One of my great interests in the law is with junk science. The jails and prisons in this country have probably thousands of people in them who have been convicted on the basis of junk science. Or, as in the case of Cameron Todd Willingham, NOT populated — he was executed for arson and murder on the strength of “scientific” evidence that is almost universally accepted as doubtful at best. See the Wikipedia story about him here.
About 30 years ago, as CT scans and other diagnostic imaging became more refined, prosecutors began to charge parents, babysitters and caregivers with murder or manslaughter or various forms of assault when a child has been brought to the ER with a “triad” of symptoms — subdural hematoma, retinal hemorrhages, and cerebral edema. Some research going back to the 1940’s associated those symptoms with the whiplash-like injuries that the doctors described as coming from shaking the baby so that the baby’s head snaps back and forth. If a baby has no neck strength, the head can really flop around. And doctors came up with a name for this condition — Shaken Baby Syndrome.
More than 1,000 babies a year in the United States are given a diagnosis of
shaken baby syndrome. The diagnosis is so rooted in the public consciousness that, in 2010, the Senate unanimously declared the third week of April “National Shaken Baby Syndrome Awareness Week.” [Here I am quoting stealing liberally from Professor Deborah Tuerkheimer’s op-ed in the New York Times on September 20, 2010 — “Anatomy of a Misdiagnosis.”]
The problem with Shaken Baby Syndrome was that no one has been able to subject it to scientific verification.
The theory of science is that a scientific assertion must be provable. For many years the medical “diagnosis” of Shaken Baby Syndrome had not been subjected to scientific testing or verification. In particular, no one had tried to answer one basic question — can shaking a baby actually cause these symptoms, without evidence of skull injury?
Obviously, it would be unethical to actually shake live babies to see what happens to them, but finally some biomedical engineers tried to shake baby crash-test dummies and cadavers to see what kinds of forces could be generated. One study, by F.A. Bandak, found that to cause the kinds of brain injuries reported in Shaken Baby Syndrome cases, you would have to shake the baby so hard that the muscles of the cervical spine would be severely torn. He also found that the muscles of the cervical spine would be torn at forces much lower than the forces necessary to cause brain injury. In other words, if there is only the triad — subdural hematoma, retinal hemorrhages, and cerebral edema — and no significant neck muscle injury, the brain injury cannot be attributed to shaking.
Dr. John Lloyd, who has a Ph.D. in ergonomics, has also done a study that goes in a slightly different direction; he has concluded that the force involved in shaking differs only slightly from the forces to which an infant’s head is subjected in normal activities of everyday life. See Biomechanical Evaluation of Head Kinematics during Infant Shaking vs Pediatric Activities of Daily Living.
To be sure, there is still a great deal of scientific argument over this topic, but after 20 years or more of seeming judicial unanimity, some courts have acknowledged that the issue is not clear.
The newly discovered evidence in this case shows that there has been a shift in mainstream medical opinion since the time of Edmunds’s trial as to the causes of the types of trauma Natalie exhibited. We recognize, as did the circuit court, that there are now competing medical opinions as to how Natalie’s injuries arose… the debate between the defense and State experts reveals a fierce disagreement between forensic pathologists, who now question whether the symptoms Natalie displayed indicate intentional head trauma, and pediatricians, who largely adhere to the science as presented at Edmunds’s trial. However, it is the emergence of a legitimate and significant dispute within the medical community as to the cause of those injuries that constitutes newly discovered evidence. At trial, and on Edmunds’s first postconviction motion, there was no such fierce debate.
State v. Edmunds, 2008 WI App 33, 308 Wis. 2d 374, 391-92, 746 N.W.2d 590, 598-99. In other words, times change, knowledge advances, and courts need to acknowledge scientific advances. In this case, Audrey Edmunds was granted a new trial, and the state of Wisconsin declined to retry the case. She was set free after serving almost 11 years in prison for homicide.
The records of the Virginia appellate courts show 14 cases in which a defendant has been convicted of some crime on the basis of a finding of Shaken Baby Syndrome, and 7 more cases involving a finding of Shaken Baby Syndrome in a child abuse case. I can find no indication that the defendant presented a scientific or medical witness to try to rebut the conclusion of the Commonwealth’s experts.
Obviously, to fight these cases successfully requires expert witnesses who can educate the judge and the jury about the problems with Shaken Baby Syndrome testimony, and a lawyer who is willing to grapple with these issues with some real understanding of the science.
