SHAKEN BABY SYNDROME AS A CONTROVERSY IN WRONGFUL CONVICTION CASES.

• Author: Zakirova, Eza Bella

1. INTRODUCTION

   Shaken Baby Syndrome ("SBS") is a controversial medical diagnosis that has led to wrongful convictions. Since 2001, there have been about 2,000 cases where defendants were charged with SBS (1) and out of those, in 213 cases "charges were dropped or dismissed or convictions were overturned" when secondary analysis showed that the victim has suffered from something other than SBS. (2) One of the primary causes for misdiagnosis of SBS, which potentially leads to a wrongful conviction, is the misconception of signs and symptoms which, when present all at once, are considered to fall under the umbrella of SBS. (3) Often, when a defendant is suspected of shaking the infant to death, the medical expert checks whether the victim has the following three symptoms, also known as the "classic `triad': retinal hemorrhages (bleeding of the inside surface of the back of the eye); subdural hemorrhages (bleeding between the hard outer layer and the spongy membranes that surround the brain); and cerebral edema (brain swelling)." (4)

   SBS, as a medical diagnosis, was first discovered by Norman Guthkelch, a pediatric neurosurgeon, who first discussed it in his 1971 journal article studying subdural hematomas and how they can lead to whiplash injuries. (5) This was the first medical source to talk about this diagnosis which stated that subdural hematomas can occur after repeated shaking of the infant, as opposed to "direct violence." (6) In other words, Guthkelch hints that SBS may occur from the repeated shaking of the child on separate occasions and is not a one-time incident. (7) To prove his argument, he conducted an experiment where he examined twenty-three cases of children (8) whose families were strongly suspected of child abuse and found that there is a chance that a child may undergo abuse and receive subdural hematomas, leading to SBS. (9) Although this study is based on a small sample size, it has caused a wave of a new perspectives on child abuse from forensic and legal standpoints. Even if "solid statistics are limited regarding the incidence of [SBS]" (10) its description was enough to shift public and jury perceptions of defendants suspected of causing SBS. (11) Therefore, Part II of this article identifies issues with definitions of SBS provided by an official, medical source and how they can influence the jury to pre-judge the defendant before evidence hearing. Part III will discuss how the court's over-reliability on forensic expert testimony leads the jury to have a negative perception of defendants as "baby-killers." Part IV will utilize case analysis and discuss the lack of clarity on who is an expert that can best determine whether the victim has suffered from SBS or not. Part V will discuss the necessary recommendations to be considered to eliminate wrongful conviction based on controversial SBS.

2. DEFINITIONAL ISSUES

   Due to a growing concern of SBS, health departments began acknowledging it as a nationwide issue. (12) For instance, the New York State Department of Health states that "[a]n average of 33 children under the age of 4 years old is hospitalized each year for SBS." (13) However, "due to various terms used in medical and hospital records as well as under-recognition of [SBS]" there is a lack of a concrete definition, along with a concise list of signs and symptoms that medical experts, judges, and lawyers can rely upon to make accurate decisions. (14)

   Among the issues with the definitions for SBS is that it contains signs and symptoms that are known to other diagnoses as well. (15) Other studies have shown that medical professionals may misdiagnose SBS for other diagnoses such as meningitis or encephalitis and therefore lead to an under-report of child abuse. (16) However, in the cases being analyzed for this article, medical professionals have incorrectly claimed that these were cases of SBS and child abuse, when in fact they were not. A majority of cases which have been wrongfully identified as SBS are actually cases of Sudden Infant Death Syndrome ("SIDS") and Venous Sinus Thrombosis. (17) Illustrative examples of wrongful conviction cases where forensic experts misdiagnosed the victim to have suffered from SBS, when in actuality they have suffered from SIDS, include Teresa Engberg-Lehmer, (18) Joel Lehmer, (19) and Sean Ralston. (20) Cases involving Venous Sinus Thrombosis include Julie Baumer (21) and Drayton Witt. (22) Other misdiagnoses include Hypoxic Brain Damage (23) found in the case of Krystal Voss, (24) and sickle cell anemia (25) in the case of Melonie Ware. (26) Each of these diagnoses includes retinal hemorrhages, internal bleeding, and brain damage, which are also symptoms of SBS. (27) Therefore, since 2009, "the [American Academy of Pediatrics] reclassified [SBS] as Abusive Head Trauma to be more inclusive of all the ways a child's head can be injured through abuse, including but not limited to violent shaking." (28) However, in the past, because SBS has been given much attention and discussed as a syndrome that has been under-reported, (29) the forensic experts have diagnosed it to numerous victims, leading to wrongful conviction.

   Therefore, to achieve an accurate expert testimony, it is important for the forensic expert, from either the prosecution or the defense, to notify the judge or jury that certain symptoms may be similar to other diagnoses. The expert should further discuss the possibility of the victim to have been suffering from SBS alone and not any other relatable diagnoses. (30) However, in the mentioned wrongful conviction cases, "[t]he presence of these three signs was understood to be pathognomonic--or exclusively characteristic--of SBS," (31) until new research discoveries which showed that there are diagnoses which may be falsely considered as SBS, making it a controversial medical diagnosis.

   In order to appropriately rely on forensic expert testimony during deliberations, the jury must be instructed as to the definitions of important terminology related to the evidence discussed in the courtroom. (32) Mayo Clinic, a first-ranked hospital in the nation, (33) defines SBS as a form of child abuse which differs from physical abuse in the way that this abuse causes internal brain damage and may not be evident on the victim's body. (34) Among the causes, the Mayo Clinic states that SBS is usually committed "when a parent or caregiver severely shakes a baby or toddler due to frustration or anger--often because the child won't stop crying." (35) This definition alone contains a range of important factors, which if presented to the jury in the courtroom, may lead to a biased verdict. Specifically, the definition points to two possible aggressors, the parents or the caregivers. (36) In other words, if the defendant is the parent or caregiver, then the definition already provides a guilty verdict for the defendant. It does not clarify that there might be other possible aggressors or even incidents that can cause the same diagnoses. (37) Further, the definition also describes a possible event that could have occurred between the aggressor and the victim, causing the fatal end. (38) If such definition is presented by the prosecutor to the jury, it already provides a visual chain of events that might have occurred between the defendant and the victim. Since the Mayo Clinic is considered as an official and valid source for definitions, then such a definition could potentially be presented in the courtroom. This is true even if definitions contain inculpatory information that can cause the jury to pre-judge the defendant before hearing out all the present evidence.

   Like the Mayo Clinic, HealthLine, a consumer health information site, (39) states that "[s]haking a baby is a serious and deliberate form of abuse." (40) This definition hints to the defendant's intent or mens rea (41) in causing SBS which, along with the actus reus, (42) points to the presence of a crime, thereby allowing the prosecution to press charges and the jury to convict the defendant. (43) In addition, the definition includes the term "deliberate," (44) which hints to the fact that the defendant must have shaken the infant either purposely or knowingly, calling forth the prosecutor to seek the most serious charge for the defendant and a harsher sentence. (45)

   Therefore, to support the presence of the defendant's criminal mind, the Mayo Clinic clarifies that "[s]haken baby syndrome isn't usually caused by bouncing a child on your knee, minor falls or even rough play." (46) In addition, Baby Center: An Expert Advice, which also defines SBS, states that "[a]n accidental fall is also extremely unlikely to cause the condition," (47) which eliminates other types of criminal intent. (48) Further, if the defendant will provide his or her own story of the incident, the above-mentioned clarifications are already present to dispute any story that will describe accidental or self-inflicted injuries by the child or an accident during a play.

   In terms of who may be the guilty party, Mayo Clinic states that "men are more likely to cause shaken baby syndrome than are women." (49) Such conclusion is provided to the public without any statistical support. (50) As a result, it may cause potential jurors to harshly convict a male defendant being charged with child abuse due to SBS, as seen in the wrongful conviction cases of Sean Ralston, (51) Warren Hales, (52) Joel Lehmer, (53) John Pee1, (54) and Drayton Witt. (55)

   Furthermore, when it comes to the risk factors, the Mayo Clinic states that the aggressors, either the parents or the caregivers, may have or be unable to deal with "unrealistic expectations of babies [, y]oung or single parenthood[, s]tress[, d]omestic violence[, a]lcohol or substance abuse[, u]nstable family situations[, d] epression[, a] history of mistreatment as a child." (56) All of these factors are potentially associated with the defendant and the family where the victim...