A soon-to-be-published analysis of shaken baby cases and recent developments in the medical community by University of Maine School of Law professor Deborah Tuerkheimer presents persuasive evidence and raises troubling questions about whether many of these convictions were of innocent people who were found guilty on the basis of faulty science. The analysis is scheduled to be published in September by Washington University Law Review.
Tuerkheimer, who is joining the DePaul University College of Law faculty on July 1, points to new research in the United States and abroad showing that a variety of circumstances, including something as seemingly innocuous as falls from a short height, can cause fatal head injuries that appear very similar to injuries routinely diagnosed as SBS.
If research shows that the physical conditions that once automatically resulted in a prosecution could actually have been the result of an accident, the implications are enormous.
“Given the scientific developments…we may surmise that a sizeable portion of the universe of defendants convicted of SBS-based crimes is, in all likelihood, factually innocent,” Tuerkheimer writes, adding that a far greater number of defendants among the group were likely convicted on legally insufficient evidence.
“While we cannot know how many convictions are ‘unsafe’ without systematic case review, a comparison of the problematic category of SBS convictions to DNA and other mass exonerations to date reveals that this injustice is commensurate with any yet seen in the criminal justice arena,” Tuerkheimer writes.
Keith Findley, a clinical professor of law and co-director of the Wisconsin Innocence Project, who headed Audrey Edmunds legal team, said, “The system is sending people to prison based on findings of beyond a reasonable doubt when in many of the cases the only evidence is medical evidence on which many medical experts…have a substantial doubt.”
He added, “This is not about being opposed to child abuse prosecutions. No critic of SBS theory wants anyone to get away with child abuse, but when the diagnosis becomes the entire basis for the prosecution, that’s problematic.”
Read the full story for more detail on why such testimony has come under fire. Convictions are still being obtained based on this forensic theory even though “there is no consensus among medical professionals as to whether the symptoms that have traditionally been attributed to SBS are necessarily indicative of intentional shaking.”
Like arson, this is a crime for which people can be convicted based solely on "expert" forensic testimony. But the underlying tenets of "shaken baby syndrome," which have been relied upon in court for many years, have now been widely disputed by credible, scientific research:
Dr. Bruce Gross, a Fellow of the American College of Forensic Examiners, writing earlier this year in The Forensic Examiner, noted that studies have called into question the SBS triad as the result of only violent shaking. “The prevailing notion is that the injuries ‘characteristic’ of SBS are equivalent to those seen in a 35 mph automobile accident in which the infant victim was unrestrained, or a fall from a two –story building. Yet, research (including biomechanical analysis) has shown that, although fortunately not the norm, infants and toddlers can and do die from falls as short as 1-4 feet.”
Gross added, “In brief, biomechanical research suggests that basing the diagnosis of SBS only on the presence of the triad of symptoms [retinal hemorrhage, bleeding in the brain and brain swelling] lacks scientific certainty.”
Last year I got to hear a presentation about some of the biomechanical simulations that appear to undermine the traditional shaken baby diagnosis. Bottom line: the symptoms that supposedly characterize SBS could also have been explained by accidents or birth defects, but doctors instead testified it could only have happened through malicious shaking. These conclusions were based on speculative theories that, by their original authors' own admission, relied on circumstantial guesswork rather than experimentation and proof. Today more experimentation has been done and the original SBS theorizing would never hold up to peer-reviewed scrutiny. But the power of precedent continues to give such theories a foothold in the courtroom.
When you think about it, the death of a baby is already such a terrible event, how much more would it compound the tragedy to then falsely accuse a parent or child care worker of homicide? But to judge by the latest research, that appears to be exactly what's happened in many of these cases since the diagnosis was first popularized in the '70s.
The shaken baby cases provide further evidence, if more were needed, that innocent people can be convicted in many more circumstances than just those where DNA is available to definitively exonerate a defendant.