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?”