Challenges to 'shaken baby' convictions mounting

2014-05-25T06:05:00Z Challenges to 'shaken baby' convictions mountingDEE J. HALL dhall@madison.com, 608-252-6132 madison.com

In January, a federal judge in Chicago issued a stunning ruling: Shaken baby syndrome as a cause of death has little to no scientific basis.

It’s not known what effect the ruling might have on other shaken baby cases, including at least one being appealed in Wisconsin. But one expert called it a “turning point” in the medical-legal debate over whether such injuries were intentionally caused.

U.S. District Judge Matthew Kennelly found that a reasonable person likely would find the medical evidence supporting shaken baby syndrome “unscientific and thus unsupportable.”

“It appears from the evidence at the hearing,” Kennelly wrote, “that the mechanism by which shaking purportedly causes these sorts of injuries is as yet unclear, assuming it exists at all.”

Last month, Kennelly ordered Jennifer Del Prete released from prison after serving 10 years of a 20-year sentence. The 43-year-old mother of two still faces the possibility of returning if the state decides to retry her on allegations that she shook to death an infant she cared for at a Romeoville, Illinois, day care center.

An estimated 3,056 shaken baby syndrome or abusive head trauma cases have been launched by U.S. prosecutors since they began issuing such charges in the 1970s, according to a database created by Northwestern University’s Medill Justice Project.

There have been 108 cases charged in Wisconsin since 1978, all but one of them since 1991, said database manager Lauryn Schroeder.

Convictions in at least 19 such cases nationwide have been overturned or sentences commuted, most often based on new medical opinions that cast doubt on the cause of death, according to Keith Findley, co-director of the Wisconsin Innocence Project.

Two Wisconsin defendants are among them: Audrey Edmunds, of Waunakee, whose conviction was overturned in 2009 after she had served nearly 12 years in prison; and Quentin Louis, of Wausau, who was released in April. Louis’ conviction was overturned in 2009, but prosecutors refiled the case. He pleaded guilty last month to reduced charges and was released from prison.

In a separate case, the Innocence Project is working on an appeal for a third Wisconsin defendant, Jennifer Hancock of Verona. She is serving a 13-year prison term.

Shaken baby syndrome — and the related diagnosis of abusive head trauma — has come under increasing scrutiny in recent years as some medical professionals, including one of its early proponents, now-retired pediatric neurosurgeon Dr. Norman Guthkelch, have questioned it as unscientific.

Some studies have shown that the triad of symptoms associated with shaken baby syndrome — brain bleeding, brain swelling and retinal hemorrhages — can be caused by factors other than abuse, including disease or accidents, such as very short falls.

“The hypothesis that the triad can be caused only by shaking or shaking plus impact is still open to serious doubt,” Guthkelch wrote in an affidavit for Drayton Shawn Witt of Arizona, whose conviction for shaking his infant son to death was overturned in 2012.

“We know that a number of other conditions — natural and non-accidental — may lead to the triad,” he wrote. “These conditions include metabolic disorders, blood clotting disorders and birth injury, to name a few.”

Ryan Steinbeigle, spokesman for the National Center on Shaken Baby Syndrome, could not be reached last week for comment on the Del Prete decision.

But in previous comments, he has said the diagnoses of shaken baby syndrome and abusive head trauma are accepted by major medical groups including the American Academy of Pediatrics, Centers for Disease Control and Prevention, National Association of Medical Examiners and American Academy of Ophthalmology. He insisted the medical controversy has been artificially created by defense attorneys and their experts.

“The opinions of these defense experts is often not based on sound medical science, but rather unproven theories and hypothesis that do not lend themselves to a standard of being based on a ‘reasonable degree of medical certainty,’ ” Steinbeigle said.

But Findley said in many of the overturned convictions, it is doctors or pathologists treating the infant or determining the cause of death — not hired witnesses — who change their medical opinions based on new research or their own experience.

“Quite a few of them are cases in which doctors have flipped,” Findley said.

Decision a ‘turning point’

The decision in the Del Prete case is a “turning point” in the effort to cast doubt about shaken baby syndrome and abusive head trauma in children with no external injuries, said Deborah Tuerkheimer, a law professor at DePaul University in Chicago.

Tuerkheimer, a former Madison resident, is the author of the just-released book, “Flawed Convictions: ‘Shaken Baby Syndrome’ and the Inertia of Injustice.” She said Kennelly’s ruling likely will be a factor in other appeals.

“That should cause other judges that are looking at much the same evidence ... to scrutinize those much more closely,” she said.

Tuerkheimer added that cases charging shaken baby syndrome or abusive head trauma “are fewer and far between than they used to be — significantly so.”

Kennelly’s ruling could have implications in Hancock’s case. The federal judge was sharply critical of two expert witnesses in the Del Prete case who also testified against Hancock in her 2009 trial in Dane County Circuit Court.

The State Journal reported last week that forensic pathologist Dr. Michael Stier said he can no longer stand by his earlier testimony that 4-month-old Lincoln Wilber died of abuse. Stier also said natural causes, including a heart virus, cannot be ruled out.

Also testifying against Hancock were Dr. Lucy Rorke-Adams, clinical professor in the pathology department at The Children’s Hospital of Philadelphia, and Dr. Carole Jenny, director of the child protection program at Hasbro Children’s Hospital and a professor of pediatrics at Brown Medical School in Providence, R.I.

Rorke-Adams declined comment. Jenny did not respond to multiple efforts to contact her.

In the Del Prete case, Kennelly found that Rorke-Adams had read autopsy photos of the 3-month-old infant upside down. The judge labeled other aspects of Rorke-Adams’ testimony in that case as “completely unbelievable and unreliable.”

Kennelly also ruled that Jenny’s testimony in the Del Prete case was contradictory, citing medical research in a book that Jenny herself had co-authored.

Initially, Jenny insisted that Del Prete had injured the infant and was the only possible suspect. Later, Jenny acknowledged that “given current medical thinking on this issue, one can no longer say automatically that the last person with the infant was responsible for the abuse,” the judge wrote.

Kennelly wrote in a footnote to his decision that the testimony and evidence presented in the Del Prete case “arguably suggests that a claim of shaken baby syndrome is more an article of faith than a proposition of science.”

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