Shaken Baby Syndrome (SBS) Expert Testimony – This HAS to get fixed.

I was planning to post an article about the minefields and pitfalls involved in expert testimony in general, but after thinking about it, I decided that there is a specific area that deserves special consideration – expert medical testimony in SBS cases.  The “general case” I will save for another day.

I cannot say that I’m deeply experienced, but over the last 4+ years, I’ve been personally involved in five separate SBS cases (all still ongoing), and have become a student of the subject in general.  I’m not an attorney, and I’m not a doctor.  I’m an engineer by training, and have spent a 42 year career deeply involved in a broad range of sciences and technologies, which has taught me the value of “cause and effect” and “root cause” analysis, as well as for the “scientific method” and “design of experiments”.  So I think I can kind of figure out what’s going on.

My study of the early medical literature on the subject, tells me that the origins of the “triad” theory of SBS causation (reference) were founded on conclusions from “studies” (by Drs. Guthkelch and Caffey) that resulted from logically flawed inductive reasoning and experimental sample sizes that were so small as to be statistically meaningless.  But somehow, the “triad” became embedded in pediatric medical dogma, and has been so for the last 30 years.

Over the last ten years, new studies, new discoveries, and new realizations have proven that the triad is not pathognomonic (exclusively indicative) of SBS.  There are lots of other things than can cause this combination of symptoms, among them short-distance falls, genetic conditions, and a number of diseases.  However, the medical community and the justice system have stubbornly refused to accept this new data.

Within the medical community, the SBS triad has become so entrenched that for a doctor to question it risks career damage.  The American Academy of Pediatrics has for years taken an official position of unwavering support for the triad, even in the face of new information and new data.  I tried for a period of three years to recruit a local Cincinnati pediatrician, practicing or retired, who would be willing to provide medical input on SBS cases to the Ohio Innocence Project at the University of Cincinnati College of Law.  The Chair of the Pediatrics Department of Cincinnati Children’s Hospital declined to even speak to me, and this was typical of the response I got everywhere I went.  I finally gave up.

So, we have a medical establishment that is still deeply committed to a theory that rests upon insufficient, and certainly questionable, statistical validation.  But we also have an, as yet, small cadre of medical professionals who have been open to the new findings and realizations, and have had the courage to advocate for scientific truth.  Two of the most notable among these would be Dr. John Plunkett, a Minnesota pathologist, and Dr. Waney Squier,  a British pediatric neuropathologist; both of whom have been on the forefront of defending against the blind acceptance of the triad in SBS cases.  My view is that for the medical establishment, the issue has become almost wholly “political” and downright “religious” in nature, and consequently, ‘confirmation bias’ rules supreme.

SBS is, as far as I can tell, unique in the justice system, because it is the only crime in which conviction relies solely upon medical testimony.  In fact, Prof. Deborah Tuerkheimer of the DePaul University Law School, a legal scholar who has studied and written on the justice system aspects of SBS, coined a phrase when she wrote that a post mortem determination of triad symptoms in an infant is a “medical diagnosis of murder.”

Think about it.  The medical establishment, and particularly the American Academy of Pediatrics, is heavily invested in the triad-SBS theology.  If they had to admit that they were wrong about the pathognomonic nature of the triad and SBS, there would be enough egg on enough faces to make fried egg sandwiches for the city of Chicago.  The American Academy of Pediatrics has sensed the rising tide of skepticism about the triad, and has been redoubling its political and propaganda effort to support the triad – even going so far as to officially rename the (SBS) syndrome Abusive Head Trauma (AHT).  And while the skeptics have been conducting “medical studies” to try to get at the truth, the entrenched supporters of the triad have been conducting “medical studies” with the intent of confirming what they already believe to be true.

So we have a majority of the medical establishment willing to provide “experts” to testify for the prosecution as to the validity of the triad in every case in which it occurs.  And we have a small, but highly dedicated, group of medical professionals who have taken up the call to testify for the defense as to the invalidity of the triad when any one of a number of other symptom-causing conditions may be present.  So we wind up with “dueling experts”.  How the hell is a jury going to know who or what to believe?  One way this gets resolved is through sheer force of numbers.  The prosecution can almost always afford more experts than the defense, and the jury gets swayed by the fact that the prosecution presented three experts and the defense only presented one, if any.  This is hardly justice.  This is “who can pay for the most experts.”  Another way this gets handled is to attack the other side’s experts.  I am currently involved in an SBS case in which a deputy assistant coroner, who had been on the job for less than a month, ruled that the death of an infant was caused by blunt force trauma to the head.  The defense presented testimony from three internationally acclaimed pathologists emphatically stating that it couldn’t possibly have been blunt force trauma.  The prosecutor then proceeded to tell the jury that these experts were “whores who would do anything for money.”  This must have worked, because the jury convicted, and our client has  now been in prison for the last 13 years.  You can see that this all comes down to just a game of who can provide the most experts and/or who can most effectively attack the other side’s experts.  This is not “truth seeking” and this is not justice.

At least with regard to the SBS triad, can this “dueling experts” quandary ever be resolved?  Although the “triad doubters” continue to make steady progress, if the current state of affairs continues, it will take time measured in generations before we can arrive at a mutually agreed upon explanation of triad symptoms in all cases.  Indeed, as Nobel physicist Max Planck said,  “A new scientific truth does not triumph by convincing its opponents and making them see the light, but rather because its opponents eventually die, and a new generation grows up that is familiar with it.”  But can justice wait for the truth to evolve one funeral at a time?  I would hope not.

I’ve just had the opportunity to reread Prof. Tuerkheimer’s 2009 paper titled THE NEXT INNOCENCE PROJECT: SHAKEN BABY SYNDROME AND THE CRIMINAL COURTS.  I include it here for your reference:

The Next Innocence Project

In her conclusion, she suggests that perhaps the way to bring an end to this medical stalemate would be for the National Academy of Sciences to investigate it and be the “decider”.  I, personally, think this is a brilliant idea.  The NAS did a superlative job with its comprehensive report, Strengthening Forensic Science in the  United States, which is having a profound effect on the practice and use of forensics in our justice system.  To have an indisputably authoritative and objective scientific body take this on would be wonderful.  But there are a couple of “catches”.  The forensics report had to be commissioned by Congress, and … could even the NAS take on the behemoth of the US medical establishment.  Well, my view is – you don’t know until you try.  I’m sitting here pondering – how do we give this idea “legs?”

16 responses to “Shaken Baby Syndrome (SBS) Expert Testimony – This HAS to get fixed.

  1. Thank you for the excellent article. I never realized there was still so much support in the medical community regarding SBS. That is a tough battle.

  2. There was a Dr. in Canada, I think his name was Smith, that was instrumental in the conviction of many people due to this junk science. I believe he was relieved of his medical license in the past few years. Some of the convictions have been overturned, and some are in process.

  3. Michelle – You are correct – Dr. Charles Smith was relieved of his medical license. Here is a link – http://www.cbc.ca/news/canada/story/2009/12/07/f-charles-smith-goudge-inquiry.html. Perhaps Dr. Daryl Steiner of Akron Childrens Hospital should also be investigated.

    • I am one of many in the area served by Akron Childrens Hospital, and am in strong agreement Dr. Daryl Steiner head of the C.A.R.E. unit should be investigated and all cases where he has provided testimony should be reexamined. Many families including mine have been ripped apart from his so called expertise of SBS.

  4. Jeffrey Havard was wrongfully convicted by false SBS expert testimony. It’s a horrendous case of injustice.

    http://www.change.org/petitions/united-states-district-judge-keith-starrett-grant-jeffrey-havard-a-new-trial-to-prove-he-was-wrongfully-convicted

  5. Linda Thompson

    My son Brandon was wrongly convicted of SBS. The child is perfectly fine and my son sits in prison. I am trying to get a web site set up for him for support. I will let you know when it is up. Great article

  6. Thank you, Phil Locke, for a spot-on, from-the-heard account. I’ve been following the shaken baby syndrome debate for 15 years now, and am disheartened at how little has changed. My files bulge with improbable convictions.

    After the 2010 conference by the National Center on Shaken Baby Syndrome—-where the speakers were reporting that they never prosecute “triad-only” cases—-I approached several of the organizers with the story of a babysitter in my county who was, indeed, prosecuted on the basis of the triad alone. One told me he didn’t want to discuss specific cases, and the others have ignored me.

    For the story of that case, please see http://onsbs.com/cases/another-disturbing-case/

    Note the date was 2001. The only thing that’s changed is that the group of dissenters, still small, has grown larger.

    Thank you for adding your voice to an important debate.

    • Thanks, Sue. I do think that if the NAS would take this on that some real progress might be made, but it is such a politically thorny issue – even more than forensics in general – I’m not sure they’d have the “intestinal fortitude”, and in addition, it would have to be commissioned by Congress to pay for it.
      Keep up the good fight.

  7. Hello, there will be a very interesting Shaken Baby case (with confirmed Genetic Defects on the baby girl & the father) happening in New York City (Queens County Criminal Court) next week (Trial will begin on Jan 9, 2013). It will be a big battle of Medical/Genetic Science going on. This court case may be the watershed case where future cases will cite this case as a reference. Although the prosecutors have unconditionally dismissed all charges against the mother Ying Li (with no strings attached, because Ying Li adamently refused to yield to prosecutors on anything in exchange for freedom), the father Hang Bin Li is still facing jury trial next Wed, Jan 9, 2013. See my blog on WordPress for details. I keep a collection of news update.

    http://ny121asil.wordpress.com/2012/01/15/please-help-this-couple-genetic-conditions-vs-shaken-baby-syndrome/

  8. Let me clarify: so far 6 members of the jury have been selected on Jan 3, 2013. The remaing 6 members plus alternate jurors will be selected soon. The actual trial date is set for Wed, Jan 9, 2013 for the Shaken Baby and big battle of Medical/Genetic science trial in Queens County Criminal Court in New York City.

    This is a must-watch trial for the Shaken Baby community of experts.

  9. Pingback: Verdict in Hang Bin Li SBS Case Devastates Supporters | Wrongful Convictions Blog

  10. Excellent article. I wonder if the AAP is taking such a hardline because they are afraid that admitting to being wrong about the “triad” will undermine some of their other positions?

  11. do you have any contact information for Dr John Plunkett?

  12. Pingback: Medical ‘Folklore’ Yields Yet Another Shaken Baby Wrongful Conviction | Wrongful Convictions Blog

  13. Pingback: Shaken Baby Syndrome – Where Are We? – A Reality Check | Wrongful Convictions Blog

  14. If anyone has a name of doctors or specialists who disagree with the triad theory in CA please reach out to me.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s