulfill the role of gatekeeper.
Appeals courts have generally upheld judges’ Daubert rulings.
3. Whether the expert has adequately accounted for obvious
alternative explanations.
4. Whether the expert is being as careful as he would be in his regular professional work outside his paid litigation
counseling.
5. Whether the field of expertise claimed by the expert is
known to reach reliable results for the type of opinion the
expert wishes to express.
Rule 702 Revised
In 2000, Rule 702 was amended in response to Daubert.
Trial judges, experts in the law, are not experts in science.
Many are poorly equipped to discriminate between true science
and junk science. As a result, expert testimony offered by
prosecutors in criminal cases is rarely excluded or restricted.
Defense motions to exclude such testimony in shaken baby
cases have been almost uniformly unsuccessful, with two
notable exceptions, summarized below.
Later Rulings
Courts before and after Daubert have found additional
factors to be relevant when deciding whether to admit expert
testimony, including:
1. Whether experts are proposing to testify about matters
growing naturally and directly out of research they have
conducted independent of the litigation, or whether they
have developed their opinions for the purpose of testifying.
2. Whether the expert has unjustifiably extrapolated from an
accepted premise to an unfounded conclusion.
Commonwealth of Kentucky v. Davis
In 2006, a trial judge in Greenup County, Kentucky, was
asked by defense counsel to determine at a Daubert hearing:
1. The admissibility of medical and scientific evidence that
manual shaking can cause subdural and retinal hemorrhages
in infants.
2. Whether SBS meets the Daubert criteria for admissibility as
a scientific theory to explain the injuries to the child.
3. The admissibility of evidence that subdural and retinal
hemorrhaging in infants can only be caused by manual
shaking.
4. The admissibility of evidence that the symptoms of subdural
hematoma and retinal hemorrhaging would be immediately
apparent.
5. The admissibility of opinions that the injuries of the victim
are consistent with Shaken Baby Syndrome.
After hearing experts on both sides at a Daubert hearing,
Judge Lewis Dunn Nicholls ruled that the State could not
present expert testimony on Shaken Baby Syndrome based
If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise,
if (1) the testimony is based upon sufficient facts or data,
(2) the testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles and
methods reliably to the facts of the case.
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exclusively on subdural hematoma and retinal hemorrhage
in the absence of other signs of abuse. While subdural and
retinal bleeding may be correlated with abuse, he said, that
does not mean they are invariably caused by abuse. “To allow
a physician to diagnose SBS with only the two classic markers,
and no other evidence of manifest injuries, is to allow a
physician to diagnose a legal conclusion.”
Although Daubert rulings are not binding on other courts
of law, evidence found inadmissible in one case is likely to be
challenged in similar cases.
Prosecutors appealed and the ruling was reversed. Appellate
justices criticized the judge for impermissibly usurping the
role of the jury by weighing the credibility of the experts.
Cross-examination, said the court, is the appropriate means of
attacking weaknesses in expert testimony, with the jury deciding
the merit of the testimony.
State of Missouri v. Kathy Hyatt
In this case, as well, the diagnosis was based solely on
subdural hematoma and retinal hemorrhage. Defense counsel
challenged the admissibility of expert evidence at a Frye hearing
in 2007, and Judge Hadley E. Grimm ruled that “In the absence
of some other evidence or indicia of abuse besides subdural
hematoma, retinal bleeding, and absence of cranial trauma,
neither party may call a witness to give an expert opinion that
the child was the victim of violent shaking; the Court further
finds that an expert may not opine that a (small) subdural
hematoma and retinal bleeding in an infant can only be caused
by manual shaking.” Prosecutors took the case to trial without
the expert evidence and a jury acquitted in 30 minutes.
There are important differences between the quest for truth
in the courtroom and the quest for truth in the laboratory.
Scientific conclusions are subject to perpetual revision. Law, on
the other hand, must resolve disputes finally and quickly. —United States Supreme Court in Daubert
What’s Circumstantial, What’s Not
There are many men in prisons all over America who are
innocent of the crimes charged against them. But that is the
misfortune all of us face. Anyone picked up by the police may
have to face circumstantial evidence which incriminates him.
If an innocent man is convicted, he has no recourse. He has to
take the chance that all of us take.
—Clarence LeRoy McKinney, Judge
D
irect evidence directly proves facts of a case. For
example, if an eyewitness saw a defendant stabbing a
victim, she can provide direct evidence to prove the crime
in a court of law. Circumstantial evidence suggests truth
rather than directly proves it. For example, if a witness saw
a person enter a building, heard screaming, then saw the
person leave the building with a bloody knife, her testimony
will provide circumstantial evidence.
Circumstantial evidence is a collection of facts that,
when taken together, can be used to infer the main facts of
the case, as in the example above. Circumstantial evidence
includes forensic evidence and expert testimony that supports
the prosecution’s theory of a case. Facts are deduced from
evidence, rather than directly proved.
Prosecutors “prove” Shaken Baby Syndrome with
circumstantial evidence. Facts: The baby was “fine” when left
with the sitter. Tired and sick maybe, but nothing out of the
ordinary. A few hours later he was rushed to the hospital where
he died. Elementary, my dear Watson!
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Although confessions are considered direct evidence, they
are plagued with problems. Only one alleged shaking incident
has been videotaped, with a nanny-cam. It was edited and
broadcast on nationwide television. The sitter claimed she
had been “dancing” with the baby to music. The baby was
not harmed. Charges were dropped after top forensic video
experts testified that the nanny-cam took still pictures a few
times a second, which made gentle motions appear to be violent.
Police had copied only the “relevant” portions of the tape.
Surrounding footage showed the sitter playing gently with the
child. Prosecutors eventually acknowledged the video evidence
was worthless and cleared her record of the charges entirely.
She had spent 2.5 years in jail awaiting trial by that time.
Nearly every criminal case utilizes circumstantial evidence.
Criminals avoid doing bad acts in public and do not generally
advertise their intentions. Conclusions as to guilt and intent
must be reached by reasoning from facts available. Even
very strong evidence, such as DNA and fingerprints, is
circumstantial. University of Michigan law professor Robert
Precht said, “Circumstantial evidence can be, and often is,
much more powerful than direct evidence.” Even the proverbial
“smoking gun” is circumstantial if no one directly observed the
suspect pull the trigger.
Strong circumstantial evidence can be more reliable than
eyewitness testimony. More than 75% of people exonerated by
DNA were convicted in part because of eyewitness testimony
that may have been sincere but was wrong. Crimes may occur
quickly, in bad lighting, and in contexts packed with emotion.
From their very inception, memories become distorted as they
filter through assumptions and preconceptions. Gaps are filled
in and misremembered, then further distorted as a story is told
and retold. Stories tend to be tailored to the expectations of
listeners. Third parties (police, other witnesses) can introduce
erroneous details. Bias creeps without a person realizing it.
Studies have shown that eyewitness confidence is often stronger
for incorrect than for correct identifications!
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Forensic evidence must be introduced into a trial through
witnesses, including the person who found the evidence and the
expert who tested or interpreted it. Prosecution experts often
say a baby’s injuries were inflicted “unless proven otherwise.”
How can a defendant, who is not a doctor, possibly “prove
otherwise”? How can other causes be proved when they are not
even considered? And how can doctors be so confident they
know all there is to know about baby brains?
Dr. Caffey himself said, “The assumption that subdural
hematomas are caused by a single traumatic episode is far
from proved.” That assumption, in fact, has been disproved!
Children with congenital bleeding disorders have subdural
hematomas that were not caused by trauma. There may be other
nontraumatic causes as yet undiscovered.
Courts have held that circumstantial evidence alone may be
sufficient to support a murder conviction even in the absence of
a body, a confession, or other direct evidence of death. Some
have held that “exclusive opportunity” can provide “almost
conclusive evidence of guilt.”
On the other hand, some have held that circumstantial
evidence, in order to be considered, must be inconsistent
with any theory of the defendant’s innocence. Prosecution
experts must convince a jury that nothing other than shaking
can possibly explain the baby’s symptoms, that no alternative
explanation is possible. Said one doctor to emphasize that
point, “You have a dead baby before you. Did a flying saucer
come in from Mars and strike the baby in the head?”
Given that as the only alternative, what could a jury be
reasonably expected to decide?
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Child Protective Services (CPS)
When there is an accusation of abuse, child protective services (CPS)
will quickly become involved. Be calm, courteous and cooperative with
CPS workers at all times. They wield enormous power.
Margie’s husband was very wise. He immediately called CPS and
obtained permission to take the children to their pediatrician for a wellchild checkup, then fly them out of state to stay with a grandmother. I
thought he was overreacting. Now I know better. Had CPS arrived at
the door, they would have torn the screaming children from their parents’
arms. The little ones would have disappeared into “the system.”
CPS workers are overworked and overstressed. Their case loads
are unbelievable. Once children have been removed from their parents
and are presumed safe, you may have to move heaven and earth to get
anyone to pay further attention to your case! Any previous contact with
CPS, however unsubstantial, will render things much more difficult.
An accused person may not even be afforded the courtesy of an
interview with CPS before children are taken away. In Margie’s case, an
experienced social worker conducted an in-depth interview with her and
her husband three weeks after charges were filed—four weeks after the
baby collapsed. He told them he never reads a file before interviewing
the parents, so he can form his own unbiased impressions. His questions
were probing, and over a three-hour interview he became more and more
impressed. He left saying theirs was a wonderful home. He promised to
recommend that the children be allowed to return home, with provision
that Margie not be left alone with them.
It didn’t happen. His supervisor disregarded his report and denied
his recommendations. He no longer works for the agency. We don’t
know what became of him. Suffice it to say that social workers who are
insufficiently zealous against accused child abusers risk their careers.
Months rolled by and nothing happened. Eventually, Margie’s
husband resigned from his professional job and moved out of state. He
began sending e-mails asking under what conditions the children would
be allowed home. No response. He copied the e-mail to a higher level,
higher and higher until it almost reached the governor. Eventually, CPS
responded with conditions that allowed the children to return home.
Margie couldn’t live with them and couldn’t be alone with them, but that
was worked out. The kids flourished under her love as we awaited trial.
Some parents have agreed to separate from or turn against a spouse
in order to get the kids back. One mother who did that called it “a pact
with the devil” and bitterly regretted it. Families should stick together
and hold tightly to the truth. Your children need both of you!
Character Witnesses
You have these defendants, who many times have had no prior
criminal history and no past run-ins with the criminal justice
system. They also usually have good character witnesses. —Prosecutor Denise Oncken
A
t one time, character testimony was a good defense
in a criminal case. It was generally believed that
character counted and people were unlikely to act in ways
inconsistent with their character. Now, it is commonly
accepted that people who seem to be wonderful are capable
of doing unthinkable things behind closed doors. Juries
may discount friends and relatives as “interested” and
discount their positive testimony about a defendant.
Accusers often make a number of assumptions about a
defendant’s history and character based on the fact that she
has been accused! Most people accused of shaking babies,
according to the book Silenced Angels:
• Were abused as children.
• Have alcohol or substance abuse issues.
• Have difficulty controlling anger.
• Focus on discipline.
• Are insensitive to the needs of the infant.
• Have unrealistic expectations of the infant.
• Have limited parenting skills.
• Have multiple life stressors.
• Are emotionally unattached. “Loving parents who have
established bonds with their children will not shake
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them.” (Reasoning backwards, that means a person
accused of shaking a child does not love the child and
is not emotionally attached, evidence to the contrary
notwithstanding.)
None of these “characteristics” remotely describe many
people who have been accused of shaking babies. A sterling
reputation may be helpful in a burglary case, but not in a shaken
baby case: “People who shake or abuse babies are not part of
the criminal class,” said one child advocate. “They are not bank
robbers. They are loving parents, gray-haired ladies who go to
church three times a day.” Really? Wouldn’t such a “profile”
indicate that perhaps the theory should be re-examined?
Other than medical experts, the only witnesses a defendant
might be able to call are character witnesses. But the rules on
what they may say are very restrictive.
In Margie’s, case, these were the questions asked of her
three character witnesses:
Defense: How long have you known the defendant?
Have you been to her home?
Do you know others who know her?
What is your opinion of her reputation for honesty and
peacefulness?
Prosecution: Were you at her home that day?
Are you good friends?
Is it true you don’t want anything bad to happen to her?
Have you ever been with her when she had four children
in her care?
Have you seen her alone with children? (an impossibility
no matter how you look at it)
Have you ever heard of times when good people do bad
things?
Would you agree that some people, good people, can do
bad things?
Character witnesses are allowed to testify mainly to a
person’s reputation for truthfulness. Personal opinions of
defense witnesses are not admissible to show good character.
A character witness may not mention specific good or bad acts
performed by the accused that demonstrate good character.
The prosecutor at Margie’s trial asked the judge not to
include any statement about character evidence in the jury
instructions. The judge denied her request, saying, “The only
thing the defendant really has in a case like this that they
can utilize is character.” The jury instructions stated: “The
defendant brought evidence of character. This is relevant
because it may be reasoned that a person of good character
would be unlikely to commit a crime. Evidence of character
may be sufficient to raise a reasonable doubt.”
In the prosecutor’s closing argument, she said,
Then there’s the character witnesses. With all due respect,
the people told you only that their opinion was she had a
good character. They seem to be good and honest people.
But put those opinions in the proper context. They’re
friends! No one wants friends or family members in
trouble. No one wants to believe that a friend or family
member did something this horrible. You heard her
brother say that people who seem nice sometimes lie and
do bad things.
You’ll hear jury instructions about the character
evidence that will allow you to give weight to character.
I submit to you, give it no weight. No one is saying the
defendant is a bad person. I asked at the beginning if you
could put sympathy aside. You said yes, you would judge
this case on the facts. You have all the evidence. This
baby was shaken violently and it died. The person seated
here shook him.
Once a defendant has placed character at issue, the
prosecutor can introduce contradictory evidence. Have you ever
lost your temper in public? Have you ever argued with your
spouse? If witnesses can be found to testify to those things, the
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prosecutor can make the case that the kind of person you portray
yourself to be in public is quite different than the kind of person
you really are when no one is watching. Anything you’ve ever
done or said can be used against you.
Prosecutors emphasize that child homicide is a secret crime,
done behind closed doors. They emphasize that their experts are
stating facts, whereas character witnesses only state opinions.
In one case, a judge who sentenced a mother to 30 years
in prison said, “A lot of your family and friends describe your
good character and caring demeanor. But sometimes a crime is
so heinous that previous character matters little. Good people
sometimes commit horrible crimes. A person who testified for
you—I don’t remember who it was—said the state was trying
to make you out to be a monster. Well, you were a monster that
day.”
Maybe. I wouldn’t bet on it.
Expert Witnesses
An expert is someone who knows more and more about less and
less until eventually he knows everything about nothing.
—Nicholas Murray Butler, President of Columbia University,
1902-1945
T
he first known use of an expert witness in England was
in 1782. A court accepted evidence from a leading
civil engineer regarding the silting up of Wells Harbor in
Norfolk. Expert testimony was so unusual as late as 1957
that a judge in the Old Bailey remarked: “It is a most
curious situation, perhaps unique in these courts, that the
act of murder has to be proved by expert evidence.”
These days, it’s not curious in the least. Expert testimony is
regularly allowed if subject matter being admitted into evidence
is “beyond the ken of the average lay person.” Shaken Baby
Syndrome prosecutions rely heavily, sometimes exclusively, on
expert testimony. Acquittals are rare without defense experts.
Trials turn into battles between opposing experts, where
whoever can afford the most or best experts has the advantage.
(Generally it’s the prosecution. They have access to the public
purse.) Prosecutors have called as many as 12 expert witnesses!
According to one juror who voted to acquit: “It was almost
like the trial was more about Shaken Baby Syndrome than
this baby and this sitter. The experts had their agendas…. It
was like they were trying to make some kind of statement.”
Fortunately for the defendant, the jurors in that case perceived
that the battle was more ideological than scientific. In most
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cases, jurors, ill-equipped to critically evaluate the validity and
reliability of “scientific” pronouncements, blindly believe what
prosecution doctors tell them. Obviously an innocent baby
died. Obviously it was caused by something. Obviously the
doctors know more than we do, they think. The defendant must,
therefore, be guilty.
While a mediocre attorney can win a shaken baby case with
a good expert, an excellent attorney will have difficulty winning
without a good expert. To mount a vigorous defense, at least
one medical expert is essential. What kind of expert depends on
the specifics of the case.
The most important predictor of an acquittal is the
presentation by the defense of nationally prominent experts who
challenge the science itself. Even when this is done, however,
the jury may give more credence to prosecution doctors.
Battle of the Experts
The war of the experts in Shaken Baby Syndrome is heated.
“I would like to see the heat turned down,” said Dr. Robert
Reece. “People are very committed to one side or the other and
we’re not going to get answers from that kind of dialog.”
Assumptions define and limit what people perceive.
Humans tend to see things not as they are but as they think they
ought to be. Expert after expert can reach the same erroneous
conclusion because of such expectations. Knowledge of
“collaborating” conclusions increases the confidence of each
expert beyond what it might have been otherwise. Unless the
initial conclusion was sound, cross-contamination can create
guilt out of next to nothing. This has been called the “echo
chamber” effect.
Each trial is a separate battlefield in a major, all-out war.
Unfortunately, jurors can’t see the forest for the tree (the
individual case they’re trying). While everyone knows good
people can sometimes do bad things, jurors don’t realize that
hundreds of good people have been accused of doing this one
specific bad thing, that many have a perfect history with dozens
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of character witnesses, that most refuse to plea bargain, that
many pass polygraphs, maintain their innocence even after
trial and refuse to admit guilt even when it means being denied
parole and spending additional years in prison.
Expert opinions conflict because nobody has sufficient
scientific data in this area! As experts present conflicting
opinions, jurors assess their credibility on the same basis they
use to evaluate lay witness testimony: manner, personality,
appearance. Some doctors are charismatic and do an excellent
job on the stand, despite a weak scientific basis for their
opinions. Jurors tend to believe prosecution experts who are
confident and persuasive over defense experts who will not say
for sure how the child died but assert there is no proof he was
shaken. Juries tend to pick the most “likely” story, effectively
shifting the burden of proof to the defense.
Some experts come across as so credible that juries believe
their opinions despite contradictory facts. At one trial, a
prosecution expert opined that the shaking had to have been
so severe that the child became immediately unconscious and
never recovered. The jury gave greater weight to that opinion
than to the proven fact that the child was conscious when
emergency workers arrived at the home.
A relative of one defendant observed, “When asked to back
up their opinions with medical fact, [prosecution experts] refer
to other experts with the same opinions. It seems that if you are
a medical expert, your opinion, if repeated enough, turns into
fact.”
Child advocates bemoan the existence of what they call
“irresponsible” testimony. A witness is “irresponsible”, they
say, if he or she testifies for the defense. Interestingly, doctors
who once testified for the prosecution but now testify for the
defense (Patrick Barnes, George Nichols, Robert Huntington III
and others) were believed without question when they were on
the “right” side but are now called “irresponsible.” In the eyes
of child advocates, they’ve gone over to the “enemy” rather than
followed the scientific evidence to where it led.
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According to Brian Holmgren, in an article on the National
Center on Shaken Baby Syndrome website, “The legal system
facilitates irresponsible expert testimony.” He bemoans the
fact that “Some experts will attempt to expand the time frame
for when the injury occurred so that other ‘caretakers’ could be
responsible.” Is that irresponsible if TRUE? There are known
and proven cases of delayed collapse. How can a prosecution
expert be sure, beyond a reasonable doubt, that in this particular
case the baby’s collapse was immediate? It is an opinion. Just
an opinion. However honestly held, it may be utterly wrong.
Shaking may be the “most likely” cause of certain injuries.
But that does not mean shaking is the only possible cause of the
injuries, which is what prosecution experts assert. And even
that is not the same as saying the last person with the child is the
only possible perpetrator.
Unfortunately, if the underlying weaknesses of SBS theory
were to be acknowledged or seriously addressed, it may become
difficult or impossible to convict some true child abusers. Due
to the perceived “epidemic” of child abuse and the belief that
most abusers aren’t caught or punished, such a possibility is
unacceptable to child advocates. Better to err the other way.
It baffles some prosecution experts that anyone could doubt
their opinions. “Do [defense experts] do it just for money, for
reasons of professional enmity or vanity? Or is it because they
disbelieve or deny the existence of child abuse?” sincerely
queried Sir Roy Meadow.
Problems with Expert Testimony
Several things confound the issue of expert testimony in
Shaken Baby Syndrome cases:
• The doctors are not lying! They sincerely believe what they
are saying, and either don’t know or don’t care that it may
not be true, especially when applied to a particular case.
• Experts infer “facts” such as force and duration of shaking
from the theory alone, not from solid science.
• In our adversarial justice system, experts who disagree with
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the theory of the “side” that contacted them will not be
called to testify.
• Experts are paid by either the prosecution or the defense.
There is subtle and not-so-subtle pressure to tailor testimony
to please the paymaster, or to tender opinions with a greater
degree of firmness and certainty than the expert really feels.
It has been recommended by some that the court call and
pay impartial expert witnesses to help the jury understand
complicated evidence.
• Experts on both sides may be paid large sums of money
for their time. Prosecutors nearly always dismiss defense
experts as “hired guns” in front of the jury, not mentioning
that their own experts are paid as well. Yet an expert who
testifies for the defense without charge is dismissed as a
biased advocate. Pay or don’t pay, a defendant can’t win!
• Reputations as “experts” in the legal system may depend
more on the number of appearances in court than the
accuracy of the opinions proffered.
• Standards differ between medical and legal professions.
Medical diagnoses are based on probabilities, whereas
courts require proof beyond reasonable doubt. Doctors
testify to “a reasonable medical certainty” which may be a
good deal less than 100% certainty. They use words like
“consistent with” which lawyers interpret to mean “caused
by” as opposed to “cannot be ruled out.” Equivocal words
alone should provide reasonable doubt in a court of law!
• Just because more experts testify for one side than the other
doesn’t mean they’re more correct. I was surprised to read
in one book used to train investigators, “Prosecutors should
have their expert witnesses meet to discuss their common
points of evidence.” Is that permissible with lay witnesses?
• The jargon used by doctors is baffling to juries, but
impressive. Juries prefer certainty by an expert for the
prosecution to uncertainty by an expert for the defense.
• Research has shown that a person’s confidence in his
opinion is often in inverse ratio to its reliability.
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• The child abuse industry is lucrative. The livelihood of
thousands of people depends on there being enough abuse to
justify their paychecks. A network of experts exists that can
be relied upon to substantiate nearly all suspicions of abuse.
It is difficult to avoid the subconscious tendency to reject for
good reason data which weaken a hypothesis while uncritically
accepting those data which strengthen it. —Seymour Kety
Wrote Patrick Lesage, former chief justice of the Ontario
Superior Court, “Unquestionably, we do cloak the expert, the
opinion giver, with an authority that is very often not justified.
… I think even using the word ‘expert’ is already cloaking them
with a great authority which maybe they ought not to have.”
What Does It Take to Be an Expert?
For every expert, there is an equal and opposite expert.
–Arthur C. Clarke
Lay witnesses may not render opinions in court and must
restrict their testimony to facts. Expert witnesses, however, are
allowed and encouraged to express opinions. There are three
common law rules that guide courts in determining whether an
individual qualifies as an expert:
1. The person need not be the best witness on the subject.
2. He need not be an outstanding practitioner in the field in
which he professes expertise.
3. Experience alone may qualify a witness to express an
opinion.
Surveys have shown that most lawyers and judges do not
carefully check the qualifications of experts. The responsibility
is laid on jurors to sort out whose testimony is most believable.
What Are the Standards for Expert Testimony?
Refer to a previous chapter, “Challenging Admissibility
of Evidence” (pp. 198-203), for background information and
wording of applicable laws.
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In review, the Frye test, established in 1923, permitted
expert testimony to be admitted based on its “general
acceptability” in a particular field.
Rule 702 of the Federal Rules of Evidence, adopted in 1975,
made assistance to the trier of fact a touchstone of admissibility.
In 1993, the United States Supreme Court set a new standard
with its ruling in Daubert v. Merrill Dow Pharmaceuticals.
Trial judges, they said, must ensure that any and all scientific
testimony is not only relevant but reliable. Daubert made trial
judges scientific gatekeepers. In practice, judges admit nearly
all purportedly “scientific” opinion testimony and leave it to
jurors to decide which expert to believe.
Appeals courts have been remiss to overrule trial judges on
questions of admissibility of expert evidence. Unless an appeals
court believes a trial judge clearly abused his discretion, rulings
on admissibility of expert testimony are generally upheld.
Not always. In a 2007 Daubert hearing in Kentucky, the
judge barred prosecutors from introducing expert testimony
that a baby had been shaken unless there was corroborating
evidence of abuse. The first such ruling in the nation, it brought
a storm of protest from child advocates. The ruling, which they
called devastating, would interfere with their ability to protect
defenseless children, they insisted. The appeals court did not
uphold that judge’s ruling.
How to Find a Medical Expert
Defense expert physicians, in particular, have more
cases than they can handle. Fortunately, as time has passed,
more and more doctors have begun to question the scientific
underpinnings of a theory that has torn families apart and sent
people they believe to be innocent to prison for decades.
Defendants are often unable to pay well-qualified doctors
what they would normally charge. Some doctors work for much
less than they would earn in normal practice, as a service.
To find an expert, start by searching medical articles on
PubMed (http://www.ncbi.nlm.nih.gov/pubmed/). Your attorney
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can then call doctors who have written articles or letters
questioning SBS theory to ask who they might recommend
to evaluate your specific case. Search the internet for “expert
witness” “Shaken Baby Syndrome” to find names of doctors
who have testified in other trials. Your attorney will have
avenues for contacting experts, as well.
If possible, hire an expert who has excellent credentials
and is objective. Jurors will not be impressed by an expert
who appears to be ideologically motivated or seems to be
an advocate for the defendant. Inquire if the expert is Board
Certified in her specialty. Board Eligible is not the same thing.
It is best if she has testified for the prosecution in some cases.
Experts must be able to render opinions “to a reasonable
degree of medical certainty.” To do that, they need to review a
huge amount of information. You can save a lot of their time
and your money by gathering everything they need and sending
it to them all at once, organized and labeled. (See pp. 291-292
for a checklist of what to include.)
Some defense attorneys have succeeded in getting judges
to approve funds to pay for expert witnesses. In one case, a
verdict was overturned on appeal because an indigent defendant
was denied funds to hire an expert to evaluate the complicated
medical evidence. The prosecution had called 13 doctors! Even
when a defendant is not indigent, attorneys have successfully
petitioned courts to provide funding for experts. One wrote,
“In a death penalty case, the field must be equal. If the
Commonwealth has the funds to retain experts, so should we.”
One public defender obtained state funding for a defense
expert who completely undermined the prosecution’s theory.
The prosecutor offered to drop all five felony charges in
exchange for a guilty plea to a misdemeanor, with probation and
expungment of the record after he reimbursed the state for the
$7000 they spent on his case.
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In 2008, an appeals court in New Mexico ruled in the case
of State v. Schoonmaker that “expert testimony was critical
to the defense to call into question the State’s expert opinions
that Child’s injuries could only have been caused by shaking
of a violent nature.” The defendant himself was indigent. His
parents had paid for a private attorney but were unable to afford
experts. The state Supreme Court ruled that because of the trial
court’s role in denying funding for experts, Schoonmaker was
entitled to a new trial.
Some doctors, such as those working for the National
Institute of Health (NIH) and the military, are not allowed to
testify as experts.
It is worthwhile to retain a medical expert even if she
doesn’t testify at trial. Attorneys are specialists in the area of
law, not medicine. A doctor can provide invaluable assistance
in the preparation and presentation of your defense, as well as
help an attorney prepare to cross-examine prosecution medical
witnesses.
Attorney and medical expert should advise each other on
their specific areas of expertise. The expert should be told what
to expect at trial and what to do/not do. The attorney should
learn what questions to ask the expert so the expert will be able
to adequately render an opinion.
The American Prosecutors Research Institute retains
copies of everything defense experts have said in past trials.
Prosecutors will use this information to cross examine your
expert, so your defense attorney might want to be aware of
everything your expert has previously said under oath.
To my knowledge, there is no similar centralized collection
of prosecution expert testimony.
If the law has made you a witness, remain a man of science.
You have no victim to avenge, no guilty or innocent person to
ruin or save. You must bear witness within the limits of science.
—Paul H. Broussard, Chair of Forensic Medicine, Sorbonne
(1897)
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Even in Salem Village, Massachusetts in 1692, the opinions
of doctors lent credibility to accusers. Dr. Griggs testified
that he “was clearly of the Opinion, that the persons were
Bewitched.” Much progress has been made in science since
that time, but perhaps not quite enough. Let us never forget that
persons are innocent until proven guilty in our system of law.
As proven by facts, not opinions.
British Law Commission
In Great Britain, a Law Commission was created as an
independent body in 1965 to review laws and recommend
reform where needed. The Commission publishes consultation
papers, which may be commented upon by anyone interested,
and reports recommending changes where needed to ensure that
the law is fair, modern, simple, and as cost-effective as possible.
In 2009, a consultation report was issued concerning expert
evidence in criminal trials. It stated, “Although juries should
not defer to experts’ knowledge and opinions, there remains the
danger that they will do so, especially if the field of expertise
is particularly difficult to comprehend. This gives rise to a real
danger if there are legitimate questions about the validity of the
expert’s opinion. … A related problem is that judges, advocates
and jurors may not appreciate the limits of expert—and
particularly scientific—evidence.” A final report is expected in
2010. The consultation report can be accessed at: http://www.
lawcom.gov.uk/expert_evidence.htm.
At Long Last, the Trial
[Trial by jury is] the only anchor yet imagined by man, by which
a government can be held to the principles of its Constitution. —Thomas Jefferson
he Sixth Amendment to the United States Constitution
guarantees the right to a speedy trial. The Fourteenth
Amendment applied this rule to the states. The time limit
for “speedy” varies according to jurisdiction. The purpose
is to protect accused individuals, presumed innocent, from
prolonged imprisonment or other limitations on freedom
prior to conviction. The three evils this provision is
designed to prevent are: loss of liberty, loss of reputation,
and harm to the defendant’s ability to defend herself at trial.
A person is not “accused” until formal charges are filed, nor
is she “accused” between the time charges are dropped and
new charges are filed. The “speedy trial” clock does not
tick unless there are outstanding charges.
In practice, complicated medical trials require a long
period of preparation. Attorneys routinely ask for, and receive,
continuance after continuance. Legal proceedings drag on
and on, especially when cases are complicated and require
multiple expert witnesses. Many shaken baby trials finally take
place between two and three years after the baby’s collapse.
Defendants in custody (jail) generally get faster trials than
those out on bail. Trials may be scheduled and then canceled,
rescheduled and canceled again. For the defendant and her
family, the emotional roller-coaster can be so stressful and
T
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discouraging that they begin to think ANY resolution would be
better than endless limbo. Wrote one defendant:
It has been almost three years since this all began and we
still haven’t had our day in court. Who knows when we
will go to trial? Our state is in a financial crisis and has
already suspended jury trials once.
You must be patient. Stay in regular touch with your
attorney so you know what is happening and what is supposed
to happen next. Things are moving along, albeit at glacial
speed. Some of those things might make a critical difference!
Eventually, the time will arrive for a trial. A few weeks
beforehand, a pretrial conference will be held between the
judge, attorneys and defendant, to resolve any remaining
questions of law. Evidence and witness lists will be exchanged.
Procedural issues will be discussed. Plea bargains may be
negotiated. The judge will rule on motions submitted by both
attorneys, including final motions to challenge admissibility of
evidence. Ideally, all evidentiary challenges should be resolved
prior to trial, so that juries can focus on as small an area of
conflict as possible.
Stages of a Trial
In summary, here are the stages of a trial:
1. Jury selection, voir dire.
2. Prosecutor’s opening statement.
3. Defense opening statement.
4. Prosecutor’s witnesses and evidence.
Direct examination, cross-examination, redirect, recross.
5. Defense witnesses and evidence.
6. Prosecutor’s closing argument.
7. Defense closing argument.
8. Prosecutor’s final statement.
9. Charge to the jury: jury instructions.
10. Deliberations.
11. Verdict.
12. Sentencing (may be delayed until a later date).
Jury Selection
The jury system puts a ban upon intelligence and honesty, and a
premium upon ignorance, stupidity and perjury. —Mark Twain
Jurors are selected from a jury pool, a group of citizens
assigned to report for jury duty. Some classes of individuals,
such as police officers, may be exempt from jury duty.
Jurors may be asked to fill out a form with basic information
about themselves, copies of which will be given to the judge and
attorneys for use in voir dire. Voir dire (literally “speak truth”)
is the process of questioning prospective jurors to determine if
they are able and willing to listen carefully, without prejudice,
to the evidence in the case. Although practices differ somewhat
in different locations, the judge may ask certain questions of
the whole group, to be answered by a show of hands. He may
dismiss some people because they know a person connected
with the trial, or because there is a situation in their lives that
would make serving on a jury a great hardship (mothers who are
sole caretakers of young infants, for example). Attorneys may
ask questions of individual jurors to try to ascertain bias.
Any number of jurors may be dismissed “for cause”
meaning for a stated reason. A certain limited number of
“peremptory challenges” are also allowed, so attorneys can
reject people without stating a cause, for any reason whatever.
For criminal trials, 12 jurors are generally chosen, plus
one or two alternates who must sit through the trial, listen to
all evidence, and deliberate if a regular juror becomes ill or
otherwise unable to serve after the trial begins. In order to
ensure that all jurors, including alternates, are motivated to pay
close attention, the 12 who will actually deliberate may not be
selected until all evidence has been presented, at which time
alternates are dismissed from service.
In the United States, jury selection is considered one of
the most important aspects of a trial. There’s a saying that in
England, the trial starts when jury selection is over, but in the
United States, the trial is already over. A whole industry has
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developed in America, trying to forecast what type of juror is
most likely to vote guilty or not guilty.
One jury consultant advises “humanizing” the defendant,
perhaps by requesting that she be allowed to talk to prospective
jurors during voir dire. Research shows that jurors find it easier
to convict persons with whom they have never personally
interacted. Another consultant asks jurors the question, “Can
you look [the defendant] in the eyes and say, ‘[Defendant’s
name], I can give you a fair trial’?” Anyone who seems
uncertain is dismissed.
In one case, the mother of the baby had lied to the police
and two grand juries about where her children had been the day
before the baby collapsed. She said they had been with an aunt
when in truth four children under nine years of age had been
home alone all day. The prosecutor, in order to minimize this
disadvantage, asked every juror during voir dire whether they
would consider the reasons the baby’s mother lied before they
decided she could not be trusted. All jurors selected promised
they would. (Prosecutors excuse perjury by their own witnesses
but seize on the tiniest inconsistency or change in a defendant’s
account to “prove” lying and hence guilt.)
Scientific jury selection is controversial. If it actually
works, then facts and evidence are less important in determining
verdicts than the characteristics and biases of jurors. That is a
troubling possibility.
Basically, we ensure a fair jury by ensuring an ignorant jury.
—Prosecutor Brian Holmgren
The death of a baby is so emotional that it can be difficult to
find 12 impartial jurors. In one shaken baby case, a mistrial was
declared after 50 of 60 potential jurors asked to be excused. On
the next attempt, potential jurors began weeping as soon as they
learned of the subject matter.
Once a jury has been selected, the rest of the potential jurors
are dismissed. The judge talks with jurors about their solemn
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responsibilities. Jurors are asked to listen attentively, withhold
judgment until ALL evidence has been presented, avoid talking
about the case with anyone until deliberations begin, and refrain
from reading or watching media coverage of the case. Some
judges allow jurors to take notes or submit written questions,
which the judge can put to a witness.
The jury is sworn in with an oath similar to this: “Do you
solemnly swear or affirm that you will consider all the evidence
in this case, follow the instructions given to you, deliberate
fairly and impartially and reach a fair verdict?” In the past, the
words “so help you God” followed that question.
If both attorneys and the judge concur, jurors in a Shaken
Baby Syndrome case may be provided with a packet containing
such information as a glossary of medical terms (subdural
hematoma, retinal hemorrhage, cerebral edema, etc.), and
perhaps diagrams of the parts of the brain and eye for reference
while doctors testify.
People in the Courtroom
The role of the judge during a trial is to administer and
“referee” the debate between the prosecuting and defense
attorneys—to make sure attorneys follow rules and to decide
questions of law that may arise during the trial. Prior to
deliberations, the judge will give the jury specific instructions
that they must follow while deliberating and reaching a verdict.
The court clerk administers an oath to prospective jurors and
witnesses, as well as keeps track of physical exhibits entered
into evidence. The bailiff keeps order, calls witnesses, takes
care of the jury and maintains order in the court. The court
reporter records word for word all testimony, objections and
rulings. Most proceedings are taped.
In the courtroom is the bench, where the judge sits. The
clerk’s desk is nearby, close enough to allow him to hand papers
to the judge. There is a witness box and a “jury box” that
usually contains 14 chairs. The prosecutors sit at one table and
the defendant with her attorneys at another, both facing the jury.
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There is seating for observers. The Sixth Amendment
guarantees a public trial. It is a good idea to ask as many
supporters as possible to attend the entire trial. In some cases,
supporters have flown in from other states, leaving standing
room only in the courtroom. People who are going to testify are
not allowed to attend trial proceedings until after their testimony
has concluded. Anyone who will not be called to testify can sit
in on the entire trial.
Shaken Baby Syndrome cases often draw dozens of
supporters for each side, especially if the defendant was a
babysitter. In some cases, now-adult children who were once
under the care of an accused babysitter attend the trial as
supporters and testify as character witnesses. That has been
mentioned by jurors as an important factor in their decision.
If the child lived but is handicapped, he or she might be
brought into court in a wheelchair to elicit sympathy from the
jury. In some cases, family members and supporters of the
alleged victim have worn buttons with pictures of the deceased
child, or T-shirts with the child’s photograph and the words
“Never Shake a Baby.” While this would seem prejudicial, the
Supreme Court has ruled it is allowable.
Your supporters should dress professionally and sit quietly,
with no gum chewing, laughter or comments that jurors might
interpret as a failure to recognize the gravity of the alleged
offense. If you are not in custody, your supporters can surround
you to shield you from media photographers as you enter and
leave the courtroom. The judge may or may not allow reporters
and cameras into the courtroom.
What to Wear
As a defendant, you enter the courtroom with several strikes
against you despite the supposed presumption of innocence.
Strike one: You were arrested. Arrest is perceived as probable
guilt. Strike two: You have a defense lawyer sitting next to
you. Defense lawyers help guilty clients and are perceived as
being less than honorable. Strike three: The people testifying
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against you are uniformed police officers and respectable
doctors—professionals generally perceived as credible. Strike
four: If you confessed (or the prosecution claims you did), the
jury will have difficulty understanding why you ever said you
were guilty of such a horrible offense.
You want everything you can control to work in your favor
rather than against you. Your freedom is at stake. Your comfort
in court is not nearly as important as jurors’ perceptions of you.
You will never have a second chance to make a first impression.
Jurors are not supposed to make decisions based on your
appearance, but they are human and they do. If you are in
custody, you may be required to wear prison garments or
handcuffs. Your attorney should make every attempt to secure
permission for you to wear your own clothes during the trial.
Don’t wear just anything. What you wear can influence the
jury. Here are suggestions, based on attorney recommendations:
Dress simply and conservatively, in an outfit that makes
you look respectful and trustworthy. Boy (or girl) next door
is a good look, with the advantage that “next door” in one
community may be different than “next door” in another.
Subdued colors are recommended, nothing bright or showy.
No hats, T-shirts or hooded sweatshirts. Wear a shirt with a
collar. Nylons should be skin colored. Men’s ties should be
conservative. Clothing should be clean and pressed. Shoes
should be polished with no scuffs. No flip flops or untied shoes.
Flats or low heels in neutral colors, with closed toes, are best.
Expensive, frivolous, fancy or excessively casual clothing
may prejudice jurors against you, even without their being
consciously aware of it. Avoid wearing denim, sleeveless shirts,
short skirts, leggings, or jingly jewelry. Do not wear expensive
jewelry or anything showy. Understated and classy is best.
If you have tattoos or piercings, cover them with clothing if
possible. Be sure your belly button and underwear are covered.
Do not wear dark glasses, even prescription glasses. The
jury won’t know why you’re wearing them and they might infer
you have something to hide. Nothing should obscure your face.
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If your hair is long, consider pulling it back. Get a conservative
haircut about two weeks before trial, so your hair doesn’t look
too freshly cut. Brush your teeth and use mouthwash. Be clean
and neat, with hair and nails trimmed. Remove any bright nail
polish. Men should generally be clean shaven. Women should
wear conservative makeup. No bright colors.
As far as your demeanor, ask your attorney for advice. One
defendant advises that you be yourself. “My attorneys told me
to avoid crying, but when they polled the jury, they said they
convicted me because I didn’t cry and it made me look guilty.
It’s really not about the evidence or lack of it.” If you cry, quiet
tears are best. Your demeanor should be soft, attentive, and
respectful. Said one defendant on the importance of dressing
well, “I had the naïve belief that my innocence would be
glaringly obvious.”
Court is not about the truth. It’s a show. Two acting companies
come in. They put on their performance. And at the end the
audience applauds louder for one than the other, the audience
being the judge or jury. —Dr. Alex Levin
Opening Statements
The prosecutor presents an opening statement, then the
defense attorney. Very often, prosecutors place a very large
photograph of the smiling, healthy child where it is always
visible to jurors. There may also be a large photograph of the
baby in the hospital shortly before death. Some prosecutors
show endearing videos or slides of the child. In one trial, a
video of the little girl walking and running in high heels was
shown. Said one defendant, “It was like a Hollywood sham.”
The prosecutor gives an overview of facts she intends to
prove through testimony and evidence. The defense attorney
will likely point out weaknesses in the prosecutor’s case and
perhaps offer alternate theories to explain what occurred.
Although the formal, legal burden of proof rests with the
State, research has shown that jurors, as well as judges, use
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a “narrative frame” (a “normal” crime scenario) to organize
information. This is especially true for jurors who watch a lot of
legal dramas on TV. The general “story”—made up of popular
images and assumptions—may overwhelm the unique facts
and weaknesses of a specific case. Jurors may choose the most
plausible story, effectively placing the burden on the defense to
prove a more likely story than the prosecution’s.
Witnesses and Evidence
The prosecutor must prove that: (1) the baby’s death was
caused by a criminal act, and (2) the defendant is the individual
responsible for that act. Sufficient evidence must be presented
to change the presumption of innocence to a near-certainty of
guilt (complete certainty is rarely possible). To meet the burden
of proof, the prosecutor must introduce evidence that tends to
point to guilt and negate evidence that tends to point away from
guilt or establish doubt.
Before testifying, each witness is sworn in with an oath or
affirmation. Rule 603 of the Federal Rules of Evidence states,
“Before testifying, every witness shall be required to declare
that the witness will testify truthfully, by oath or affirmation in a
form calculated to awaken the witness’ conscience and impress
the witness’ mind with the duty to do so.”
In days of old, witnesses swore on a Bible, effectively
calling down the judgment of God on themselves if they were
not truthful. Quakers at one time were not allowed to testify
because they refused to take oaths, believing it forbidden by
the Bible. Some Quakers were even sent to prison for refusing
to swear on the Bible! That changed in 1961, when the U.S.
Supreme Court ruled it is unconstitutional for a court to require
an oath to God.
Where is the security for property, for reputation, for life, if
the sense of religious obligation desert the oaths which are the
instruments of investigation in courts of justice?
—George Washington
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In a criminal trial, prosecution witnesses are called first,
then defense witnesses, although exceptions are sometimes
made to accommodate the schedules of expert witnesses.
Prosecutors question their own witnesses in direct examination,
then defense attorneys cross-examine those witnesses in
an attempt to impeach them. “Impeach” means call into
question the credibility of a witness or evidence. After crossexamination, the prosecutor may ask a few more questions on
“re-direct” and the defense can ask a few more on “re-cross.”
Rarely, a witness may be recalled to testify again.
All evidence must be introduced through witnesses,
although in some jurisdictions an attorney can request that
the judge “take judicial notice” of a scientific publication.
Evidence must be relevant as well as reliable. “Relevant
evidence” according to the Federal Rules of Evidence, is
evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.
Witnesses must answer only the questions put to them, as
simply and directly as possible. They may not elaborate. They
should not read from their reports.
The testimony of child eyewitnesses is sometimes admitted.
Children may be allowed to testify by closed circuit TV or
videotape. Spouses cannot be required to testify against each
other, and are generally not considered credible if they testify
for each other.
The witnesses generally called by the prosecution in shaken
baby cases are:
• 911 operator, to introduce the 911 tape into evidence
• Emergency medical technician(s) or first responder(s)
• Police investigator(s)
• Baby’s pediatrician
• Baby’s parents, if defendant is a babysitter
• Emergency room doctor
• Radiologist
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• Pediatric ophthalmologist
• Forensic pathologist, coroner or medical examiner
• Expert medical witnesses
Chain of events. The prosecutor will attempt to establish
a chain of events leading up to the baby’s collapse. Witnesses
will be called to testify as to what happened when.
Demeanor. Witnesses are sometimes allowed to testify as
to whether the defendant’s demeanor was “appropriate” under
the circumstances. This is used to establish that a witness is
lying, had guilty knowledge or is hardhearted and uncaring. In
one case, the 911 operator said the defendant was “nonchalant”
when he called. A caretaker who cries is guilty. A caretaker
who doesn’t cry is guilty. A defendant who is hysterical is
guilty. A defendant who is calm is guilty. You can’t win.
Empirical studies prove few people are able to make effective
use of demeanor in deciding whether to believe a witness.
Delay in seeking medical treatment. The prosecution will
try to show that your response to the situation indicates guilt. If
you called anyone before calling 911 or drove the baby to the
hospital yourself, it will be used against you. If you didn’t take
the baby to the nearest hospital, it will be used against you, even
if your pediatrician suggested a more distant hospital.
Irritation with the baby’s crying. The theory holds that a
person becomes frustrated and enraged at a baby’s crying and
“snaps”, shaking the child violently. The prosecution may
attempt to find witnesses who will say the baby irritated you or
you didn’t like him. If the baby was sick, even with something
that might explain his collapse, it will be suggested that a sick
baby cries more and is therefore more likely to be shaken.
Healthy baby. The baby’s pediatrician will be called to
testify that the baby was healthy and “fine” with no major health
concerns. Whoever cared for the baby prior to you will be
called to testify that the baby was “fine” when you received him.
A little sick, maybe, vomiting on and off for several days, but
nothing serious. “Fine.” Cross-examination should reveal that
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one person’s definition of “fine” is not another’s. If you said the
baby was “fine” earlier in the day, that will be used against you.
Baby’s mother. If the defendant is a babysitter, the
prosecutor will call the baby’s mother to testify that the child
was fine. In Margie’s case, the mother was a difficult witness.
She said, again and again, “You’re confusing me.” “I don’t
remember.” “All I know is my son was fine….”
Expert medical witnesses. Doctors will testify about their
medical findings and diagnosis. Doctors have used computer
generated animations to show jurors what supposedly happens
when a baby is shaken. Some doctors have brought in large,
take-apart models of the eye and brain to instruct jurors.
They will say “abuse cannot be ruled out” and use the term
“consistent with.” That means “most likely” rather than
“beyond a reasonable doubt” but jurors tend to assume that a
doctor’s confident opinion is true. Doctors say again and again
in these trials, “This is the worst case of child abuse I’ve ever
seen.” “This was one of the worst attacks on a child I’ve seen in
30 years of practicing medicine.” And the like.
Men have a tendency to believe what they least understand.
—Ancient proverb
Doctors certified as “experts” will be allowed to testify as
to their opinions on timing and degree of force. Estimates on
timing will conform to the amount of time you were with the
child. If you had him for 5 hours, the estimate will be “certainly
within 4 hours.” If you had him for 15 minutes, the estimate
will be “no more than a few minutes.”
Some prosecution experts enact what they think happened.
One doctor slammed a doll several times onto the courtroom
floor and then a chair. The defendant and courtroom visitors
began crying. Another said, “Blood is found only when the
brain is shaken vigorously.” He shook a doll forcefully and
hit its head repeatedly on a desk. Some experts refuse to
demonstrate, saying that no experiments have been done to
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show how much force is necessary. They nevertheless opine
that the force is “massive.” Prosecutors themselves sometimes
demonstrate with a doll during their closing argument.
Experts will say, “The medical evidence is overwhelming.”
They’ll call it a “classic” “textbook” case of Shaken Baby
Syndrome and say there can be no other possible cause for the
symptoms. The injury pattern alone is diagnostic. “I would
consider these injuries inflicted head injuries until proven
otherwise.” If there are old injuries, the suggestion will likely
be made that it indicates a “pattern of abuse” although the
doctors will say only the final shaking had anything to do with
the child’s collapse. The others were less intense, several small
shakings building up to a climax. The inference will be that all
prior shakings were committed by the defendant.
Some prosecution experts, including Sir Roy Meadow and
Dr. Charles Smith, come across as very credible. Said Sally
Clark, after Sir Roy Meadow’s testimony against her, “If I didn’t
know I was innocent, I would have believed me guilty!”
Rarely, “jailhouse snitches” are brought in to say you
confessed to them in jail. Why this is allowed is a mystery,
as it has led to proven wrongful convictions. Some criminals
specialize in exchanging such testimony for an earlier release
date or the dropping of charges against them. Do not reveal
to cellmates why you’re in jail, if you can avoid it. Find other
topics of conversation.
Witnesses generally called by the defense are:
• The defendant.
• Character witnesses.
• Expert medical witnesses.
The defendant. Said one mother of her eagerness to testify,
“My innocence exudes from me and will be confirmed when
they hear me tell my story; my innocence will be obvious.”
Jurors expect to hear testimony from the accused in shaken
baby trials. Some verdicts turn on that testimony, not always
the right way. If jurors perceive the defendant’s quiet courage
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and vulnerability, it can help them think of her as human, as
innocent.
Cross-examination can be brutal:
Prosecutor: “Did you ever say to the investigators, “I
didn’t shake him?” No. “You never said that.” No.
“You never told the police you didn’t shake him, did
you?” No. “Had you done that to other kids before?”
Notice the way the last question was phrased. Even a “no”
answer indicates guilt. She hadn’t done it to other kids before,
just this child this time.
Prosecutor: “Are you saying this baby died for no reason?”
Defendant: “I don’t think he died for no reason. But he
did not die because I shook him.”
One defendant kept her emotions in check until her attorney
asked her to look at a photo of the baby. She broke down in
tears and said, “I never hurt the baby in any way. My heart
aches for his parents. I can’t imagine what they’ve gone
through to have this perfect little baby taken away from them.”
Several jurors were on the verge of tears.
Information about the criminal or violent history of an
alternate suspect is not admissible. That person is not on trial.
Police had the duty to investigate and find the correct suspect.
Unfortunately, they may have done a perfunctory investigation.
If a possible alternate abuser is called as a witness by the
prosecution, the defense can cross-examine, but jurors may not
take kindly to the implication that a grieving mother might have
hurt her own baby. Only the defendant is on trial. Evidence
about other people is considered irrelevant to the case at hand.
Character witnesses. Some defendants have asked parents
of other children they cared for testify on their behalf, or nowgrown children they babysat years ago. This can be quite
persuasive to jurors.
Expert witnesses for the defense. Defense experts will have
assisted the attorney in forming a theory of the case and in
preparing medical exhibits. Defense experts may challenge the
theory of Shaken Baby Syndrome, the diagnosis as it applies to
this case, the estimates of timing, or the biomechanics.
On cross-examination, the prosecutor will ask experts how
much they are being paid for their testimony. The correct
answer is they are not being paid for their testimony; they are
being paid for their time. If a defense expert donated time, he
may be discredited as a biased advocate. If he was compensated
for his time, he will be called a “hired gun.” You can’t win.
An aside: In the Louise Woodward trial, there was a lot of
confusion as to which was the right side of the brain and which
was the left on CT scans and X-rays. This information should
be clearly marked on all exhibits.
Defense Motions to Dismiss
The defense can move to dismiss charges for lack of
evidence at the pretrial conference, before the trial begins, after
the prosecution has finished presenting evidence, and at the
close of the trial, before closing arguments. The judge rarely
grants this request, but in shaken baby cases, it can succeed.
The judge in one Shaken Baby Syndrome trial was told on
the second day of the trial that the prosecution had no other
evidence to present. He directed the jury to return a not guilty
verdict, saying expert testimony alone is not enough to sustain a
guilty verdict.
Closing Arguments
The prosecutor did such a good job in my case that when he
got through closing arguments, I said to myself, “I’m guilty!”
He did that good of a job. They can manipulate, they can
manufacture evidence, they can fabricate it so well that you can
almost believe you’re guilty yourself. —Juan Melendez
The closing argument is the final opportunity for prosecutors
to pull all the evidence together and convince jurors to convict.
One prosecutor urged the jury to break the case into three parts:
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medical evidence, the defendant’s changing statements, and the
dynamics in the home leading up to the baby’s death.
Here are some statements from closing arguments by
prosecutors in shaken baby trials:
• There’s nothing confusing about this case because there was
one, and only one, person with that baby when he became
symptomatic.
• Only she knows exactly what happened to this child and,
unfortunately, she chose to lie.
• This was no negligent homicide. This was a reckless death
performed by a man who could not control himself. This
was murder as sure as if he had used a knife or gun.
• The medical evidence was overwhelming. The mother
brought a healthy baby to the day care center and six hours
later picked up a child who was in a coma.
• This is not about emotion. We’re not here to demonize.
We’re not here to determine whether he is a good person,
but what he did. We’re not saying he didn’t love his child.
He acted in frustration that we all feel when we’re dealing
with a newborn. It doesn’t take much.
• We have a dead baby here. Someone has to be responsible.
Remember that trials are theater. Attorneys are actors, and
are not above using emotional pleas that bring a jury to tears.
Evidence can be stretched. In one case, the babysitter had a
migraine headache the day before and did not babysit. The
implication was made that the following day, when she did
care for the child, the migraine caused her to snap, though no
evidence existed that she had a migraine that day.
Young fathers and babysitters will be presented as criminally
responsible for delaying treatment and for not recognizing
symptoms of head injury that doctors often miss—flu-like
symptoms, lethargy. This is because they are expected to know
about the presumed severe traumatic event that occurred just
prior to the manifestation of those symptoms. Even a prosecutor
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in one case admitted that the defendant could not rightly be held
responsible for not telling doctors what happened unless she
knew what happened to cause the injuries, unless she was guilty.
Prosecutors will reinforce in the closing argument that
defense experts are only interested in money, despite the fact
that they may have waived their fees because they are convinced
the defendant is innocent.
Part of a defense closing statement follows.
What is the state’s proof? That she was with the baby
when he stopped breathing? That she can’t explain what
happened to him? Ladies and gentlemen, that is not proof
beyond a reasonable doubt!
Unless defense experts are fairly certain they know what did
cause the death, the defense closing statement usually rebuts the
prosecution theory point by point, highlights weaknesses of the
theory, and reviews evidence pointing away from guilt.
If a person’s only claim to innocence is their statement that
they are innocent, that should be enough unless evidence (not
theory or opinion) proves guilt beyond a reasonable doubt. In
the real world, the side with the best story often wins, even if
that story is only slightly supported by known facts.
The prosecutor has the last word to the jury.
An innocent person always holds out hope that the system will
work. That’s the naiveté.
Jury Instructions
After closing statements, the judge instructs jurors as to
what they are to do next. Many appeals are based on improper
jury instructions, so this is an important part of the trial. The
judge will inform jurors of laws that are alleged to have been
broken and the state of mind necessary to support the charge
in this case. In nearly every state, judges are prohibited by the
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constitution from commenting on the weight of the evidence or
the credibility of witnesses.
Jurors recess to a special room to deliberate—to engage
in long and careful consideration of facts in order to reach a
verdict of guilty or not guilty. In years past, juries were often
sequestered. Sequestering means isolating jurors from outside
influences until a verdict is reached, usually by isolating them
in a hotel. Sequestering began with the Boston Massacre trial
in 1770. Until the 20th century, sequestering of juries in the
United States was mandatory. Now it is more common for
jurors to promise to shield themselves from outside influences.
Only in high-profile cases are jurors sequestered in modern
America. The O.J. Simpson jury was sequestered for 134 days.
The Fully Informed Jury Association has a Juror’s
Handbook on their web site (http://flja.org/). They recommend
that supporters of an accused person make a strong effort to
educate potential jurors of their responsibilities and rights by
calling talk show hosts, writing letters to the editor, leafleting, or
advertising, as time and money permit. Do not refer to the case
in point without permission from the attorney. The web site
has a 14-page Jurors’ Handbook, which has been handed out by
some supporters of defendants to prospective jurors on the day
of jury selection. Supporters should show up at the courthouse
at least half an hour before jurors are due to arrive. The flja web
site has brochures and other publications for sale.
Leafleters are sometimes hassled by authorities, but no
one has yet been convicted for passing out fully informed jury
brochures. In 1993, the United States Supreme Court ruled that
the sidewalks around a courthouse are a “free speech zone.”
Supporters who take on this task should perhaps avoid attending
the trial itself in order to maintain neutrality. The brochures
provide general information applicable to anyone who serves on
any jury. The purpose is to educate jurors, not advocate for a
particular verdict in a particular case. Better-educated jurors are
better jurors, more likely to reach a correct verdict.
When the Verdict’s Read
I’m afraid that it’s generally true that the more emotion you
have, the less evidence you need.
—CBS commentator regarding Timothy McVeigh case
A
fter jury instructions, deliberations begin and there
is nothing more a defendant can do but pray. Your
life and future rests in the hands of 12 citizens. Pray that
they think clearly and rationally, that emotions don’t cloud
their thinking, that they discern what is true, and that each
individually will have the courage of his or her convictions.
Prosecutors bemoan the fact that so many juries acquit.
They claim a defendant in a shaken baby case has an advantage
from the very beginning. Defense attorneys express surprise
that so many juries convict on such flimsy circumstantial
evidence. There seems to be a complete disconnect with regard
to how each “side” perceives truth and reality.
Hung Juries
In United States criminal trials, all 12 jurors must agree
on either guilt or innocence. If they cannot reach agreement,
a mistrial due to a “hung jury” is declared. After a mistrial,
prosecutors may drop the charges (rare), offer a plea bargain, or
try the case again before a different jury.
English law, in contrast, allows for a majority verdict. In
November 2007, English childminder Keran Henderson was
convicted of shaking a baby by a 10-2 vote of the jury. Said one
dissenting juror, “I will never know whether she did it or not.
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If I could live with the verdict, I wouldn’t talk here now, but
my whole instinct tells me that she didn’t commit this crime.”
Said the foreman, “It was the difference between the scientific
evidence and the character of the accused. Who caused the
death, or whether anyone did, is not proved.” Both agreed that
the evidence presented was “possibilities and probabilities”
rather than “hard evidence.” How can ordinary lay people make
a right and fair decision when experts themselves disagree?
In the United States at about the same time, babysitter
Veronica Salcedo’s first jury hung with a vote of 10-2 for
conviction. The judge sent the jury back to deliberate several
times, even after two jurors collapsed in tears. A mistrial was
eventually declared. Prosecutors tried the case before a second
jury, which hung with a vote of 9-3 for acquittal. The case was
not tried a third time. The defendant was deported to her native
Mexico.
A mistrial is better than a conviction, but may mean you
will have to pay your attorney and experts for a second trial. In
some cases, jurors who voted for acquittal in a first trial have
assisted the defense in the second trial.
One jury, hopelessly deadlocked from the start, sent a note
to the judge that they did not want to deliberate more. Based on
the evidence she had heard, the judge declared the defendant not
guilty. Said one juror, “A lot of people on the jury thought she
probably did it, but they didn’t think the prosecutor proved it
beyond a reasonable doubt.”
The Challenge for Jurors
Shaken baby cases are based almost entirely on medical
testimony. The average jury is not capable of evaluating
competing medical claims and rendering a just verdict.
Many jurors have difficulty even staying awake during the
complicated medical testimony. At one trial, prosecution
experts said they were pretty sure the child died of Shaken Baby
Syndrome but couldn’t totally rule out alternatives. They left
the decision to the jury, which convicted in just two hours.
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Said neuropathologist Dr. Waney Squier, “I spend all my
life reading papers and studying my field of expertise. If I have
to put that much work in to keep informed, then how can 12
people off the street have a hope in hell of understanding?”
What Persuades Jurors
Prosecutors complain that jurors acquit because they do
not want to believe that a parent would kill their own child.
Defense attorneys complain that social pressures demand
convictions in child abuse trials, whether or not evidence
supports the accusation.
During the ritual sex abuse hysteria of the 1980s and 90s,
there were virtually no acquittals. Ironically, it is much easier
for an innocent person to be convicted of a heinous crime such
as child abuse or murder than of a minor crime such as theft.
Said one juror in a shaken baby trial, “There’s a lot of blood
here. Somebody has to pay.” Whether that somebody is the
correct “somebody” may be of secondary importance.
Considerations other than actual evidence may carry undue
weight. Jurors want a story that connects the dots and explains
the facts. Faced with a choice between a single plausible
narrative (prosecution) and an variety of possibilities that
challenge it (defense), jurors tend to convict. If the defense has
a convincing alternate story, acquittal is possible.
Research has shown that typical jurors hold defense
attorneys to higher standards than prosecutors. They are more
tolerant of “mistakes” and misconduct by prosecutors. Said
John Grisham in his nonfiction book, The Innocent Man, “Jurors
will convict if they can be adequately shocked.”
Jurors consider things they are not supposed to consider.
Some things that influence jury decisions toward conviction are:
• A defendant’s appearance, attitude, and behavior.
• Prior acts of the accused or alternate suspects, if known.
Jurors are not supposed to be informed of any prior acts or
criminal history, of the defendant or anyone else. It greatly
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influences their judgment. A University of Chicago study
showed that jurors acquitted in 42% of cases where they
knew there were no prior convictions and only 25% of cases
where they did not have that information. When prosecution
evidence was weak and circumstantial, there was a 65%
acquittal rate when jurors knew there were no prior
convictions compared to a 38% acquittal rate when they did
not know.
• Statistics. Statistics have ZERO applicability in any
individual case. Shaken baby cases may wrongly turn on
expert statements that natural causes are statistically rare.
• Groupthink. Leading jury researchers at the University of
Chicago found that, “In an ambiguous situation, a member
of a group will doubt and finally disbelieve his own correct
observation if all other members of the group claim he must
have been mistaken.” This can work for or against you.
• Witnesses’ motives not to tell the truth. Since defendants
have a motive to lie and doctors presumably don’t, this often
works against a defendant.
• Retinal hemorrhages. “They said it came down to the eyes,”
said one prosecutor. The jury originally favored innocence
but eventually decided that retinal hemorrhages were one
thing that would have manifested immediately and could not
have been “percolating” along for hours.
• Assumed credibility of doctors and police. Research shows
that most jurors inherently believe official witnesses to be
credible and reliable. Average citizens tend to assume that
police only arrest people who are guilty, and that “where
there’s smoke, there’s fire.”
• “Just world thinking” is a tendency to believe that people
who suffer, especially those already devalued, must deserve
to suffer. Such thinking is commonplace among those who
perpetrate genocide.
• Emotional wildfires. Because the alleged SBS “victim” is a
baby, people’s emotions can spin out of control and acquire
a momentum of their own. Instead of subsiding with time,
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they intensify, to the point that people uncritically seize
on anything that fuels their righteous indignation. In an
emotional inferno, people act to intensify negative emotions
rather than quell them. Fear turns to anger, anger to fury,
disgust to revulsion, distress to anguish. Emotional wildfires
consume anyone with whom they come in contact—
strangers, loved ones, the self. They eventually die down,
but by that time the damage is done. Every witch hunt and
genocide in history has involved emotional wildfires. Some
people are more susceptible to them than others. A jury
in an emotional wildfire will be unable to judge rationally.
Jurors will hear and believe only what fuels the fire.
Get someone’s emotions going, and logic will soon be forgotten.
So will decency and moral responsibility.
—Erwin Lutzer, author of Why Good People Do Bad Things
Some things that may influence jury decisions toward acquittal:
• Police behavior during questioning or interrogation.
• The defendant’s testimony. “She was very convincing. She
appears to be a very honest and kind individual.”
• The behavior of emergency room doctors. “A lot of it came
down to them making their decision within 13 minutes of
that baby getting to the hospital.”
• Character. “Everybody testified that he was loving to that
baby; he would never hurt that baby.” “It was his character.
I just couldn’t believe he could have harmed his child.”
• Information not presented at trial. In one shaken baby case,
two of the jurors knew people who had bumped their heads
and died days later, after feeling “fine” in the interim. In
another case, the wrong kidney had been removed from one
juror due to a medical mistake. Doctors, this demonstrated
to other jurors, are not infallible, however well-intentioned.
• Prosecution is unable to construct a convincing “story.”
“The prosecution didn’t have a clear idea of where they
were going. They should have had their ducks in a row.
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They never presented us with a plausible sequence of events
to explain everything.”
• Confusing nature of the medical testimony. “You had to
throw all the medical testimony out. None of the jurors
understood the medical testimony. None of the jurors was
a doctor, and you have conflicting testimony. There was
so much of it. In my heart, I couldn’t imagine this woman
doing that. It was almost like a witch hunt right from the
beginning.”
• Lack of real evidence. “I think, speaking for everyone, it
was just a tragic accident. We felt for the family; we felt
sorry for what happened, but we just could not convict
him of anything. We just didn’t have enough evidence.
It doesn’t make sense to put somebody behind bars that
doesn’t deserve to be there.” In another case, the presiding
juror said, “It was all reasonable doubt.”
• Lack of investigation of an alternate suspect. “You have
two parents and one abused child. It’s almost like they
were hiding the mother. Why?” In some cases, however,
jurors lacking information about an alternate suspect have
convicted, not wanting the baby’s death to go unpunished.
Sometimes jurors see very obvious truths that have eluded
highly paid and distinguished experts. Sometimes, plain old
common sense wins the day.
Compromise Verdicts
In ambiguous cases, jurors often reach a “compromise
verdict.” Instead of convicting for murder, they’ll convict for
manslaughter. That way, a possibly guilty person doesn’t get
off completely and a possibly innocent person doesn’t receive
a life sentence. Some defendants, including Louise Woodward,
have refused the option of allowing jurors to choose between
the crime charged and “lesser included” crimes, fearing that
the jury would reach a compromise verdict given a choice.
Unfortunately, that can backfire. Said one juror, “I felt like we
were trying to fit a square peg into a round hole. We didn’t want
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her to walk or to not make a decision and force a mistrial. But
I just don’t see how I could say she intended to kill the child.”
This juror was persuaded to vote guilty. The babysitter was
convicted of first degree murder and sentenced to 35 years in
prison. When jurors are not sure, the law says they must acquit.
Sometimes they are not comfortable doing that. They are not
fully convinced the defendant is innocent. In a criminal case,
even a high probability of guilt is not enough, technically, for a
guilty verdict. The offense must be proved beyond a reasonable
doubt.
In America, only two verdicts are possible, guilty and not
guilty. In Scotland, a third verdict is permitted, not proven. A
verdict of not proven indicates that the jury is not convinced the
person is innocent, but the evidence available does not prove
guilt beyond a reasonable doubt. A shadow remains on the
person’s reputation, but she is not sent to prison. The argument
against this system is that it allows jurors an easy out in difficult
cases. Not proven is a different type of “compromise verdict.”
“I am very pleased,” said one juror after a defendant
accepted a plea bargain during deliberations, “and I think the
rest of them are, too. They knew he was guilty and didn’t want
him to go free, but they also knew that some of these charges
were too severe for what he actually did.”
Response to the Verdict
The jury deliberated for less than three hours before convicting
me. When they read the guilty verdict, I wanted to get up
and shout, “Wait! You forgot to say not!” I thought it was a
mistake. I was so convinced I’d be found not guilty. I never
thought I’d be convicted on no evidence. —Juan Melendez
Hearing the verdict, no matter what it is, is a turning point in
your life. The nightmare will either be over, or just beginning.
Some juries deliberate for days in these cases, others for
just one or two hours. You can’t tell anything by the length of
deliberations. Sometimes all jurors agree right away, either
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for guilt or for innocence. Sometimes a jury is split and jurors
consume a great deal of time attempting to persuade (even
with threats and intimidation) those who disagree with their
conclusions. Sometimes a jury carefully considers the weight of
each piece of evidence and subjects it to critical inquiry.
In one case, a jury deliberated for 12 hours and then
acquitted. When questioned, jurors said they knew she was
innocent from the beginning. Asked why it took so long to
reach a verdict, they said, “Well, the DA told us there was all
this evidence, a confession, and so on. We spent the 12 hours
trying to find the evidence. The DA said the evidence was there,
so we thought it must be there!” After 12 hours, they were
absolutely certain it wasn’t there.
Two different juries, with the same evidence, can reach
opposite verdicts. In some cases of hung juries, jurors
convinced of the defendant’s innocence have donated money
and assisted defense counsel with the retrial. In one case, the
babysitter was acquitted at retrial. In another case, the sitter was
convicted and sentenced to 25 years to life. You never know.
If media has been covering the story, they will be present to
hear the verdict. This is emotional, real-life drama and it sells
newspapers (or motivates viewers to tune in). The media likes
to focus in on tears, cheers, applause, or emotional collapse.
Said one babysitter who was convicted: “I don’t remember
what happened from the time the sentence was read into the
record. I don’t remember anything, just numbness, complete
and utter numbness. I remember next being at my attorney’s
office and bursting into uncontrollable tears. I couldn’t stop
crying for nearly a week.”
Said the husband of a babysitter who was acquitted:
This past week, outside the births of our children, probably
encompasses the most intensely terrifying and beautiful
moments my wife and I have ever lived, and we are well
aware that it is God’s answers to your prayers, as well as
those of many others who rallied around us, that made
it so. Last night, April 22, at approximately 9:05 p.m., I
had the poignant and remarkably symbolic privilege of
standing to hear my wife declared innocent of all charges.
My lovely wife turned from facing the bailiff and our
lawyer to shine a tear-filled smile at me and our friends
and family. The courtroom seemed to fill with light while
only peripherally I was aware of a terrible cross between a
wail and a groan that emanated from the dark wave to my
left, like a storm cloud blown away by a sudden high wind,
without leaving a drop of rain.
In some courtrooms, spectators are forbidden on pain of
expulsion from showing emotion. Wrote the mother of one 27year-old defendant about hearing her son pronounced guilty:
The judge kept joking with the jurors, asking if they had
gained weight from the cookies she brought to them. She
talked to them about a barbecue, handed out certificates to
all of them, kept joking about restaurant coupons but yet we
were not allowed to show the slightest emotion. We were
warned that if we showed outburst emotions we would be
kicked out of the courtroom. We swallowed our pain until
I could not take anymore and ran out of the courtroom. It
seemed like a party to them, no respect for the pain all of
us were going through. To the judge it was more like a
parking ticket than seeing your child being crucified.
Either attorney may request to poll the jury. This means
the judge or court clerk asks each juror individually if he or she
agrees with the verdict, usually by asking the question, “Was
this then and is this now your verdict?” If a juror hesitates or
wavers in his answer, counsel may, at the conclusion of the
polling, request that the judge question that juror about his or
her reason for the hesitation.
Jurors are in this way held personally responsible for the
verdict. In one case, a juror called a friend the night after a
verdict of “guilty” and wailed, “I’ve convicted an innocent
man.” Too late. He was sentenced to 20 years because she had
acquiesced, against her conscience. Few jurors or judges have
enough strength or integrity to stand firm against a crowd.
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Judges May Overturn Verdicts
It is extremely rare for a judge to overturn a jury’s verdict,
but it has happened in several shaken baby cases. In the Louise
Woodward case, the judge reduced the charge from murder to
manslaughter after the verdict, sentenced her to time served, and
deported her to her native England. The judge in another case
granted a motion to dismiss, saying,
I am very troubled by the evidence here, and I have to ask,
‘Did the defendant kill the baby?’ … I’m thinking maybe
she did. It looks suspicious. But mere suspicion is not
enough. I must do as the law requires me to do. I suppose
it will be up to the appeals court to decide if I’m right.
In another case, a judge refused to make the jurors’ verdict
official. He was not convinced of the defendant’s guilt, in part
because of confusing and conflicting medical testimony. His
own research into Shaken Baby Syndrome raised further doubts.
Even if the verdict is “not guilty” life will never be quite the
same. Said one acquitted parent, “For our own peace of mind,
we are just wanting answers. What is so hard to deal with is we
still don’t know what happened to our baby!”
Another person said, “We just don’t have much energy. We
don’t have much stamina. We tire so easily.”
Shadows can remain, even after the best of outcomes.
Acquittal or exoneration may not clear your reputation. There
will always be people who continue to wonder, and whisper.
Some acquitted defendants have moved to a different state and
started a new life to escape the shadows.
Under our system, if you are found innocent, you are innocent
under the law. As I have often said, that doesn’t mean you didn’t
commit the crime. —Dale Volker
I
Guilty! Sentencing Considerations
t is my hope and prayer that no innocent person will ever
need to read this section. But I have to be realistic.
In some jurisdictions, juries participate in sentencing
decisions, sometimes by issuing recommendations. In most
jurisdictions, judges alone determine the sentence.
Mandatory Sentencing
Historically, judges had the prerogative to impose light
sentences when cases were close or questionable. A judge’s
decision to dismiss a case outright or overturn a jury’s verdict
is subject to appeal, whereas a sentencing decision is rarely
appealed. Recently, laws have been passed to limit judges’
discretion in sentencing.
Mandatory sentencing laws require that offenders convicted
for certain crimes must serve a minimum prison term before
becoming eligible for parole. The rationale, originally, was to
minimize the huge differences in sentencing from one judge
to another, especially for drug offenses. In practice, however,
power shifted to prosecutors, who have wide discretion in what
crimes to charge. Sentences in Shaken Baby Syndrome cases
range from probation to life without parole, and, rarely, even a
death penalty.
In 2001, some state legislatures began to rethink harsh
sentencing policies, in part because of overcrowded prisons,
budget constraints, and growing public pressure for reform. In
2002, however, the United States Supreme Court, in Harris
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v. United States, upheld the constitutionality of mandatory
minimum sentences. In 2004, the Court ruled in Blakely v.
Washington that judges may not increase a sentence based on
facts not admitted by a defendant or found to be true beyond a
reasonable doubt by a jury.
It has become popular for bereaved parents to channel their
grief into crusades to prevent any other child from ever dying
in the same way their child died. Probably the best known
initiative is “Megan’s Law” named after 7-year-old Megan
Kanka of New Jersey who was kidnapped and murdered by
a neighbor with two prior felony convictions. The law is
also called the Sex Offender Registration Act. It mandates
that every convicted sex offender supply authorities with his
name, photo, current address, current place of employment,
incarceration date, and nature of the crime. This information is
then made available to the public through searchable databases,
newspapers, or in other ways.
In the field of Shaken Baby Syndrome, there have been
initiatives to enact laws to increase mandatory sentencing
when the alleged victim is a young child. In 2000, the Maine
legislature enacted “Jake’s Law” named after infant Jake
Belisle who was allegedly shaken by a babysitter. It increased
mandatory sentencing guidelines in the event of a child’s death
from shaking or abuse. Jake’s mother, who worked tirelessly to
get the law enacted, originally asked for a mandatory sentence
of no less than 25 years for anyone convicted of shaking a baby.
New Mexico enacted a law in 2005 that requires a life
sentence for anyone convicted of child abuse resulting in death.
“Cynthia’s Law” in New York was named after 8-monthold Cynthia Gibbs, who was allegedly shaken by the mother’s
best friend. The law created a new crime, Reckless Assault on a
Child, with greater penalties for shaking a baby.
Similar initiatives are being pursued all over the United
States.
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Aggravating and Mitigating Factors
Aggravating factors can include:
• The child’s extreme youth and dependence.
• The refusal of a defendant to accept responsibility (by
continuing to claim innocence).
• Lack of remorse. (How can a person feel sincere remorse
for something she didn’t do?)
• Previous convictions or bad acts.
Mitigating factors can include:
• No previous convictions.
• Potential for rehabilitation.
• Parent’s pleas for leniency, if the defendant is a babysitter.
Other sentencing considerations may include:
• Nature of the circumstances surrounding the crime.
• Heinousness of the crime and desire to deter others from
committing it.
• Deterrence of the convicted person from future crimes.
Presentence Investigation
Judges often delay sentencing to a later date so a presentence
investigation can be conducted. Research is conducted into the
person’s background. Friends and supporters can write letters at
this time, pleading with the judge for mercy.
Letters from supporters should be sent directly to the
defense attorney, not to the judge. They should be worded
so the judge can determine that the writer is a person whose
opinion can be relied upon. Writers should state their name,
their family situation, their employment history, and whether
they themselves have ever been charged with a crime. They
should say how long they have resided in the area and how
long they have known the defendant. What is the nature of
their relationship with the accused? Have they spoken with her
since the accusations were lodged? What was the defendant’s
reaction to the accusation and verdict?
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Letters should acknowledge that the author is aware that the
person has been convicted of a serious crime, and state, if true,
that the writer attended the trial and is aware of the evidence.
The judge will want to know if the writer still has a good
opinion of the defendant despite her accusation and conviction.
This letter is NOT a place to criticize prosecutors, police,
doctors, laws, courts or the judge. The writer should explain
why he feels the defendant will follow all conditions set by the
court and be a law-abiding citizen upon release. Emphasize
how isolated and unusual this incident was in the whole context
of the person’s life and mention times you have observed
appropriate or exceptional care of children. Give the judge
insight as to who the defendant really is, as a person rather than
as the monster portrayed by the prosecutor.
Children who have been in the person’s care in the past can
write letters. One defendant said children’s letters definitely
influenced the judge in her case. Older children wrote that she
had been a role model for them, their favorite grown-up.
Sentencing Hearing
The attorneys, the defendant, and others including family
members of the baby, are allowed to make statements at the
sentencing hearing in an effort to persuade the judge to give a
lighter or heavier sentence. The judge may or may not take such
statements into account.
Statements by Baby’s Family Members
At Margie’s sentencing, the baby’s mother read an
emotional statement. I was surprised to later read suspiciously
similar statements in other people’s transcripts! I suspect that
prosecutors provide sample wording that parents can copy,
inserting details to fit their particular situation. Here is one such
statement:
It is with a heavy heart I come here. There is so much
sadness and grief. I want to express to the Court and
to [the defendant] how I feel and how this tragedy has
affected our family. I never thought in a million years
that the death of one of my children would happen. That
happens to other parents, not me. I have had so many
nightmares. We have suffered so much pain. Many nights
I have lain awake thinking. I’ve cried and cried, and
wondered how we are going to get through this grief and
anger. Parents are supposed to die first, not their children.
Sometimes I wanted to give up. I didn’t care about life. I
just wanted my son back.
My family has changed. My oldest son is so angry
and hurt. He is running away and getting into trouble at
school. He tells me how angry he is that she killed his
brother. He says, “She’s not a good mother, because good
moms don’t shake babies.”
In August, my daughter was taken to the hospital. She
wasn’t eating or sleeping and she was losing weight. I sat
by her bedside and listened to her pain and anger. I feared
I was losing her. She was hallucinating, seeing her baby
brother, rocking him and playing with him. She spent a
month in the hospital. Our family is not the same.
Before his death, [the defendant] was a trusted and kind
friend. She was there for me and my kids in good and bad
times. I won’t forget the good things you did for me and
my kids. I trusted you more than my own family members
to watch my kids, but you broke that trust. Still I cannot
find it in my heart to hate you.
There is not a day that goes by that I don’t see my son in
pain or think about holding him in my arms. Sometimes
all I can see is his white eyes like they were that day. How
could you sit there on the couch comforting him and not
call 911? You chose not to do something because you
were afraid of what would happen to you. Why did this
happen to my sweet boy? I’m so sad. He didn’t have to
die.
From the bottom of my heart, I am sorry for what you
and your kids are going through. But at least you still have
your children. I will never have my son back. We’ll never
be able to celebrate his birthdays, holidays, Christmas. I
will never see him graduate. All we have are memories.
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He was a sweet innocent baby. What happened
shouldn’t have happened. May 4 would have been his
4th birthday. We can’t celebrate those birthdays. We can
never celebrate his birthday again. I wish with all my
heart that I would wake up from this nightmare and find
my son still alive.
Statements by Supporters
In some cases 30 or more supporters have testified on behalf
of the person convicted. Occasionally, supporters include the
baby’s family. In one case, the baby’s parents submitted a letter
asking that the babysitter be allowed to return to her husband
and four children. “We urge you to grant us mercy by granting
her mercy. By doing so, we will be able to gain much needed
closure.” The defendant and more than 30 supporters wept.
The judge was moved and sentenced her to only 30 days in jail,
followed by probation.
A Connecticut judge in 2005 was so moved by the baby’s
parent’s pleas for leniency that he sentenced a babysitter to just
six months with a plea bargain.
Statements by Defendants
Here are some statements that have been made by
defendants at sentencing:
• I’ve had two years to sit and think about everything that
happened that day. And I can’t see anything I did that I
wouldn’t have done any other day. As for my crime, I wish
I knew what it was. All I know is I love my son with all my
heart and I would do anything for him.
• I don’t know what happened to him. I wish to God I did.
I didn’t accept a lesser plea because I didn’t do anything
wrong. I know I didn’t harm my son in any way.
• I was owed a fair trial and I feel that’s what I got. Even
though I could not prove my innocence, I respect the jury’s
decision. Please remember my responsibilities as a wife, a
mother and a friend.
• I would like the court to know I didn’t commit this crime.
Judge’s Remarks
• This is a tragedy. The blood of an innocent baby is on your
hands. That stain will never fade.
• In response to a sitter’s continued denial that she shook the
child, “Mercy is reserved for people who deserve it.”
• The public demands that there be some minimum price for
taking human life. I’ve struck what I think is a fair balance.
• I heard you say this morning that you’re a hell of a guy and
a hell of a father, but we have a dead baby. And the jury
found that you were responsible for that.
• The maximum sentence is necessary to send a message to
potential abusers that they will be prosecuted to the fullest
extent.
To believe the defendant, one has to believe in a grand, grand
conspiracy that flies in the face of all common sense.
—Prosecutor Charles Tingle at sentencing
After conviction, you are legally guilty even if not factually
guilty. It is to your advantage to cooperate with authorities if
you want to minimize the long-term negative effects on you
and your family. Prison wardens are among those who help
conduct the presentence investigation. Your respectful attitude,
cooperation, and good behavior while in prison can influence
the judge to give you a shorter sentence.
Ask your attorney how much of your sentence you will be
required to serve in prison, on parole, and on probation. This
varies according to jurisdiction. The media spotlight on the case
will fade after sentencing. Sometimes a person sentenced to 10
years can be home on probation in just 2-3 years.
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In Civil Court
America is the world’s most litigious society. People sue for any and
every reason and lawyers working on contingency often encourage that.
In many parts of the world, civil and criminal legal actions are
combined, but not in America. If the child was not your own, you
might be sued by his parents for wrongful death. Unless your attorney
agrees to represent you on both fronts, you’ll need a second attorney.
Communication between attorneys can present a challenge.
The standards of proof in civil court are much lower than in criminal
court. O.J. Simpson, among many other defendants, was convicted in
civil court after being acquitted in criminal court.
A civil lawsuit is regrettable and might tempt you to despair, but it
can actually make it easier to get depositions that can be used in criminal
court. That’s why it’s best if a single lawyer handles both cases.
Here are some extreme examples of civil lawsuits:
• Parents in one case filed a wrongful death suit for medical expenses,
lost wages, funeral expenses, past and future pain and suffering, loss
of their son’s companionship, attorney fees, punitive damages and
any other “relief as the court deems fair and equitable.”
• One boy’s father filed a civil lawsuit asking for $3 million in
compensatory damages and $7 million in punitive damages.
• In one case, no criminal charges were filed. The parents nevertheless filed a $1 million civil suit, alleging they were “deprived of [the
baby’s] comfort, companionship, society and services.”
People ask for the moon and often end up with nothing, but if their
attorney is working on contingency, they have nothing to lose by trying.
People who file civil suits prefer “deep pockets.” It can help to be young
or poor, without many assets. Insurance companies and others prefer to
settle. A bad settlement is almost always better than a “good” lawsuit.
Civil suits are not generally settled until after criminal proceedings
conclude, by which time you may have little or no money left. In
Margie’s case, the civil suit was dropped when she and her husband
declared bankruptcy.
Fortunately for me, I have not been involved in civil litigation, but
therefore cannot offer much advice. I have heard of people sheltering
some of their assets soon after an accusation and before a civil suit is
filed, but don’t know how that can be done. You might ask your attorney
if he can recommend anyone to whom you can talk about how best to
protect yourself from a possible civil suit.
Always keep in mind that money is just money. Family is
everything.
Never Give Up: Appealing the Verdict
It is almost as if you are not truly convicted until you’ve lost that
first appeal.
—John Batt
G
enerally, defendants convicted of a crime can appeal
within a specified period of time. Prosecutors may
appeal judges’ rulings and sentences, but a jury’s “not
guilty” verdict is sacrosanct. If you have been declared not
guilty by a jury, you need not fear a prosecutorial appeal.
In most cases, rulings by state courts of appeal may be
further appealed to state supreme courts. An appeal may
proceed to federal court and even all the way to the United
States Supreme Court if it is claimed that a defendant’s
constitutional rights have been violated.
In most cases, a defendant who accepts a plea bargain
cannot appeal. “No contest” is equivalent to a guilty plea. If
you hired a private lawyer, it may be difficult to convince an
appellate court that you deserve a new trial based on “ineffective
assistance of counsel.” If you were unhappy with your attorney,
they will reason, you should have found a different one.
Appeals address matters of law, never matters of fact.
Was the trial fair? Was there prosecutorial misconduct? Did
the judge allow inadmissible evidence? Did jurors consider
evidence not introduced at trial? Judges do not want to be
overturned on appeal because appellate court rulings are
published, distributed, and read by hundreds of people.
For the most part, anything addressed in an appeal must
have been addressed at trial. Your attorney must have objected
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and the judge must have wrongly overruled him, for example.
Arguments and evidence not considered at the original trial can
generally not be introduced in an appeal.
Once you have been pronounced guilty, the burden of proof
shifts entirely to you. 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.” Unless an appellate court finds that all 12 jurors were
irrational, the verdict will stand.
A defendant’s factual innocence, in most states, is irrelevant
in an appeal. Jurors alone determine the issue of guilt. If a
jury reaches a wrong verdict in a fair trial, it is just too bad for
the defendant. The United States Supreme Court has ruled that
claims of actual innocence should not be considered in decisions
about whether new hearings should be granted in federal courts.
The Supreme Court has not yet ruled that an innocent person
has a constitutional right to challenge a conviction. It did rule
in 2009, however, that individuals claiming innocence have
no constitutional right to DNA evidence requested for postconviction testing at their own expense.
In England and Scotland, as a result of known miscarriages
of justice, special Courts of Criminal Appeal have been set up
to review the facts of a case, not just the law, and determine if
a miscarriage of justice has occurred. A few states, including
Texas, have Courts of Criminal Appeal.
New Evidence
Strict time limits and rules govern the introduction of
evidence discovered after trial. In one case in Virginia, a
teenaged girl who was upset with her mother accused her
mother’s boyfriend of sexual molestation. The man was
convicted and imprisoned on the basis of her uncorroborated
testimony. Later, the girl told her mother she’d lied. He had
never touched her. The mother, shocked, took her daughter
to the police, where the girl passed a polygraph. Because the
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deadline for introducing evidence not presented at trial had
passed, however, nothing could be done. The man had no
choice but to remain in prison until he was eventually pardoned.
Even proof of perjured prosecution testimony may not be
enough to secure a new trial after a judgment is final. Courts
have ruled that the State has an interest in finality. The Supreme
Judicial Court of Massachusetts, originally created to put an
end to the Salem witch trials and establish a rational system of
justice, refused to reopen the case of the Amiraults, who had
been convicted during the day care sex abuse hysteria of the
1980s. The Court stated that the course of justice must not be
endless. Once the process has run its course, “the community’s
interest in finality comes to the fore.” In other words, finality is
more important than truth.
Prosecutors complain that too many Shaken Baby Syndrome
cases are appealed, that litigation drags on and on and on.
Hundreds of appellate decisions in these cases have been
published, and more than a few appeals have succeeded. To me,
this is evidence that the theory should be re-examined! Why
would hundreds of people convicted for this very specific crime
appeal and appeal again? Appeals are expensive! Less than
13%, on average, succeed, as appellate courts tend to defer to
the discretion of the trial court judge. Many people exonerated
by DNA lost appeal after appeal, despite their actual innocence.
Should You Appeal?
The question of whether to appeal in your particular case
should be discussed with your attorney. If you are innocent
and have been sentenced to decades in prison, you will need to
appeal. If you are innocent and have been sentenced to just a
few years, you might be better off to serve the time and save the
money you would spend on an appeal to preserve your family
and rebuild your life after you have served the time.
If you appeal, a free transcript of your trial will be prepared
by the state. (You may be able to order a digital transcript or
one reduced to fit four sheets to a page to save mailing costs.)
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Your attorney, possibly a new attorney, will submit written
arguments, addressing such issues as incorrect jury instructions,
ineffective assistance of counsel, failure of counsel to hire a
medical expert, insufficient evidence, or other irregularities.
In many, many cases, appellate courts acknowledge serious
errors by prosecutors but rule them “harmless.” Prosecutors
have lied, hid evidence, coerced false testimony and broken
rule after rule, yet appellate courts affirm the convictions,
effectively encouraging prosecutors to continue such behavior.
Many appellate judges have expressed confidence in the good
intentions of prosecutors and commented on the “overwhelming
evidence” of the defendant’s guilt, even in cases where
convictions were later proved wrong beyond doubt.
Even when an appeals court does not reverse a conviction, it
may reduce the sentence. Several appeals in shaken baby cases
have succeeded in getting charges and sentences reduced.
If an appeal overturns a verdict, you might be offered a plea
bargain. You might face another jury trial, perhaps for a more
serious charge with a longer sentence. Several DNA exonerees
were reconvicted at retrial and only released after their
innocence was eventually proved beyond all doubt. Without
DNA, innocence can be almost impossible to prove!
Appeals can be risky. One SBS defendant was convicted of
aggravated child abuse and sentenced to 21 years. An appellate
court reversed the conviction and ordered a new trial. At the
second trial, he was charged with felony murder. The jury
convicted and the sentence the second time was life.
Shirley Ree Smith and the U.S. Supreme Court
Only one Shaken Baby Syndrome case has gone all the
way to the United States Supreme Court. Shirley Ree Smith
discovered her grandson limp and not breathing. She was
charged with assault on a child resulting in death, convicted,
and sentenced to 15 years to life. Her conviction was affirmed
on appeal and the state supreme court declined to review
it. She filed a habeas petition, which was denied in federal
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district court. A three-judge panel overturned the denial. The
Ninth Circuit Court ruled that the evidence was insufficient
to sustain the verdict. That decision was appealed to the U.S.
Supreme Court, which returned it for further consideration. The
Ninth Circuit Court stood by its ruling that the evidence was
insufficient to sustain the verdict. It was again appealed....
Judge William C. Canby, Jr., writing for the Circuit Court,
said the prosecution’s case hinged on one huge hypothetical:
that violent shaking sheared part of the baby’s brainstem. But
no evidence existed that the brainstem was damaged. The
deputy coroner testified that she did not inspect the brainstem
and “wouldn’t have seen anything anyway.” Wrote Canby,
There has very likely been a miscarriage of justice in
this case. … An expert’s testimony as to a theoretical
conclusion or inference does not rescue a case that suffers
from an underlying insufficiency of evidence. … Absence
of evidence cannot constitute proof beyond a reasonable
doubt.
Shaken Baby Appeals
Although most convictions in Shaken Baby Syndrome cases
are affirmed on appeal, some are overturned. Here are some
summary statements from appellate courts that have overturned
convictions in these cases:
• The absence of evidence as to the cause of the baby’s death
cannot be converted into an inference that the applicant must
have caused it.
• There is insufficient evidence to establish that the babysitter
injured the boy, as he was in the care of several others
during the 24 hours prior to his severe symptoms becoming
manifest.
• Prosecutors failed to prove beyond a reasonable doubt that
no one else, namely the parents, had the opportunity to
commit the crime.
• Grisly autopsy photos were improperly used and were
“highly prejudicial” against the defendant. (The photos
weren’t shown at retrial, but he was nevertheless convicted.)
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• There was insufficient evidence to conclude that the
shaking, which occurred during the course of a seizure,
caused the death of the baby. There was also insufficient
evidence to prove that the shaking was for any other reason
than a desperate attempt to revive the baby. (In this case, the
appeals court ordered an acquittal rather than a new trial.)
• There is “no evidence of reckless conduct, no evidence that
the defendant or anyone else recklessly struck or shook the
baby.”
• The trial judge failed to instruct the jury of its legal duty
to determine whether the child’s injuries were caused by
shaking or by not seeking immediate medical care.
• A defendant’s shaking a baby and the baby’s death by
Shaken Baby Syndrome are not the sole determinants of
whether the State has produced sufficient evidence of malice
to convict the defendant of murder.
• The error was not harmless because the detective’s out-ofcourt comments on video as to what he believed happened
and that he believed the defendant killed the baby were so
prejudicial that the erroneous admission of the statements
cannot be considered harmless beyond a reasonable doubt.
• Jurors should not have been shown the 15-minute video
“Portrait of Promise: Preventing Shaken Baby Syndrome”
to prove malice. The court ruled that the contents of the
video were overly broad, constituted hearsay and were more
prejudicial than probative.
• The trial court abused its discretion by excluding expert
testimony that contradicted the prosecutor’s assertion that
the baby’s head was slammed into a cabinet door.
After you have exhausted all appeals and habeas corpus
petitions, your best bet might be to wait for a new chief
prosecutor or medical examiner who wants to make a name
for herself and then try again. More than one person has had a
shaken baby conviction reversed because a new official came
onto the scene.
Prison: Making the Best of the Worst
Under a government which imprisons any unjustly, the true
place for a just man is prison.
—H.D. Thoreau
T
his is another chapter I hope most of my readers
will not read—will not have any need to read. I was
tempted to omit it entirely, because there is a tendency for
human minds to obsess on worst-case scenarios. I finally
decided to include it, because I want you to know that even
in the worst case (by no means the necessary outcome of
your case), all is not lost. You can survive the ordeal even
if you are wrongly sentenced to prison! You can cross that
bridge if you come to it. Until you come to it, you can
balance your life in limbo, not knowing. You can!
I do not feel competent to write about prison. I personally
have not walked this path. Please keep in mind that what I say
here is strictly secondhand advice. Find in it what is helpful to
you and ignore what is not helpful.
When Margie’s verdict was read, her brother, a strong
military man, collapsed in tears. We were speechless. She
was instructed to give all jewelry to her husband. Graciously,
the judge allowed her a few minutes to say goodbye to family
members and supporters, and to thank her attorney. She was
then handcuffed and escorted out of the courtroom.
In shock and disbelief, we filed into the hall. I have never
seen so many ashen faces, utterly devoid of color. What now?
We hadn’t dared to seriously consider that this might happen.
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The sentencing guidelines dictated 5 to 20 years. It seemed to
us the end of the world.
The shock never entirely faded. Some of Margie’s
supporters have since passed away. Among the last things they
talked about before leaving this world was that day—the grief,
shock and disbelief of that day. Injustice stings.
God bless the court clerk. On her own volition, she
followed us into the hallway and told us that Margie was an
excellent candidate for a halfway house or to live at home with
an ankle monitor. She told us Margie would be sent to a nearby
women’s prison, well run and humane. The clerk comforted us,
told us not to despair, said this wasn’t the end of the road and
assured us Margie would not spend 20 years in prison.
Even in the darkest of circumstances, even within the
deepest bureaucracy, there are individuals whose words bring
light and hope. There are people who care and have a heart.
Prison is a different world, but it’s a world to which people
adapt. It’s a world that people survive. You can find serenity to
accept this unjust situation you cannot change.
The hope of winning an appeal can take you on the same
emotional roller coaster ride as did the long wait for trial: hope
and despair, hope and despair. Once appeals are exhausted, or
once you’ve decided not to appeal if on balance that seems best,
your focus will switch to making the best you can of a difficult
situation. The major battlefront will shift from the world
outside to the world inside your mind.
Count Your Blessings
After all the negative things that happened to bring you
to this place, you may well ask, “What blessings?” A key to
survival is finding some. Things could be worse—as bad as
your situation is, as hard as it might be to believe.
For example, be thankful you are living at this time in
history. Until fairly recently, people convicted of murder or
manslaughter were summarily executed, in public, often in
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circumstances calculated to maximize pain and humiliation.
William Penn was the first to champion the idea of incarceration
as punishment. Imprisonment was not widely adopted in the
West until the 19th century. Public executions are still the norm
in many areas of the world. Under some systems of law, there
can be no appeals. Mistakes are literally buried.
Be thankful you live in a Western, developed country, where
prisons are relatively humane. I’ll never forget hiking past a
Mexican prison. It was just a big open yard, with nothing in
it. No air conditioning or heating. We were told that if family
members didn’t supply or pay for food, it was too bad for the
prisoner. The government wasn’t required to feed them! To get
a sense of how bad prisons can be, read John McCain’s story.
Read the novel Safely Home. Watch the film Red Corner. Read
about prison camps in World War II. Be glad you’re not there.
You will be fed (even if the food is bad). There will be heating
and air conditioning. There won’t be standing water or rats in
your cell. There won’t be physical torture by sadistic guards.
Focus on any blessings you can find, as much as you can,
as hard as it is. If you are allowed contact visits, count it a
blessing. If your fellow inmates don’t have it in for you—if
they leave you alone—count it a blessing. If you have people
on the outside who care for you and have been faithful, count it
a blessing. If prison guards are reasonable, count it a blessing.
Even count it a blessing to have the opportunity for a
changed heart. Said one babysitter of her prison experience,
“It has made me look differently at people. I have more
compassion now for women who are committed.” Through the
fire, your integrity can be refined and you can become stronger.
Integrity is the product of a relentless pursuit of honesty, at all
times. If you were wrongly convicted, you will appreciate the
value of truth and honesty as few people ever do.
Day to Day Life in Prison
Generally, there is an orientation period during which you’ll
be taught the prison rules—something like “boot camp.” It
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is to your advantage to pay careful attention and respectfully,
submissively, follow all rules at all times. Be respectful to
prison personnel, even if they are rude or cruel or try to bait
you. Keep a low profile. Endeavor to be gray, invisible. Melt
into the walls.
Do not tell other inmates why you are in prison! There is
a sort of upside-down hierarchy there, with cop killers on top,
commanding the most respect. On the bottom rung in prison
are child killers. Infants are a bastion of purity and innocence
in western culture. Harming them is one of the last universal
taboos. Even remorseless gang members and ax murderers
feel righteous indignation at anyone who would hurt a baby!
Remember, many criminals were abused as children. They may
blame their current troubles on the person who abused them.
“If you’ve been convicted as a child killer, you become a focal
point for all the hatred in prison,” said one inmate. There is a
lot of hatred bottled up inside people in prison.
“Make no mistake,” said one wrongly convicted person,
“prison changes you. You can’t turn the other cheek. They’ll
take everything from you. … You can’t go around prison
saying you’re innocent.” That can be the case, especially in
men’s prisons, but isn’t necessarily. One woman told me that
other female inmates believed in her innocence and protected/
defended her. Inmates have personally experienced police
who jump to conclusions, witnesses who lie, prosecutors who
hide evidence and twist truth. While everyday citizens may
assume that the justice system is flawless, inmates know better.
Situations vary from prison to prison and even within a prison.
Be very cautious. A lot of convicts are con artists. Don’t let
them con you. Don’t be tempted trust them.
As much as you might long for friends and confidants,
remember that most people in prison are there for good reason.
There are likely a few who are innocent, as you are, but true
criminals lie as easily as they breathe. It will be tough to sort
out who’s who. Said one exoneree: “In prison, you learn not
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to trust people. You’re taught very early on, don’t trust anyone.
No one. If you want to survive prison, you have to not trust
anyone.”
Said another, “I keep to myself. You have acquaintances
in prison but not friends. There’s no place to run. You have to
cope.”
You have to be on guard. Keep your feelings and thoughts
to yourself. Do not complain or criticize anyone. Endeavor
not to offend or to take offense. That may be impossible with
people who are touchy and easily offended by a perceived
“look” on your face, but do your best. Keep your head down.
There’s little privacy in prison. You may bunk with 10-20
others in the same room, and have only a small box in which to
store your things. Prison is life at a bare minimum, stripped of
everything but the necessities for survival.
Life will settle into a routine. Perhaps a maddeningly
boring routine, but not necessarily. Your formerly busy life
will screech to a halt. Each minute may seem to take forever to
tick by. As much as you might have previously longed for time
to just rest without responsibilities for children and work and
home, you might now want more than anything just to change a
diaper. Time can hang heavily.
“The only way to get through this is to take it one day at a
time,” said David Shephard, who spent 12 years in prison for a
crime he didn’t commit. “If at all possible, find something to
give you a sense of purpose.”
Think of all the things you thought you’d do someday if you
ever had time. You now have time, nothing but time. Try to
pursue some of your interests. There may be opportunities to
work, get an education, learn a language, participate in Bible
studies, and cultivate hobbies. If you can fill time with things
that interest and challenge you, it will pass much faster.
The biggest battle will be in your mind. Said Sally Clark, a
mother wrongly convicted in the United Kingdom for killing her
children, “Separation from Steve and Tom tests my emotions
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and endurance and causes me the greatest upset, rather than my
day-to-day existence around the prison.”
Even in a world where nothing much of interest happens,
where days blend together into mush, some days will be harder
than others. One woman convicted of shaking a baby said,
“Everybody who’s got children and who’s in prison knows
that every day is hell, but birthdays, Christmas day and New
Year’s Eve are the worst days of your life.” The anniversary of
the baby’s collapse or death might be even worse. Expecting
that, you can plan ahead. If possible, arrange for something
to help get you through those days. Do something special for
yourself or ask others to do something special for you. Try to
find something to look forward to on those most difficult days.
When they arrive, take them one minute at a time and restrict
your grieving to a pre-planned hour or two if possible.
all seems lost at the moment, things could change in the future.
Don’t dig yourself into the grave prematurely. Don’t discourage
those who love you from loving you! Write to them, even just
a post card, when they write to you. Tell them that you wish
you could write more or communicate better, but you just can’t
under the circumstances. They’ll understand. Let them know
you appreciate their faith in you. Remember, they’ve never
been in this situation before, either. They do not know how best
to support you. Help them learn how to help you.
In most cases, prisoners can make collect phone calls to land
lines. Let people you want to call know the situation on your
end. There may be a long line of prisoners behind you, listening
to every word you say. If that’s the case and your friends know
it, they’ll understand why you sound guarded and why you
might seem in a hurry to conclude a conversation.
Contact with People on the Outside
Said one wrongly convicted person: “When you’re in
prison, you die inside, you just die. What keeps you going is
people that love you and care about you and that reach out to
you.” Contact with people you love is critical!
Some inmates cut themselves off from the outside world.
They do not want to think about what they are missing. They
do not want to hear what their friends on the outside are doing.
Just getting through a day takes all the focus and energy they
can muster. They don’t have anything left to invest in others.
They have nothing to offer.
If you let your friends and family know your limitations,
they might be more considerate about what they say to you.
Don’t be embarrassed about communicating what you need or
don’t need. If you’re innocent, it’s not your fault that you’re
where you are. Help those who care about you figure out what
they can do to support you.
Some who have been in prison advise that you force yourself
to maintain contact with your family and closest friends,
especially your children. Even if you have a life sentence and
Generally, you will be allowed a certain number of visitors,
who have to be cleared by authorities and on a list. Visits may
be contact or noncontact (over a phone through thick glass),
depending on the institution. After a contact visit, you may have
to undergo an invasive search for contraband. I was initially
hurt that Margie didn’t invite us to visit her in prison. She and
her husband made sure her children saw her once or twice a
week and spoke with her daily, whether they felt like it or not.
When I later learned the price she had to pay for every contact
visit, I felt only compassion. It was worth that price to see her
children. They kept her alive. She focused on them for her own
survival. She did what she had to do for their sake, counting the
days until she could be with them again. She actually forced her
mind to focus on them, using thoughts of them to crowd out less
happy thoughts. She talked to other inmates about them. She
made gifts for them. She prayed for them.
When people are no longer able to share daily life and
experience, they naturally begin to grow apart. To prevent
the disintegration of families, everyone must be aware of the
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danger and do everything possible to combat it. Life can be
harder for people on the outside than for those in prison. Single
parenthood is exhausting. The endless bills, the demands on
time, the fatigue can be overwhelming. One person is carrying
the burden of two, and the other can do nothing whatever
to ease that burden. Resentment or guilt feelings can build.
Bitterness can take root, against the system or against the person
convicted. Either way, it is destructive.
Some people combat the danger with love letters back and
forth, written frequently and saved to reread and reread. Love,
after all, is a choice. “For better or for worse....”
There may be a temptation for the person incarcerated
to want to relieve the burden of the spouse on the outside by
withdrawing and no longer asking for or expecting calls or
visits. But you are in this together. Your goal is to “fly the
plane to the ground” without sacrificing anyone. It may seem
easier to give up, for the short run at least. Don’t!
Look at it this way. The “system” is doing everything it can
to destroy you. The best way to get revenge is: Refuse to be
destroyed! Turn your anger into a firm resolve to get through
this intact and to preserve your family whole.
You may be assigned to a prison close to home, or many
hours away. If it is close, count it a blessing. If it is far away,
endeavor to win a transfer. Ask your attorney to help you find
out how that can be done.
Parole
One of the most difficult things about being wrongly
convicted is that once you’re in prison, the rewards for
admitting guilt escalate. To get parole, you generally have to
“accept responsibility” for your “crime” and express remorse.
The nature of the crime is considered. Killing an infant is
classed among the most heinous of crimes. There will be huge
incentives to admit guilt regardless of what is true.
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In one case, the parole board wrote: “What has surfaced
as the greatest concern is the degree of denial or responsibility
expressed. [You deny] being fully accountable for the tragic
death of your young victim.” Some people, desperate to get
parole, lie and fake remorse. Others serve every minute of their
sentence, saying, “I just couldn’t do it. I couldn’t live with
myself if I did that. I just couldn’t live with myself.”
James Woodward, exonerated by DNA after 27 years in
prison, was questioned by Scott Pelley after his release:
Pelley: 27 years! How did you do it?
Woodward: You can only go one day at a time. I don’t
really know myself, I just did the best I could. Every
day I had hope that maybe today would be a better day.
Pelley: You had hope?
Woodward: That’s all a man has. I had hope for parole. I
think I came up about 12 times.
Pelley: When you appeared before the parole board, what
did they say to you?
Woodward: They always told me, as long as you deny
your guilt, it’s saying something about you, you’re not
willing to own up to your deeds.
Pelley: All you had to do to get out on parole was to tell
them that you did it?
Woodward: Right.
Pelley: Why didn’t you do it?
Woodward: I wasn’t guilty.
Pelley: You chose truth over freedom.
Woodward: A man has to stand for something.
Truth can be a great comfort in the midst of suffering. Said
Nick Yarris after 23 years in solitary confinement for a crime
he didn’t commit: “You know the truth and it gives you that
incredible sense of peace because whatever they say doesn’t
matter. That was my greatest strength!”
Truth can give you strength to endure injustice. On the
other hand, some people do whatever they have to do to reunite
with their families sooner rather than later. That is a decision
each individual must make. People who have not walked even
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a mile in your shoes should refrain from judging you for your
choice. There, but for God’s grace, goes any one of us!
After the Dead End
Kerry Max Cook, a DNA exoneree, wrote in his book
Chasing Justice:
Having reached a dead end in my quest for legal justice,
I went on a relentless search for internal truth. Until now
I had lived on an appetite of fear: fear of the prosecutors,
fear of being executed, fear of dying a violent prison
death, and fear of my own courage running out. That path
had landed me at the bottom of a black hole from which
I had only one place to look—up. I familiarized myself
with the Koran, Buddhism, and Catholicism. One day,
a volunteer chaplain assigned to death row gave me a
book entitled Evidence that Demands a Verdict, by Josh
McDowell. McDowell had set out to prove the doctrine of
Christianity was false. Instead, his intensive investigation
led him to write a book of apologetics--evidence for the
Christian faith. The setting down of facts culled from noted
historians—most of whom were atheists—transformed
me. In the end, they all seemed to arrive at the same
place and agreed with the same conclusion: A man named
Jesus Christ did in fact walk the earth and did perform
the miracles mentioned in the Bible. He either was a
magician, a lunatic, or was in fact who he said he was. My
pilgrimage, like Josh McDowell’s, led me to the realization
that Jesus was more than a carpenter: He was the Son
of God. The evidence was there. I trusted my eyes, and
believed it with all my heart.
Paul and Jim [attorney and investigator who helped with
appeals] visited me to boost my spirits. I was in another
place with this new conviction. Each time they brought up
the case and their optimism, I changed the subject.
“Kerry, you’re worrying me. Are you letting go?” Jim
said.
“No, Jim--far from it. I am not saying necessarily that
my destiny is to die here, in this place, but if it is--and it is
God’s will--I embrace that,” I told him and Paul. I shared a
scripture that had resonated well with me from the Gospel
of Mark, chapter eight, in which Jesus said to his disciples,
If anyone would come after me, he must deny himself and
take up his cross and follow me. For whoever wants to save
his life, will lose it, but whoever loses his life for me and the
Gospel, will save it. What good is it for a man to gain the
world, yet forfeit his soul?
For the first time since August 1977, I sat with a lawyer
and an investigator and talked about something other than
my legal ordeal. My epiphany replaced fear with a peacefulness that was ineffable. I had finally figured out that if I
were ever to have a chance to get out of this horrible place,
the power and strength had to come from somewhere else.
I no longer had it in me.
The only way I know to come to terms with the injustice
of what has happened to you is to view it from a much larger
perspective, a true perspective. That is possible. Some people
have said—get this—that the truth they discovered as a result of
being in this horrible situation was worth the pain! Wow!
When you are at the end of yourself, when there’s nothing
more you can do, it’s still not the end. You will be tempted to
despair. Resist. It isn’t the end of the story yet, however you
may feel. There is more to life than meets the eye.
I hope sometime in the future to write a separate book
to address how to find serenity to accept what you cannot
change. It involves going deep to find a peace within that no
circumstance or event can shake.
I must admit that I feel inadequate to the task. I stand
speechless at the suffering and devastation caused by injustice.
I am too small to make much of a difference, but it is my
responsibility to do what I can. I trust you to sort my words,
take what you can use, and ignore the rest. I pray every day for
truth to be discovered in these tragic cases and for justice in the
courts of this great land.
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Moving On
I never thought I’d say this, but in a lot of ways it was easier in
prison.
Man exonerated by DNA
E
ventually, unless you receive a life sentence without the
possibility of parole (which is unlikely), your ordeal
will end. The day will come when charges are dropped,
you are acquitted, or you are released from prison. You
might even be exonerated. What next? Although you’ve
dreamed of freedom for years, it may arrive with a whimper
rather than a shout. This is a time of special danger.
Readjustment can be tough. Even couples that stood
strongly together through thick and thin sometimes divorce
in the aftermath.
Hopefully, you will have “flown the plane to the ground.”
You will have survived and used the little control you had to
minimize unnecessary damage to yourself and your family,
to the extent possible. Captain Sullenberger’s airplane was
destroyed, but his passengers were saved. Things can be
replaced. Lives and relationships are priceless.
Until your life is on an even keel and moving in a positive
direction, danger remains. Don’t relax your vigilance because
the ordeal seems to be over. Post-traumatic stress can be more
destructive than the fight itself. Dominos of destruction can
still fall, negating all your previous efforts to survive intact.
Don’t allow yourself to resort to alcohol or drugs, for example.
Refuse to take out latent anger and frustration on those who
have stood beside you.
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Sally Clark, a British mom who was exonerated of the
murder of her two sons in 2005, began drinking after her release
and was found dead by her husband at age 43. After all the
effort she and her supporters expended to prove her innocence
and reunite with her husband and living son, she succumbed to
self-destruction. It’s a heartbreaking story. The sad truth is that
her enemies won in the end. My hope is that you will transform
your anger into a firm resolve to do whatever it takes to win
back your life, and to avoid anything that might steal your
future. Where there is life, there is hope.
As hard as it might seem, you need to reconnect with your
loved ones and engage in productive work. That might mean
getting a job, even a job far below your abilities. It might mean
staying home with your kids and caring for them. Your children
were wounded, too. They need the adults in their lives to set
an example, to be strong, to suffer injustice with grace, to be
willing to do whatever it takes for love of them.
Fear and anxiety torments many people once they’re
released. You are no longer naïve. Your trust and sense of
security were shattered. There’s a haunting fear that something
could happen again. You’re afraid to be alone with or even
touch a baby. The phone rings unexpectedly and you jump.
You see a police car and freeze. Only with time do fears fade.
Professional counseling helps some people, but it’s expensive
and not always worthwhile. It’s important to find ways to
grieve, to make peace with what happened and to move beyond
grief to healing, so as not to stay in the morass of depression.
For some, involvement in physical sports helps reduce
anxiety. It helps to have a release valve through which “steam”
can escape safely. Cherish what nourishes your soul and make
time for it: soft music, candlelight dinners, whatever affirms
your being.
No one will really understand what you’ve been through.
Most people won’t know what to say or do even if they
sincerely care. They will want to talk about safer and more
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“comfortable” things. Expect that. People’s interests and
priorities might seem trivial to you. Little things they do might
irritate and cause you to flash with anger. You may feel fatigued
or overwhelmed. Don’t beat yourself up about how you feel,
but don’t let feelings dictate your behavior. Be gentle with your
heart but firm with your behavior. Keep putting one foot in
front of the other toward your goals, even when every fiber of
your being wants to give up. If you fall down, get up and keep
moving. Keep your mind engaged and utilize the strength of
your will to get you through the inevitable emotional storms.
Release from prison
When you are released, it will likely be on parole. You will
probably not be free to move to another state for the time being.
In some places, there are incentives for businesses to hire exconvicts, and you could be the best of the available prospects.
Although an employer may not initially believe that you’re
innocent, your diligent work and character may eventually
convince him that you can be trusted and were wrongly accused.
Take advantage of any classes or programs available to
reintegrate you into society. Keep the images of your children
and supporters in your mind. Do what you have to do for them.
Don’t give in to the temptation to despair. People have endured
even worse (i.e. death camps), yet successfully picked up the
pieces of their lives and moved on. You can, too. Don’t give up
just when you have almost won! Hang in there! Persist.
Once you are completely free from supervision, it may
be advisable to move to another place and start anew. Create
new memories in a place not haunted by old ones. In America
and most western nations, that is possible. Your life is not
completely defined by your past. You can start over. You
have lost some years, and that is definitely unfair, but life is,
unfortunately, NOT fair. As much as we want it to be, it is not.
You can’t change the past but you can change what happens in
the future. Don’t allow the past to torpedo your future.
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Exoneration
Even for those who are finally cleared of all wrongdoing
(every innocent person’s dream), it can be difficult to leave
the past behind, move on, and become a productive citizen.
Your life has been shattered into tiny shards. It’s discouraging
to look at the damage and set out to rebuild. You’ll discover
additional damage as you proceed. The battle is over and peace
has returned. Now you have time to look around at the damage.
Grieve. Then stand back up and choose to make a good life
with the time that remains to you on earth. Determine to win.
Recreate your life one piece at a time. Little by little by little.
Focus on every success, every source of joy.
If you’re exonerated, you might relish the idea of revenge,
of suing those who wrongfully convicted you. May I
encourage you to consolidate your victory and move on rather
than pursue the enemy in your weakened state. Generally,
it’s a discouraging, uphill battle to try to force officials to
acknowledge error. Such a struggle could rob you of your
last precious reserves of energy. Government officials are
generally shielded from civil lawsuits. Some go to unbelievable
lengths to hide or deny error. Once your life is stable and your
relationships are strong, the option to clear your name or seek
restitution will still be there.
Restitution
What could compensate a person for years spent wrongly
in prison? If you’re honest, you’ll have to agree that nothing
anyone could ever do would make things entirely right. Not
apologies. Not money. Nothing.
Of course, apologies help. Said one person, “Yes, I’m
thankful to be free, but an apology is something I would like
very much.” James Woodard, who served nearly 30 years for a
murder he didn’t commit, said, “It was well worth the wait just
to hear that, just to hear someone admit that they were wrong,
they did me wrong.”
Well worth the wait??? A 30-year wait? Wow!
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A sincere apology can go a long way toward healing
hearts. That’s why parole boards make such a big deal out of a
prisoner’s willingness to take responsibility and express remorse
for their crime, to feel sorry for what they did that harmed
another. If you’re innocent, it’s hard to fake heartfelt remorse.
It’s hard to sincerely apologize when you did nothing wrong.
But if you’ve been wronged, you long to hear an apology.
Even people who have proved their innocence beyond
doubt may never receive an apology. Said one prosecutor, “Is
it tragic that he spent 20 years behind bars when if we had the
evidence 20 years ago we wouldn’t have prosecuted him? Of
course it is. It’s tragic. But that doesn’t mean he was wrongly
convicted because he wasn’t. The system worked exactly like
it was supposed to. The government doesn’t owe an apology to
anybody about that.”
So, according to the prosecutor, the man was rightly
convicted even though he was innocent!
Said a DNA exoneree,
To me, an apology just won’t do, because an apology can’t
bring back the time that I spent, can’t bring back my loved
ones. I lost ten family members while I was incarcerated,
never got to go to the funeral of any one of them. And
there’s some of me that can’t tell you what I’ve lost.
There’s a part of me that’s just gone. I’m 20 years behind
times. But when I was ready for release, I still wasn’t
excited about getting out. I still don’t understand that today.
This brings up another point. Getting out of prison can be
confusing and unsettling. After that delicious steak dinner you
dreamed about and all the ice cream you can eat, you will have
to take charge and put one foot in front of the other to rebuild
your life. Freedom comes with responsibility and that can be
a heavy load when your every moment has been regulated for
years. But you can do this. The fight is not over until your life
is on track again. Don’t surrender after you’ve come so far!
If you are offered an apology, count it a blessing. If not,
shrug your shoulders and move on. Don’t let them win.
Compensation
In 1853, a California senator petitioned the state legislature
for $4,000 to reimburse a wrongly convicted person for
expenses he incurred to prove his innocence. Said the
legislature:
To grant the prayer of the petitioner, would establish a
precedent which, if carried out in all cases of the kind,
would more than exhaust the entire revenue of the State.
… In society it too often happens that the innocent are
wrongfully accused of crime. This is their misfortune, and
Government has no power to relieve them.
Period. Too bad. Your misfortune....
Because of the DNA exonerations, laws have been passed
in several states that provide compensation for years a person
wrongfully spent in prison. But DNA provides irrefutable
proof of innocence. It is much more difficult to prove you
didn’t shake a baby. Don’t expect to ever receive financial
compensation. If you do receive some, count it a blessing, and
find someone to help you invest it wisely.
Money can’t compensate for what you’ve lost. Millions of
dollars couldn’t compensate you for the moments you’ve lost,
for missing your child’s first steps and first days at school, for
all those heart-rending Christmases and birthdays. Money can’t
make you young again. But money can help you rebuild. Be
happy if you get any. Most people don’t.
Clearing Your Name
“I don’t think a lot of people realize how important innocence is
to innocent people.” Michael Chamberlain, Cry in the Dark
Some people who are acquitted go to great lengths to try
to clear their name completely. It isn’t easy, and it’s rarely
successful. Even DNA exonerees complain that they can’t
get their records expunged. Nobody bothers to reopen an
investigation to find the real killer once mistakes are verified.
The system eventually lets the innocent go, but that’s about it.
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Ken Marsh is one of the few people convicted of shaking
a baby who received compensation and had his name cleared,
ironically in California, the state that in 1853 said a wrongful
conviction was simply a misfortune which the government had
no responsibility to remedy.
In a surprising turnabout, state prosecutors cleared the
way for a Rancho Peñasquitos man to collect $756,000 in
compensation for spending 21 years in prison after being
wrongly convicted of killing a toddler. The decision moved
50-year-old Ken Marsh to tears in a government hearing in
Sacramento. Marsh has insisted on his innocence since he
was arrested, convicted and sentenced to 15 years to life in
prison in 1983. He refused to admit guilt even though it
could have led to his freedom years earlier.
The decision came at the end of four days of hearings on
Marsh’s claim filed under a state law that grants $100 per
day for former prisoners who can prove they were wrongly
convicted.
The payout would be the largest the state has given
under the law, surpassing the $481,200 a Long Beach man
received in 2003. Nineteen states have laws offering such
compensation and a New York man once received nearly $2
million for his wrongful conviction.
“What this means is the attorney general now believes
that no crime was committed, and Ken is innocent,” said an
attorney.
May such a day come for you, if you were wrongly accused.
May you hear the words, “You are innocent. We are sorry.”
But whether or not such a wonderful day arrives for you,
may you “fly the plane to the ground”, land safely, and rebuild
a good life for yourself and your family. May you have the
strength and determination to persevere and win in the end,
despite all the heartbreaking losses along the way.
Ask your friends to continue praying for you until your
life is back on track and moving in a positive direction. Then
invite them to a party to celebrate with you. Put a period on that
chapter of your life and look forward to a whole new chapter.
Definitions
Acute: of short duration but severe, the opposite of chronic.
Adjudication: the making of a formal judgment about a
problem or disputed matter.
Admission: a statement admitting or acknowledging that
something is true, typically made with reluctance.
Affirmation: a formal declaration by a person who declines to
take an oath.
Aggravating: increasing the gravity or seriousness of an
offense or mistake.
Alford plea: a plea bargain that allows a defendant to maintain
innocence while admitting that sufficient evidence exists to
persuade a judge or jury to convict. A defendant waives her
right to trial and accepts a prison sentence without admitting
guilt. This type of plea stems from a 1970 Supreme Court
decision, North Carolina v. Alford and is sometimes called a
“best-interest” plea.
Anomaly: something that deviates from what is standard,
normal or expected.
Anterior: situated in the the front of the body, nearer the face
or forepart.
Arraignment: to call or bring someone before a court to
answer a criminal charge. The accused enters a plea of
guilty, not guilty, or no contest.
Artery: any of the muscular-walled tubes forming part of the
circulation system by which blood (mainly that which has
been oxygenated) is conveyed from the heart to all parts of
the body.
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282
Artifact: something observed in science, in an autopsy for
example, that is not naturally present but occurs as a result
of the scientific procedure.
Atrophy: waste away, typically due to the degeneration of
cells.
Autopsy: a postmortem (after death) examination to discover
the cause of death or the extent of disease.
Axon: the long threadlike part of a nerve cell along which
impulses are conducted to other cells. (See p. 290.)
Best-interest plea: See Alford plea.
Bilateral: affecting both sides. Bilateral subdural hemorrhage
means on both sides of the brain. Bilateral retinal
hemorrhages are in both eyes.
Blunt force trauma: injuries from a blunt, rather than sharp or
penetrating, object.
Brainstem: the central trunk of the brain which continues
downward to form the spinal cord.
CT: computerized (or computed) tomography.
CT scan (or CAT scan): an X-ray image made using computed
axial tomography.
CSF: cerebral spinal fluid, a clear watery fluid that fills the
space between the arachnoid membrane and the pia mater.
(See p. 290.)
Cerebral: pertaining to the principal part of the brain, which
consists of two hemispheres separated by a fissure (midline).
Cervical medullary junction: the junction between the base of
the skull / brain stem and the spinal cord.
Chronic: persisting for a long time or constantly recurring.
Clinician: a doctor having direct contact with and
responsibility for patients, rather than one involved with
theoretical or laboratory studies.
Confession: a formal, generally written, statement
acknowledging guilt. A confession to police must be
voluntary and usually describes how the crime occurred.
Congenital: a disease or physical abnormality present from
birth.
283
Consensus: general agreement.
“Consistent with”: compatible with, cannot be ruled out.
Contusion: a region of injured tissue or skin in which blood
capillaries have been ruptured, such as a bruise.
Coroner: an official who investigates violent, sudden or
suspicious deaths. Coroners are generally elected.
Coroner’s inquest: a special jury which investigates a
suspicious death and reports to the Coroner.
Credible: believable, convincing.
DAI: See diffuse axonal injury.
Deposition: a sworn statement made under oath but not before
the court.
Diffuse: spread over a wide area, as opposed to focal.
Diffuse axonal injury (DAI): injury to the axons of the brain
that is spread throughout the brain rather than concentrated
in one particular spot.
Dura: the tough outermost membrane enveloping the brain and
spinal cord. (See p. 290.)
Edema: a condition characterized by an excess of watery fluid.
Cerebral edema is brain swelling.
Encephalopathy: a disease in which the functioning of
the brain is affected by some agent or condition, such as
infection or toxins.
Epidural: atop the dura mater of the brain.
Etiology: the cause, set of causes, or manner of causation of a
disease or condition.
Evidence: information given to prove or disprove a fact. The
“trier of fact” (jury or judge) decides disputed facts.
Exculpatory: showing innocence.
Febrile: having or showing symptoms of a fever.
Febrile seizure: a seizure that occurs because of a high fever.
Felony: a crime, typically one involving violence, punishable
by imprisonment for more than one year or by death.
Focal: occurring in one particular site, as opposed to diffuse.
Forensic: the use of scientific methods and techniques to
investigate crime.
284
Fundal: relating to the part of the eyeball opposite and farthest
away from the pupil.
Grand jury: a jury, normally having 23 jurors, selected to
examine the validity of an accusation before trial.
Habeas corpus: a summons by a higher court demanding that a
prisoner be brought before the court so a determination can
be made as to whether she is being lawfully detained. Even
after all appeals are exhausted, a writ of habeas corpus can
sometimes free a prisoner.
Hearsay: the report of another person’s words by a witness,
generally disallowed as evidence in a court of law.
Hematoma: a solid collection of clotted blood.
Hemophilia: a medical condition in which the ability of the
blood to clot is severely reduced, causing the sufferer to
bleed severely from even a slight injury. The condition is
typically caused by a hereditary lack of a coagulation factor,
most often factor VIII.
Hemorrhage: an escape of blood from a ruptured blood vessel.
Heuristic: proceeding toward a solution by trial and error.
Histology: the study of the microscopic structure of tissues.
Hung jury: a jury that is split and unable to render a
unanimous verdict. All 12 jurors must concur in a criminal
case in the United States. In some countries, a strong
majority verdict is acceptable.
Hygroma: a sac of thick fluid, made up mostly of serum (the
straw-colored liquid part of blood) left behind when the red
blood cells in a subdural hematoma have been reabsorbed by
the body.
Hyperemia: an excess of blood in the vessels supplying an
organ or other part of the body.
Hypoxia: deficiency in the amount of oxygen reaching the
brain.
Indictment: a written statement of accusation. Depending on
the jurisdiction, it may be issued by a prosecutor or a grand
jury. A person cannot be charged with a higher offence than
that specified in the indictment.
285
Indigent: poor, needy.
Infarction: the cutting off of blood to an area of tissue or an
organ, often due to a clot. The result is local death of tissue.
Information: a formal criminal charge lodged with a court or
magistrate by a prosecutor without the aid of a grand jury.
Interrogation: close, aggressive questioning of a suspect or
prisoner. The purpose is generally to obtain a confession.
Interview: questioning by police to discover what a person
knows about what happened. The purpose is to gather facts.
Intracranial: within the skull.
Intubate: insert a tube into a person to ventilate with oxygen.
Ischemia: an inadequate blood supply to an organ or part of the
body.
Jail: a pretrial detention center for people accused of a crime.
Jurisdiction: the territory over which the legal authority of a
court or other institution extends.
Jury: a body of people assembled to judge the facts of a legal
case.
Laceration: deep cut or tear of the skin.
Lesion: a region in an organ or tissue that has suffered damage
through injury or disease.
Lethargy: a pathological state of sleepiness or deep
unresponsiveness and inactivity.
Lividity: bluish color of the skin.
Lucid interval: a time between injury and collapse during
which a person shows normal behavior or clarity in thinking.
MRI: magnetic resonance imaging, a form of medical imaging
that measures the response of the atomic nuclei of body
tissues to high-frequency radio waves when placed in a
strong magnetic field. It produces images of internal organs.
Macula: an oval yellowish area near the center of the retina in
the eye. It is the region of greatest visual acuity.
Medulla: short for medulla oblongata: the continuation of the
spinal cord within the skull, forming the lowest part of the
brainstem and containing control centers for the heart and
lungs.
286
Metabolic: the chemical processes that occur within a living
organism in order to maintain life.
Metaphyseal fractures: small “bucket handle” or “corner”
fractures at the ends of growing bones of children.
Midline shift: a condition where one side of the brain has
swollen to the point that it moves the midline of the brain.
Misdemeanor: a minor wrongdoing, punishable by less than a
year in jail or prison.
Mistrial: a trial rendered invalid through an error in the
proceedings, or in which the jury cannot agree on a verdict.
Mitigating: lessening the gravity of an offense or mistake.
Myelin: a whitish insulating sheath around many nerve fibers
that increases the speed at which impulses are conducted.
Neuron: a nerve cell.
Neuropathologist: a doctor who specializes in the branch of
medicine concerned with diseases of the nervous system.
Neuroradiologist: a doctor who reads X-rays, CT scans, MRIs
and other radiological images of the nervous system.
Nolo contendere: a “no contest” plea by which a defendant
accepts a conviction as though a guilty plea had been
entered but does not admit guilt.
Oath: a solemn promise, often invoking a divine witness,
declaring that one will tell the truth in a court of law.
Occiput: the back of the head or skull.
Ocular: of or connected with the eyes or vision.
Ophthalmologist: a doctor who specializes in the study and
treatment of disorders and diseases of the eye.
Parietal bone: a bone forming the central side and upper back
of each side of the skull.
Parole: the release of a prisoner before the completion of a
sentence on the promise of good behavior.
Pathognomonic: specifically characteristic or indicative of a
particular disease or condition.
Pathologist: a doctor who specializes in the causes and effects
of disease. Pathology is the branch of medicine that deals
with examining samples of body tissue in a laboratory.
287
Pathophysiology: the disordered physiological processes
associated with disease or injury.
Pediatric: the branch of medicine dealing with children and
their diseases.
Peer review: critical evaluation of scientific, academic, or
professional work by others working in the same field.
Peremptory: not open to appeal or challenge, final.
Perfusion: supply (an organ, tissue or body) with a fluid by
circulating it through blood vessels or natural channels.
Periphery: the outer limits or edge of an area or object.
Petechial hemorrhage: a small red or purple spot caused by
bleeding into the skin.
Petit jury: a trial jury, typically of 12 people, sworn to render a
verdict based on evidence presented in court.
Poll: record the opinion or vote of.
Posterior: further back in position, nearer the back of the body.
Postmortem: happening after death.
Prison: an institution to which people are sent for punishment
after they have been convicted.
Probation: the release of an offender from detention, subject to
a period of good behavior under supervision.
Rebuttal: a refutation or contradiction.
Relevant: information that relates to and helps resolve a
question.
Retina: a layer at the back of the eyeball containing cells that
are sensitive to light and that trigger nerve impulses which
pass through the optic nerve to the brain, where a visual
image is formed. (See p. 289.)
Retinal hemorrhage: bleeding in the retina of the eye,
considered an indicator of or even specific to SBS.
Sclera: the white part of the eye.
Seizure: a sudden attack, such as an epileptic fit.
Subarachnoid: denoting or occurring in the fluid-filled space
around the brain between the arachnoid membrane and
the pia mater, through which major blood vessels pass.
Subarachnoid bleeding is generally arterial (from arteries).
288
Subdural: beneath the dura mater and atop the arachnoid
membrane of the brain. Bleeding in this layer is considered
a marker for Shaken Baby Syndrome. Subdural bleeding is
generally venous (from veins returning deoxygenated blood
to the heart).
Subdural hematoma: Collection of blood in the subdural
space. There are two types of subdural hematomas: thin
film and space-occupying. Space-occupying subdurals
pressure the brain directly. Thin film subdurals do not, but
may be associated with cerebral swelling.
Subgaleal: beneath the scalp.
Suture: a seam-like immovable junction between two bones,
such as those of the skull.
SUID: sudden unexpected infant death.
Toxicology: the science concerned with detecting poisons.
Unilateral: relating to, occurring on, or affecting only one side
of an organ or structure of the body.
Vein: any of the tubes forming part of the blood circulation
system of the body, generally carrying oxygen-depleted
blood toward the heart.
Venue: the place where something happens, the county or
district within which a criminal or civil case must be heard.
Verdict: a decision on a disputed issue in a legal case or
inquest. Literally means “say truth.”
Vitreous: like glass in appearance.
Voir dire: a preliminary examination of a witness or a juror by
a judge or counsel. Old French voir (true) dire (speak).
289
Parts of the Eye
Frye and Daubert States
Frye: Alabama, Arizona, California, Florida, Illinois, Kansas,
Maryland, Michigan, Minnesota, Missouri, New Jersey.
New York, North Carolina, Pennsylvania. Washington’
Daubert: Alaska, Arkansas, Colorado, Connecticut, Delaware,
Hawaii, Indiana, Iowa, Kentucky, Louisiana, Maryland,
Mississippi, Montana, Nebraska, New Hampshire, New
Mexico, Ohio, Oklahoma, Oregon, Rhode Island, South
Dakota, Tennessee, Texas, Vermont, West Virginia, Wyoming
If a state is not mentioned, neither standard has been adopted.
290
291
Layers of the Brain
Checklist: What a Medical Expert Needs
Scalp
Skull
Epidural
Dura mater
Subdural
Arachnoid
Subarachnoid
Pia mater
Brain
To get the most for money you spend on a defense medical
expert, collect everything he needs to see and submit it together,
clearly marked for easy reference in telephone conversations
with the attorney. Include, in chronological order:
Law Enforcement
___ Police reports
___ 911 tape
___ Video statements
___ Scene photos or video if available
Child Protection Services
___ All child protective services reports concerning the family
Nerve Cell
Dendrites
Cell Body
Axon terminals
Axon
Hospital (if more than one hospital, keep records separate)
___ Emergency Medical Services or ambulance records
___ Admission sheet and emergency room admission record
___ History and physical
___ Discharge records
___ Consults, especially ophthalmology consults. Ask for
fundoscopic photographs specifically.
___ Doctors’ progress notes
___ Nurses’ notes
___ Operative notes
___ Radiology reports (CT and MRI reports) in chronological
order. Make sure the report for the first scan is included.
___ Lab reports in chronological order. Hematology,
chemistry, bacteriology, etc.
___ Medication records
___ Doctors’ orders
___ Ventilation records
___ Physical therapy records (input, output, etc.)
___ Photographs taken at the hospital
292
___ CT scans and X-rays, on CD if done digitally and copies
of films if not. Do not scan films onto CDs. The defense
doctor will need to look at the exact images reviewed by
the prosecution doctors.
___ Post-discharge information (if the child survives)
Prior Records
___ Prenatal records for the mother
___ Birth records for both mother and baby
___ Infant doctor visits, especially any shortly before the
child’s collapse
___ Medical records of siblings. Be careful to keep these
separate from the baby’s records.
Medical Examiner or Coroner’s Reports
___ Autopsy report, including diagrams and notes
___ Histology (may be handwritten)
___ Neuropathology report, both gross and microscopic
___ Eye report, including copies of photographs and recuts of
the eye slides
___ First call sheet and investigator’s report
___ Receipts for evidence
___ Death certificates, both temporary and final
___ Autopsy photographs, including prints, and if taken
digitally, digital images as well.
___ Copies of X-rays taken prior to autopsy.
___ Autopsy histology slides and if possible, unstained slides
of the brain, especially the dura mater.
___ Read the autopsy report to ensure that you have all
consultation reports. There may be others not mentioned
above (heart, etc.)
Get everything you can. If something is missing, include a page
saying what you have done to try to get it and why it’s not there.
Compile all records in order. Tab each section, including each
hospital. Number all pages consecutively with colored ink.
Links and Resources
There are too many resources to list, but these are some I found
especially helpful in my investigation of truth, justice, and
wrongful conviction. References to facts cited in Shaken can be
made available to any defense attorney with a need to know.
Recommended Books
Accused to Acquitted: The Clue Is in the Evidence, by Patricia
Horsham, 2008. The author, who lives in Ottawa, Ontario,
has advanced degrees in both medicine and law. Her
concern about overdiagnosis of child abuse and the harm it
does to children and families led to this book.
Actual Innocence: Five Days to Execution, and Other
Dispatches from the Wrongly Convicted, by Jim Dwyer,
Peter Neufeld, Barry Scheck, 2000. The authors founded
the Innocence Project in 1992 to help the wrongly convicted
appeal on the basis of DNA. This book explores systemic
errors that led to those wrongful convictions.
Anatomy of a Lie, by Diane M. Komp, 1998.
Arrest-Proof Yourself, by Dale C. Carson and Wes Denham,
2007. A former police officer and prosecutor, now criminal
defense attorney, tells you in an interesting and entertaining
way how to survive encounters with police.
Chasing Justice, by Kerry Max Cook, 2007. The author was
exonerated by DNA, but not until after he accepted a plea
bargain.
The Concise Book of Lying, by Evelin Sullivan, 2001.
293
294
Convicted but Innocent, by C. Ronald Huff, Arye Rattner and
Edward Sagarin, 1996.
Convicting the Innocent: Sixty-Five Actual Errors of Criminal
Justice, by Edwin M. Borchard, 1931. The author
summarizes 65 cases in which innocence was established in
a number of ways, including the turning up alive of alleged
murdered person. All cases are pre-DNA.
Elusive Innocence, by Dean Tong, 2002. Strongly
recommended. The author was wrongly accused of sexually
abusing his child. He shares his hard-won advice for
dealing with the child protection, civil and criminal systems.
How Doctors Think, Jerome Groopman, 2007. Explores how
thinking errors lead to medical misdiagnoses.
In Spite of Innocence: The Ordeal of 400 Americans Wrongly
Convicted of Crimes Punishable by Death, by Michael L.
Radelet, Hugo Adam Bedau and Constance E. Putnam 1992.
A Lie Never Justifiable: A Study in Ethics, by H. Clay Trumbull,
1856. Free online. The author was an American clergyman
and author who served as chaplain of the Tenth Connecticut
Regiment in 1862-65.
Lying: Moral Choice in Public and Private Life, by Sissela
Bok, 1989.
Making Monsters, by Richard Ofshe and Ethan Watters, 1994.
Explores how “recovered memories” came to be a theory
accepted in the courtroom and how the craze ended.
Mean Justice, by Edward Humes, 1999. Explores what leads to
wrongful convictions, especially in child abuse cases.
No Crueler Tyrannies: Accusation, False Witness, and other
Terrors of Our Times, by Dorothy Rabinowitz, 2003.
Strengthening Forensic Science in the United States: A
Path Forward, 2009. This government report expresses
great concern about the questionable validity of forensic
“evidence” used to convict people.
Stolen Innocence, by John Batt. Chronicles the Sally Clark
conviction based on “expert” opinion and how it was
eventually overturned.
295
Surviving Justice, by Lola Vollen and Dave Eggers, 2005. The
authors compiled the testimony of a number of people who
have been cleared thanks to DNA evidence.
Tainting Evidence: Inside the Scandals at the FBI Crime Lab,
by John F. Kelly and Phillip K. Wearne, 1998. Shows how
poor the scientific standards are even at the vaunted FBI
crime lab! Specifically covers the Oklahoma City bombing,
the Unabomber, Ruby Ridge and the O.J. Simpson case.
Telling Lies, by Paul Ekman, 1985. All about lies, liars and lie
detection.
Witch Hunt: A True Story of Social Hysteria and Abused Justice,
by Kathryn Lyon, 1998. The author, a journalist, chronicles
how she and others broke the Wenatchee, Washington, sex
abuse hysteria craze.
Wrongly Convicted: Perspectives in Failed Justice, edited
by Saundra D. Westervelt and John A. Humphrey, 2001.
Includes chapters by a number of authorities on wrongful
conviction.
Films
After Innocence. This documentary film consists of interviews
with and follow-up stories of a number of DNA exonerees.
Cry in the Dark, starring Meryl Streep. Drama of a true story
about the Chamberlain family. An Australian couple
reported their baby was taken by a dingo near Ayers Rock.
The media spun the story and the mother ended up accused,
convicted and eventually exonerated.
The Hurricane. Movie about the wrongful conviction of
boxer Rubin Carter. Carter currently resides in Canada and
heads up an organization to help the wrongly convicted:
Association in Defense of the Wrongly Convicted
(AIDWYC).
Just Ask My Children. A dramatic account of the true story of
a couple that was accused in Bakersfield. Their children
were induced to testify against them, but once they reached
adulthood, helped exonerate them.
296
Lorenzo’s Oil. This movie has nothing to do with child abuse.
It shows how a father solved the mystery of how to treat his
son’s rare illness, even though he wasn’t a doctor.
Red Corner. Drama (not based on a true story) about a
wrongful accusation in China. A good picture of how an
inquisitorial legal system works.
YouTube Videos
Don’t Talk to Police
BUSTED: The Citizen’s Guide to Surviving Police Encounters
Web Sites
Articles to share with friends. Download The Elephant on the
Moon and other articles from the top of Elaine WhitfieldSharpe’s site: http://www.sharplaw.biz/ These can be
shared with friends and neighbors who wonder what’s going
on but with whom you can’t share details of your own case.
Ask a Lawyer online. One site that provides for this is: http://
www.totalcriminaldefense.com/ Be aware that this is a site
to help attorneys connect with prospective clients. They
won’t give away too much information for free.... There are
other sites as well.
Case Assist. A web site to help you become your own best
advocate. Formerly www.accused.com.
http://www.caseassist.com/
Dead by Mistake. Hearst Newspapers site concerning medical
mistakes. http://www.chron.com/deadbymistake/
Falsely Accused. Web site with resources and links to help
individuals falsely accused of child abuse. http://falselyaccused.net/
Fully Informed Jury Association. Contains a free juror’s
handbook and advice for what to do if you’re facing charges.
http://fija.org/
Goudge Report. Ontario’s Goudge Inquiry, published in 2008,
investigated pediatric forensic pathology in Ontario and
made recommendations for improvement. You should
297
read at least the Executive Summary. The entire report is
available for download. http://www.goudgeinquiry.ca/
Innocence Project. Information on the DNA exonerations
and what led to the wrongful convictions in the first place.
http://www.innocenceproject.org/
Knowing and Protecting Your Rights: View the video at http://
www.rexattysvideo.com/
Medical Misdiagnosis Research Blog: http://
medicalmisdiagnosisresearch.wordpress.com/ Focus is on
Shaken Baby Syndrome. This site is kept up-to-date and has
links to many excellent resources.
National Child Abuse Defense and Resource Center. Dedicated
to educating professionals and the falsely accused on the
topic of false child abuse accusations. Can refer you to
attorneys and experts. http://www.falseallegation.org/
National Clearinghouse for Science, Technology and the
Law. This site provides a free, comprehensive, searchable
database of forensic resources. I found very little on a
search for “Shaken Baby Syndrome” and it may be biased
toward prosecution, but you may find some valuable
information. http://www.ncstl.org/
Panorama, TV documentary on Keran Henderson case: http://
news.bbc.co.uk/2/hi/programmes/panorama/7312438.stm
Public defender. Do you qualify? The Orange County,
California, application is at: http://www.pubdef.ocgov.com/
Def-financial.pdf.
Reason.com. Search “wrongful conviction” for several articles
by Radley Balko. http://www.reason.com/
Shaken Baby and Unsafe Convictions. This is a blog that
can keep you up-to-date with developments. It contains a
large archive of relevant articles. http://keran-hendersoninnocent.blogspot.com/
Truth in Justice. An educational non-profit organized to educate
the public regarding the vulnerabilities in the U.S. criminal
justice system that makes the criminal conviction of wholly
innocent persons possible. http://www.truthinjustice.org/
298
General and Legal Articles (in chronological order)
Lyons, Genie. Shaken Baby Syndrome: A Questionable Scientific
Syndrome and a Dangerous Legal Concept. Utah Law Review.
2003. http://www.childabuselaw.info/lawnews/Lyons_G_SBS_
Utah_Law_Review_2003.pdf
LeFanu, James. Wrongful Diagnosis of Child Abuse—A Master
Theory. Journal of the Royal Society of Medicine. 2005. http://
www.jameslefanu.com/research/wrongful-diagnosis-of-childabuse-a-master-theory
Gena, Molly. Shaken Baby Syndrome: Medical Uncertainty Casts
Doubt on Convictions. Wisconsin Law Review. October 26,
2007. http://hosted.law.wisc.edu/lawreview/issues/2007-3/gena.
pdf Anderson, Mark. The Shaken Baby Debate. Discover
December 2008, p. 61-68.
Giannelli, Paul. Wrongful Convictions and Forensic Science: The
Need to Regulate Crime Labs. Case Western University School
of Law. January 23, 2008. http://www.oranous.com/innocence/
JimmyAtes/SSRN-id1083735.pdf
Imwinkelried, Edward J. Shaken Baby Syndrome: A Genuine Battle
of the Scientific (and Non-Scientific) Experts. School of Law,
University of California, Davis. October 2009. http://papers.
ssrn.com/sol3/papers.cfm?abstract_id=1494672
Tuerkheimer, Deborah. The Next Innocence Project: Shaken Baby
Syndrome and the Criminal Courts. Washington University
Law Review. 2009 http://lawreview.wustl.edu/inprint/87/1/
dtuerkheimer.pdf
Tuerkheimer, Deborah. Criminal Justice at a Crossroads:
Science-Dependent Prosecution and the Problem of Epistemic
Contingency. Alabama Law Review. 2010. http://papers.ssrn.
com/sol3/papers.cfm?abstract_id=1579394
Selected Legal Rulings
Commonwealth of Kentucky v. Davis, Case No. 04-CR-205
People of the State of Colorado v. Martinez, Case No. 02SC152
Shirley Ree Smith v. Gwendolyn Mitchell, Case No. 04-55831
State of Missouri v. Hyatt, Case No. 06M7-CR00016-02
Clark v. State of Indiana (MySpace admissible) 915 N.E.2d 126
Ken Marsh v. San Diego County, Case No. No. CIV. 05-1568WQH
State of New Mexico v. Schoonmaker, Case No. 176 P. 3d 1105
299
Medical Articles (in chronological order)
Caffey J: Multiple fractures in the long bones of infants suffering from
subdural hematoma. Amer J Roentgen 56:163-73, 1946.
Kempe CH, Silverman FN, Steele BF, Droegemueller W, Silver HK:
The battered child syndrome. JAMA 181(1):105-112, July 1962.
Guthkelch AN: Infantile subdural hematoma and its relationship to
whiplash injuries. BMJ 11:430-431, May 1971.
Caffey J: On the theory and practice of shaking infants. American
Journal of Diseases in Children 124(2):161-169, August 1972.
Caffey J: The whiplash shaken infant syndrome. Pediatrics 54(4):396403, October 1974.
Adams JH: “The neuropathology of head injuries.” Handbook of
Clinical Neurology Chapter 3:35-65, 1975.
Bruce DA et al. Diffuse cerebral swelling following head injuries in
children: the syndrome of “malignant brain edema.” J Neurosurg
54:170-178, February 1981.
Berney J, Froidevaux AC, Favier J: Paediatric head trauma: influence
of age and sex. Child’s Nervous System 10:517-523, November
1994.
Nashelsky MB, Dix JD: The time interval between lethal infant
shaking and onset of symptoms. American Journal of Forensic and
Med Pathology 16(2):154-157, June 1995.
Smith GA, Dietrich AM, Garcia CT, Shields BJ: Injuries to children
related to shopping carts. Pediatrics 97(2):161-165, February
1996.
Willman KY, Bank DE, Senac M, Chadwick DL: Restricting the time
of injury in fatal inflicted head injuries. Child Abuse & Neglect
21(10):929-940, October 1997.
Gilliland MGF: Interval duration between injury and severe
symptoms in nonaccidental head trauma in infants and young
children. Journal of Forensic Sciences 43(3):723-725, 1998.
Duhaime AC, Christian CW, Rorke LB, Zimmerman RA:
Nonaccidental head injury in infants—the “Shaken Baby
Syndrome”. New England Journal of Medicine 338(25):18221829, June 1998.
Editor. Shaken babies. Lancet 352:335, August 1, 1998.
Plunkett, J. Shaken Baby Syndrome and the death of Matthew
Eappen: a forensic pathologist’s response. Am J Forensic Med
Pathol. 1999 Mar;20(1):17-21.
300
Wecht CH. Shaken Baby Syndrome. Am J Forensic Med Pathol.
1999 Sep;20(3):301-2.
Hartley LM, Khwaja OS, Verity CM: Glutaric aciduria type 1 and
nonaccidental head injury. Pediatrics 107(1):174-175, Jan 2001.
Barnes PD: State of the art: neuroimaging and the timing of fetal and
neonatal brain injury. Journal of Perinatology 21:44-60, 2001.
Plunkett J. Fatal pediatric head injuries caused by short-distance
falls. Am J Forensic Med Pathol. 2001 Mar;22(1):1-12.
Geddes JF et al. Neuropathology of inflicted head injury in children.
I. Patterns of brain damage. Brain. 2001 Jul;124(Pt 7):1290-8.
Geddes JF et al. Neuropathology of inflicted head injury in children.
II. Microscopic brain injury in infants. Brain. 2001 Jul;124(Pt
7):1299-306.
Levin A, Schloff S, Mullaney P, et al. Retinal hemorrhages. (Response
to Letter to the Editor re: Retinal Findings in Children with
Intracranial Hemorrhage. Ophthalmology 2002; 109(8):14721476). Ophthalmology 2002;110(9):1863-4.
Huntington, RW 3rd. Symptoms following head injury. Am J
Forensic Med Pathol. 2002 Mar;23(1):105; author reply 105-6.
Barnes PD. Ethical issues in imaging nonaccidental injury:
child abuse. Topics in Magnetic Resonance Imaging. 2002
Apr;13(2):85-93.
Ommaya AK, Goldsmith W, Thibault L. Biomechanics and
neuropathology of adult and paediatric head injury. Br J
Neurosurg. 2002 Jun;16(3):220-42.
Nassogne, MC et al. Massive subdural hematomas in Menkes disease
mimicking shaking baby syndrome. Child’s Nervous System
18:729-731, July 2002.
Uscinski R. Shaken Baby Syndrome: fundamental questions. Br J
Neurosurg. 2002 Jun;16(3):217-9. Response by Levin AV. Br J
Neurosurg. 2003 Feb;17(1):15-6.
Donohoe M. Evidence-based medicine and Shaken Baby Syndrome.
Part I: literature review, 1966-1998. Am J Forensic Med Pathol
2003;24: 239-42.
Rooms L, Fitzgerald N, McClain KL. Hemophagocytic
lymphohistiocytosis masquerading as child abuse: presentation
of three cases and review of central nervous system findings in
hemophagocytic lymphohistiocytosis. Pediatrics. 2003 May;111(5
Pt 1):e636-40.
301
Geddes JF, Whitwell HI. Neuropathology of fatal infant head injury.
J Neurotrauma. 2003 Sep;20(9):905.
Denton S, Mileusnic D. Delayed sudden death in an infant following
an accidental fall: a case report with review of the literature. Am
J Forensic Med Pathol. 2003 Dec;24(4):371-6.
Geddes JF and J Plunkett. Editorial: The evidence base for
Shaken Baby Syndrome: We need to question the diagnostic
criteria. BMJ 2004;328:719-720 (27 March), doi:10.1136/
bmj.328.7442.719
Starling SP et al. Analysis of perpetrator admissions to inflicted
traumatic brain injury in children. Arch Pediatr Adolesc Med.
2004 May;158(5):454-8.
Lantz, PE et al. Perimacular retinal folds from childhood head
trauma. BMJ 2004;328:754-756 (27 March).
LeFanu J, Edwards-Brown R. Patterns of presentation of the Shaken
Baby Syndrome: subdural and retinal haemorrhages are not
necessarily signs of abuse. BMJ. 2004 Mar 27;328(7442):767.
Goldsmith W, Plunkett J. A biomechanical analysis of the causes of
traumatic brain injury in infants and children. Am J Forensic
Med Pathol. 2004 Jun;25(2):89-100.
Bandak FA. Shaken Baby Syndrome: a biomechanics analysis of
injury mechanisms. Forensic Sci Int. 2005 Jun 30;151(1):71-9.
Looney CB et al. Intracranial hemorrhage in asymptomatic
neonates: prevalence on MR images and relationship to obstetric
and neonatal risk factors. Radiology. 2007 Feb;242(2):535-41.
Mack J, Squier W, Eastman JT. Anatomy and development of
the meninges: implications for subdural collections and CSF
circulation. Pediatr Radiol. 2009 Mar;39(3):200-10.
Squier W, Mack J. The neuropathology of infant subdural
haemorrhage. Forensic Sci Int. 2009 May 30;187(1-3):6-13.
Cohen MC, Scheimberg I. Evidence of occurrence of intradural and
subdural hemorrhage in the perinatal and neonatal period in the
context of hypoxic ischemic encephalopathy: an observational
study from two referral institutions in the United Kingdom.
Pediatr Dev Pathol. 2009 May-Jun;12(3):169-76.
Miller R, Miller M. Overrepresentation of males in traumatic brain
injury of infancy and in infants with macrocephaly: further
evidence that questions the existence of Shaken Baby Syndrome.
Am J Forensic Med Pathol. 2010 Jun;31(2):165-73.
303
Index
911 27, 30, 50, 123, 124, 152, 172, 180,
184, 230, 231, 253, 291
Alabama 167, 289
Alford plea 101, 159, 166-167
American Academy of Pediatrics
(AAP) 16, 17, 20, 23
American Prosecutors Research
Institute 219
Appeal 5, 23, 40, 57, 78, 99, 100-101,
103-104, 158, 165, 166, 167, 184,
197-202, 217-219, 237, 248, 249,
257-262, 264-265
Barnes, Patrick 33, 213, 300
Batt, John 86, 257. 294
Brady 103-104
Briggs, Brandy 164-165
British 40, 144, 220, 275 See also
English, Great Britain
Caffey, John 16, 33-35, 44, 113, 205,
299
California 37, 62, 91, 162, 176, 279280, 289, 297, 298
Canada 20, 40, 83, 144, 153 See also
Ontario, Quebec
Clark, Sally 233, 267, 275, 294
Connecticut 254, 289
Constitution 7-12, 61, 90, 96-97, 136,
153, 155, 159-162, 166, 221, 229,
238, 250, 257, 258
Court of Criminal Appeals 165, 258
Child Protection Services (CPS) 4, 31,
36, 37, 40, 43, 46-52, 81, 95, 103,
128, 165, 181, 206
Dallas 93
Daubert 97, 136, 197, 199-202, 217,
289
DNA exonerations 92-94, 5, 8, 15, 41,
45, 82, 84, 85, 126, 134, 143, 145,
158, 204, 258, 259, 260, 271, 272,
274, 278, 279, 293, 295, 297
Edmunds, Audrey 184
England 40, 86, 88, 110, 144, 153, 175,
211, 223, 248, 258 See also British,
English, Great Britain
English 90, 239
Facebook 52, 60
Federal Bureau of Investigation (FBI)
14, 139, 146, 295
Federal Rules of Evidence 198-199,
217, 229, 230
Florida 174, 289
Freedom of Information Act 51, 103
Freud, Sigmund 36, 44
Frye 97, 135-136, 197, 198, 199, 202,
289
Galveston 146
Gilchrist, Joyce 143
Goudge Report 144, 296
Grand jury 153-4, 9, 10, 60, 95-96, 101
Great Britain 40, 220
Guthkelch, A. Norman 35, 299
Henderson, Keran 239-240, 297
Holmgren, Brian 214, 224
Houston 86
Huntington, Robert III 183-184, 213,
300
Illinois 174, 289
Indiana 52, 289, 298
Innocence Project 15, 92, 93, 293, 297,
298
Jaspers, Virginia 34
Kempe, C. Henry 34, 299
302
Kentucky 201, 217, 289, 298
Lantz, Patrick 111, 301
Levin, Alex 24, 110, 228, 300
Louisiana 88, 289
Maine 250
Marsh, Ken 280, 298
Maryland 103, 144, 289
Massachusetts 145, 160, 162, 220, 259
Meadow, Sir Roy 39-40, 86, 114, 214,
233
Melendez, Juan 45, 235, 245
Michigan 204, 289
Minnesota 93, 289
Miranda warning 12-13, 95
Missouri 191, 202, 289, 298
Mistrial 100-101, 224, 239-240, 245
Mondale Act 36
Munchausen syndrome by proxy 39,
42
MySpace 52, 298
National Academy of Sciences (NAS)
145
National Association of Criminal
Defense Lawyers (NACDL) 64,
171
National Association of Medical
Examiners (NAME) 20, 146, 148,
149
National Center on Child Abuse and
Neglect 36
National Center on Shaken Baby
Syndrome 36, 114, 173, 214
National Institute of Health (NIH) 17,
219
New Jersey 160, 250, 289
New Mexico 219, 250, 289, 298
New York 1, 141, 161, 164, 250, 280,
289
New Zealand 153
Oakland 174
Oklahoma 143, 289. 295
Ontario 144, 216
Oregon 167, 175, 289
Organ donation 104, 146
Perjury 31, 63, 143, 163, 223, 224
Plunkett, John 174, 300, 301
Polygraph 5, 40, 135-140, 191, 198,
213, 258
Public defender 59, 61-64, 74-75, 78,
91, 96, 158, 218
PubMed 52, 217
Quaid, Dennis 195
Quebec 173
Ramsey, JonBenet 7-8
Recovered Memory Syndrome 38-39,
42, 294
Richardson, Natasha 173, 175, 178
Scotland 245, 258
SIDS 37, 40, 114
Simpson, O.J. 238, 256, 294
Smith, Charles 144, 233
Smith, Shirley Ree 260-261
Spock, Benjamin 44
Sullenberger, Chelsey 1-2, 274
Supreme court (state) 23, 52, 219, 257
Supreme Court, U.S. 12, 13, 103, 130,
136, 153, 154, 155, 161, 166, 167,
199, 202, 217, 226, 229, 238, 249,
257, 258, 260-261
Texas 18, 93, 160, 164-165, 176, 258,
289 See also Houston, Dallas,
Galveston
Utah 150, 167
Vaccinations 26-27, 50, 171, 188-189
Virginia 174, 258
Washington 38, 175, 250, 289, 295, 298
West Virginia 180, 289
Wisconsin 13, 175, 183-184, 298
Woodward, Louise 40-41, 82, 139, 171,
235, 244, 248
QuickList
Although you should read this entire book, time may not allow.
This checklist can help you get started and avoid early mistakes:
_ ___ Once you suspect you’re suspected, SAY NOTHING,
even to doctors. Request an attorney. At most, say, “I did
not hurt the baby in any way,” calmly, again and again as
necessary.
_ ___ Think it through. Listen to your conscience. Did you do
anything that could have hurt the baby? Reveal all details
to an attorney, not the police. Do not talk to the police.
Know how to respond to police. (see pp. 12-15, 119-20)
_ ___ Do not allow police into your home without a search
warrant. (see pp. 119-121)
_ ___ Review your constitutional rights. Don’t expect a
Miranda warning. (see pp. 9-11)
_ ___ Use someone else’s computer if you want to research
SBS until after your home has been searched and there’s
no risk police will seize your computer.
_ ___ Find a defense attorney as soon as possible and let him do
the talking for you. You can later find a different attorney
for the long haul to trial if you wish. (see pp. 57-75)
_ ___ Do not say or write anything that could be used against
you. Be cautious about texting, e-mail, Facebook, etc.
_ ___ Ask your spouse or most trusted friend to monitor media
reports. Shield yourself and your children from media.
_ ___ As time allows, begin documenting all facts and
gathering all medical records, photographs, available
information that might help solve the mystery of what
really happened to the baby. (see pp. 46-52)
_ ___ Avoid sharing details of your particular case with anyone.
Share general information about SBS. (see p. 82)
_ ___ Assess your financial situation. (see pp. 53-58)
_ ___ Begin a time line and get organized. (see pp. 46-50)
_ ___ Hire a good defense attorney. (see pp. 59-75)