Shaken Baby Syndrome - Just the Allegation Ruins a Life
Posted: Friday, August 11, 2006
by Robert Bennett
Law Office of Robert D. Bennett & Associates, PC
A defense lawyer's nightmare. A severely injured infant, an indigent client who distrusted the system and her lawyer, and the full power of the state coming to bear on an innocent woman. I was appointed to represent a young, African American woman in an action brought by the Texas Department of Protective and Regulatory Services to terminate her parental rights to the injured child as well as his older brother and sister in late July, 1999. Within a few days of receiving the initial paperwork an indictment was handed down charging my client with a first degree felony, injury to a child. The warrant for her arrest was served immediately following a hearing to determine her visitation privileges, placing her in the County Jail with a $25,000.00 bond.
This article is intended to acquaint the reader with a basic knowledge of this syndrome as well as suggestions on how to prepare a proper defense and spot weaknesses in the prosecution's case.
Pre-trial Matters
In cases where the child is severely injured but does not die, or when the child is deceased but has siblings who reside or have contact with the suspected "shaker", the cases are often filed concurrently as criminal cases as well as a civil action to terminate or limit access.
This dual "front line" can work to the Defendant's advantage by allowing more extensive discovery than is usual in a criminal case. In addition to interrogatories, requests for production, and requests for disclosure, depositions are also available to assist you in preparing for the inevitable experts who will be doing their best to ensure your client gets the longest possible sentence.
Typically the experts in the case will include treating physicians of the child both prior to and following the alleged incident. Although the medical reports and records should be discoverable and/or accessible by subpoena in the criminal case, utilizing the civil discovery methods early in the proceedings guarantees you will be prepared to discuss the child's condition equipped with all of the pertinent information. Although it is probably unnecessary to point this out, I feel compelled to urge you to read each and every page of the medical records. It is possible to glean many tidbits of information which can be used to create reasonable doubt in the minds of your jurors. Often other suspects, disagreements as to extent and severity of injuries among the medical professionals, and poor terminology can be useful. In a recent case I found the physicians, without exception, used the phrasing "these injuries are consistent with Shaken Baby Syndrome". During cross examination we discussed many other conditions which could cause one or more of the symptoms and injuries of the child.
Another good reason for a very careful review of the medical records is they often contain a number of inadmissible matters which can cause their exclusion or at a minimum the redaction of the offensive information. My suggestion is to tab one copy of the records for your objections and to have another copy, with redactions already done, ready to be offered. This assures an even flow to the trial, if such is your desire, and also enables you to control the redaction method. As a practical note, often if a redaction is done with a black marker or "white out" the information can still be read by holding the paper up to the light or scratching the "white out" off with a fingernail, both of which jurors have been known to do. Instead, make your redaction, then run a copy and hold it up to a light to determine if the information can still be gleaned from the front of the page or the back.
Although a general knowledge of SBS can be obtained by reading articles and the publications cited herein, an expert should be retained at an early stage. If court appointed, a request should be made to the court to set aside funds for this purpose. The expert should be a physician well versed in child abuse issues who can assist you in deciphering the medical records as well as preparing for cross examination of the prosecution's experts, who you can be assured will be hostile to your position. In my research I quickly discovered the "professional witnesses" and proponents of SBS diagnosis are strident in their beliefs, often refusing to budge on their diagnosis as opposed to the general treating physicians who are more likely to give way on the smaller points and be more noncommital.
I would also suggest attempting to contact the physicians and experts yourself in order to determine their position on the various aspects of your case. Although you may be more successful in your endeavor than I was, since only one of the numerous expert witnesses for the prosecution would return my call and discuss the case with me, this is almost a "no lose" situation for the defense. If the expert does deign to speak to you then it is an excellent chance to expand your knowledge and to elicit positions and information which may be helpful at trial. If instead they refuse to talk to you then this can be addressed both during voir dire and on cross examination.
"Texas Rule of Evidence 702 provides that, "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." TEX. R. EVID. 702. The threshold determination for a trial court to make regarding the admission of expert testimony is whether that testimony will help the trier of fact understand the evidence or determine a fact in issue. Kelly v. State, 824 S.W.2d 568, 572 (Tex.Crim.App.1992). Before scientific evidence may be admitted under Rule 702, the proponent must persuade the trial court, by clear and convincing evidence, that the evidence is reliable and therefore relevant. Id. at 573. To be considered reliable, evidence based on a scientific theory must satisfy three criteria: (1) the underlying scientific theory must be valid; (2) the technique applying the theory must be valid; and (3) the technique must have been properly applied on the occasion in question. Hartman v. State, 946 S.W.2d 60, 62 (Tex.Crim.App.1997), citing Kelly, 824 S.W.2d at 573; see also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Under Texas Rule of Evidence 104(a) and (c) and Rule 702, all three criteria must be proven to the trial court, outside the presence of the jury, before the evidence may be admitted. Kelly, 824 S.W.2d at 573."
1999 WL 597237, Scherl v. State, (Tex.App.-Texarkana 1999).
I believe a well organized defense will file at least a simple Motion for a Gatekeeper Hearing in an attempt to restrict the nature of expert testimony if not exclude it altogether. For instance, while probably an expert on the issue of retinal hemorrhaging a pediatric opthamologist is probably not qualified to discuss and explain the cause and effect of subdural hematomas. Attached to the end of this article is a "bare bones" motion for a gatekeeper hearing which can be expanded upon with the facts of your particular case.
Without question it is necessary to obtain as much information as possible on the investigation done by law enforcement. Police reports are a gold mine of reasonable doubt, particularly in the area of medical evidence. Just as the police officer can be relied on to ask leading questions in attempting to obtain a confession, frequently they also ask the physicians leading questions in establishing chronologies and determining suspects. As is discussed below, the chronology is extremely important in determining who was present during the "window of opportunity" for the alleged abuse.
In addition to the reports and other paperwork generated by the police and investigating officers, the files of the Department of Protective and Regulatory Services are fruitful areas to dig. While TDPRS vigorously resists all efforts to obtain their files, my experience has been judges often order these turned over, particularly if there is a concurrent civil case pending. Watch carefully for redactions done by the department "in house". One set of papers I examined in another alleged child abuse case had what was supposedly the name of an anonymous tipster redacted by drawing over it with a black marker. When I held the paper to the light the sentence in fact had read "(My client's name here) immediately called law enforcement upon learning of this incident."
One important piece of evidence that is often overlooked but can be vital is the "911" call, if any was made. It is important to obtain a copy of this tape early in the process as many law enforcement agencies routinely tape over these after a few months.
Another area which is becoming extremely productive is research on the internet. A partial listing of helpful sites accompanies this article. They are valuable in providing background information as well as in locating articles of particular interest. Any experts which are identified as potential witnesses should be carefully researched in order to determine if they have published any papers or articles in the areas of expertise which may be employed at trial. These articles often provide material useful for impeachment or to "keep the expert honest". Careful research may also provide other useful tidbits. In our case, one of the co-founders of a SBS advocacy organization located in Ft. Worth was identified as a potential witness. A search on the internet provided two articles about this woman, both of which refer to the fact that she and her husband were initially accused of shaking their baby, wrongfully accused as it turns out. While ultimately she was not called as a witness, can you imagine the concessions she would have had to make regarding flawed investigations and wrongful accusations?
Medical Information
Shaken Baby Syndrome is allegedly caused by the shearing of the axonal vessels in the brain when a child is shaken violently. The massive acceleration, deceleration and twisting of the brain tears these vessels and causes a subdural hematoma, or bleeding beneath the "covering" of the brain, the dura, but between the brain and skull. Many of the symptoms and long term effects are likely caused by the pressure and swelling associated with this bleeding. Babies have an increased risk for this type of injury due to their proportionally larger heads and weaker neck muscles.
Some of the long term effects of SBS may include cerebral palsy, epilepsy, blindness, deafness, learning disorders, as well as a myriad of others.
According to most authorities, multi layered, bilateral retinal hemorrhages are almost exclusively caused by a severe shaking. These are readily visible to an opthamologist. While there are several other potential causes for retinal hemorrhages, such as automobile collisions and trauma during birth, as well as diseases such as leukemia, or diabetes, when these hemorrhages are multilayered and bilateral it is generally accepted that some form of trauma is the cause. The addition of a subdural hematoma virtually guarantees an allegation of child abuse.
In some, but not all of the cases, there may also be cerebral edema, posterior rib fractures, and finger marks on the chest wall or around the shoulders. Neck and spine injuries are also found, although the percentage of cases which involve these are not known.
A ripe area for cross examination of the prosecution's experts regards disagreements among the medical community as to specifics of SBS. The main reason for the differences in opinion are the limited number of studies which have been done on SBS, chiefly due to the nature of the injuries and the fact that the victims are unable to provide any information themselves.
A few of these disagreements concern:
How long it takes for symptoms to appear;
The issue of the degree of force required to cause the injuries is also unlikely to be productive by itself as the medical community is generally in agreement that the shaking must be of such a severity as to cause "a reasonable person to be aware of the danger...." The typical description offered by the medical professional is "[A]t one end of the spectrum the infant's chin will touch their chest while at the other end the back of the head will touch their back." It is important to note there are no studies of which I or the physicians testifying in my November, 1999 trial, were aware to demonstrate the precise degree of force required to produce either subdural hematomas or retinal hemorrhaging. It is also significant to note while retinal hemorrhages are present in a large percentage of the cases involving allegations of severe shaking they are not present on all of the cases. This would appear to be a fruitful area of "reasonable doubt" to explore with your expert.
From the defense perspective, the most productive area of disagreement among experts would likely be in the timing of onset of symptoms. By carefully studying the potential symptoms and questioning the persons associated with the child during the relevant time frame additional potential suspects may be identified as well as other potential non-intentional sources of trauma.
Almost without exception the experts will testify, at least in a case where the injuries are severe or death has occurred, that symptoms appear almost immediately. Upon initial review of a case the initial symptoms reported will likely be loss of consciousness or seizure activity, causing the person present with the child when this happens to be the most likely defendant. At first this may appear daunting, since as defense attorneys it is our job to open the "window of opportunity" as wide as possible, thereby creating more suspects who had contact with the child during the time the injury likely occurred. Careful preparation and cross examination of the experts should reveal that by "onset of symptoms" they do not necessarily mean the most severe symptoms. In my case, initial reports from police and medical records was that the first symptom was a seizure at approximately 3:30 P.M.. After a thorough review of the records, careful questioning revealed the infant had in fact been unusually irritable since early that morning as well as showing changes in his sleeping patterns, which may have actually been loss of consciousness as opposed to "napping". This opened the "window" from a matter of minutes during which only my client had contact with the injured infant, to more than eight hours and included at least two other adults as potential suspects.
Retinal hemorrhaging cannot be used to narrow the time frame for the injury with any degree of accuracy. In my case, the pediatric opthamologist testified retinal hemorrhages could not place time of injury any more exactly than a 72 hour period. Indeed, at least one article in a professional journal cautions against using these as an indicator of child abuse. See Tongue, Andrea C., M.D., "The Opthamologist's Role in Diagnosing Child Abuse", Opthamology, July 1991, Vol. 98, Number 7, pp.1009-1010, see also Duhaime, Ann-Christine, M.D., Cindy W. Christian, M.D., Lucy Balian Rorke, M..D., and Robert A. Zimmerman, M.D., "Nonaccidental Head Injury in Infants - The "Shaken Baby Syndrome", The New England Journal of Medicine, June 18, 1998, Vol. 338, Number 25, pp. 1822-1829.
If multiple MRI's were run carefully check to determine whether the subdural hematoma is expanding or static. If expanding it generally indicates a more recent injury while one that is static points to an injury somewhat older.
There is also important statistical information regarding the identity of "shakers". In a study of 151 infants conducted in Colorado it was determined that males are most often the abusers. Biological fathers were implicated in 37% of the cases, boyfriends of the mother in 20.5%, female child care providers 17.3%, and mothers only 12.6% of the time. Regardless of which class your accused falls in, obviously the statistics will usually place them in a minority of cases. See Starling, Suzanne P., M.D., James R. Holden, MS, and Carole Jenny, M.D., MBA. "Abusive Head Trauma: The Relationship of Perpetrators to Their Victims," Pediatrics, February 1995, Vol. 95, No. 2, 259-262.
Carefully watch for other potential causes of the medical problems and use your expert to evaluate other diagnoses. Recently, a case involving an Amish couple in Pennsylvania has garnered media attention. Initially accused of shaking their baby to death, a well renowned physician and expert on Amish diseases now places the blame on a vitamin K deficiency combined with a rare liver disease. (See http://abcnews.go.com/sections/living/DailyNews/amishdeath000227.html). An excellent resource for discussions of other conditions which mirror SBS and of child abuse in general is a text entitled Child Abuse: Medical Diagnosis and Management by Robert M. Reece, M.D. and published by Williams & Wilkins. I ordered my copy from an online bookstore and would highly recommend it be an addition to the library of anyone who represents clients accused of child abuse or neglect.
Semi happy ending. The jury in my case was out 35 minutes and acquited my client. We are now in the process of having her children returned to her, as well as obtaining counseling for the stress she has had to endure. As a result of her incarceration she lost both her job and home. Her child, now 11 months old, is expected to have significant long term problems from his injuries.
The true abuser remains at large.
Posted by Robert D. Bennett from www.sbslawyer.com and www.bennettlawoffice.com
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Top-level comments on this article: (1 total)THE TRUE ABUSER IS THE VACCINE. SCIENTIST HAVE BEEN INJECTING MICE WITH DPT VACCINE TO CREATE SUBDURAL AND RETINAL HEMORRHAGES, FOR DECADES. DOCTORS KNOW ITS VACCINES AS WELL, THEY CHOOSE TO HIDE THAT FACT BECAUSE IT IS SUCH A HIGH DOLLAR BUSINESS THAT HAS CAUSED MASSIVE DESTRUCTION TO CHILDREN AND SOLDIERS AS WELL. VACCINES ARE A DIRECT INSULT TO OUR CREATOR. THEY CONTAIN MANY POISONS THAT DESTROY THE IMMUNE SYSTEM. THEY ARE THE MAJOR CAUSE OF SIDS AND SBS AND AUTISM. LOOK UP" VACCINES AND SBS"OH PLEASE ..............................................
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