TABLE OF CONTENTS I. INTRODUCTION II. THE AGE OF SBS III. SCIENTIFIC EVOLUTION A. Flawed Science B. Shifted Consensus 1. The Myth of Pathognomony 2. Lucid Intervals 3. Removing the Shaking from the Syndrome IV. SBS AND THE LAW A. Investigation and Prosecution 1. Prosecutorial Training 2. Caregiver Accounts 3. Reification B. Evidentiary Challenges C. Jury Verdicts D. Insufficiency Claims E. Post-Conviction Proceedings 1. Edmunds 2. Beyond Edmunds V. CONCLUSION I. INTRODUCTION
Natalie Beard died on October 16, 1995. (1) That morning, her mother had brought the seven-month-old to the home of her day care provider, Audrey Edmunds. (2) The baby was by all accounts fussy. (3) According to the caregiver's account, shortly after the baby was delivered to her, Edmunds propped Natalie in her car seat with a bottle, (4) left the room, and returned a half-hour later to discover her limp. (5) Edmunds--herself a mother-immediately called 911 to report that Natalie appeared to have choked and was unresponsive. (6) Rescue workers responded minutes later and flew the baby to the hospital, where she died that night. (7)
Prosecutors charged Edmunds with murder based on the theory that Natalie had been shaken to death. (8) No witness claimed to have seen the defendant shake the baby. (9) There were no apparent indicia of trauma. (10) Edmunds maintained her innocence throughout. (11) Yet a jury convicted Edmunds on the sole basis of expert testimony that Natalie suffered from Shaken Baby Syndrome (SBS). (12) A court sentenced Edmunds to eighteen years in prison. (13)
In important respects, this case falls squarely within the "shaken baby" prosecution paradigm that developed in the early 1990s. The infant (14) had no external injuries suggestive of abuse. (15) The accused (16) was unable to provide an explanation for the child's condition. (17) The medical evidence against the defendant consisted of the three diagnostic symptoms comprising 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). (18) The presence of these three signs was understood to be pathognomic--or exclusively characteristic--of SBS.
At trial, the prosecution's experts testified that "only shaking, possibly accompanied by impact" could explain the injuries. (19) Regarding the force necessary to cause these injuries, jurors heard the explanation typically offered in these cases: the force was equivalent to a fall from a second- or third-story window, or impact by a car moving at twenty-five to thirty miles an hour. (20) The prosecution's experts concluded that the shaking necessarily occurred while the baby was in the defendant's care, since the trauma of the shaking would have caused immediate unconsciousness. (21) The scientific basis for SBS was not challenged by the defense (22) And indeed, at the time of Edmunds's trial, the medical consensus on this issue was overwhelming. (23)
All of this is standard fare for an SBS prosecution. (24) With rare exception, the case turns on the testimony of medical experts. Unlike any other category of prosecution, all elements of the crime--mens rea and actus reus (which includes both the act itself and causation of the resulting harm)--are proven by the science. Degree of force testimony not only establishes causation, but also the requisite state of mind. (25) Unequivocal testimony regarding timing--i.e., that symptoms necessarily would appear instantaneously upon the infliction of injury--proves the perpetrator's identity. In its classic formulation, SBS comes as close as one could imagine to a medical diagnosis of murder: prosecutors use it to prove the mechanism of death, the intent to harm, and the identity of the killer.
Edmunds is a representative shaken baby case in every respect but one. On January 31, 2008, Audrey Edmunds was granted a new trial on the basis of an evolution in scientific thinking. For the first time, a court examining the foundation of SBS concluded that it had become sufficiently eroded that a new jury probably would have a reasonable doubt as to the defendant's guilt. (26) According to the court, "a shift in mainstream medical opinion" (27) had undermined the basis of the SBS diagnosis, raising the distinct possibility that Edmunds, who was still serving her eighteen-year sentence in Wisconsin, had done nothing whatsoever to harm the child. As is true of an unknown number of convictions like it, (28) the science upon which the defendant's conviction rested had advanced, raising the specter of innocence.
This Article explores what ensues when medical certainty underlying science-based prosecutions dissipates. (29) It asks how a scientific revolution penetrates the criminal justice system and whether our legal system effectively responds to the inevitable consequences of science outpacing the law. The remarkable transformation of SBS provides a unique vehicle for probing these questions.
This examination begins in Part II, which places SBS prosecution in historical context, exposing the recent and rapid ascendance of a paradigm that, until now, has gone largely unnoticed. (30)
Part III assesses the current scientific controversy. A critical look at the creation of SBS exposes a diagnosis flawed from its inception by a tainted methodological approach, one, in all likelihood, corrupted by a too-close medical-legal nexus. (31) In recent decades, researchers have uncovered these failings, and the diagnosis has evolved accordingly. There is now general agreement among the medical community that the previous incarnation of SBS is invalid. (32) The particulars of this evolution are striking specially from a criminal justice standpoint. Despite continued controversy around aspects of the diagnosis, Part III identifies a number of key areas where the framework for debate itself has been significantly altered. This discussion reveals that the new SBS is different enough from what came before to raise serious challenges to a substantial number of criminal convictions.
Specifically, these scientific developments have cast into doubt the guilt of an entire category of defendants: those convicted of crimes based on a triad-only SBS diagnosis. 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 reveals that this injustice is commensurate with any seen in the criminal justice arena to date. (33)
Part IV chronicles the criminal justice system's treatment of the changing science. I do so by surveying the various stages in the criminal process where actors make decisions with the potential to account former overlook scientific developments of the past decade. Police and prosecutors investigate cases and prosecutors decide whether to pursue charges. (34) Defendants and prosecutors make Daubert and Frye challenges to the admissibility of scientific evidence. (35) Jurors determine whether guilt has been proven beyond a reasonable doubt. (36) Defendants appeal and collaterally attack their convictions based on insufficiency of the evidence. (37) And defendants make motions for post-conviction relief because new evidence has been discovered. (38)
This procedural approach to understanding how the law integrates new scientific knowledge uncovers a response that is halting and inconsistent. I focus my critique on the system's treatment of cases in which SBS diagnoses rest on outmoded medical dogma. What can be discerned about the status quo is alarming. Guilt is being assigned where the best available science creates, at the very least, reasonable doubt. When an outcome reflecting the best available science is generated, it is not because the factual predicate for the prosecution diverges from the typical case but, rather, because the defendant is able to mount an aggressive attack--one that requires resources--on a body of science whose vulnerability is, in theory, equally exposed to all.
In short, prosecutors and courts are differentially absorbing scientific developments, resulting in an arbitrary distribution of justice. (39) Since January 31, 2008, when Edmunds's new trial motion was granted, dozens of convictions based on SBS have been upheld, either on direct appeal or collateral attack. An unknown number of prosecutions have been initiated and an unknown number resulted in convictions. (40) While a portion of these cases rely on corroborating medical evidence of injury beyond the triad, (41) many do not.
The story of our legal system's response to SBS speaks to how crime is constructed and reified. It tells of institutional inertia and a quest for finality (42) that sit uneasily with our commitment to justice. And it demands consideration of where we go from here. By identifying a problem of tragic dimensions, I hope to begin a conversation that seeks solutions and situates itself in the emerging discourse on innocence. (43) The conceptual implications of this inquiry--for scientific engagement in law's shadow, for future systemic reform, and for the notion of innocence in a post-DNA world--should assist in the task of righting past wrongs and averting further injustice.
The Age of SBS
The first appeal of an SBS-related conviction was reported in 1984. (44) Based on the presence of bilateral retinal hemorrhages and subdural hematoma, the prosecution's expert concluded that a four-month-old infant had been shaken to death, (45) and the appellate court affirmed the sufficiency of the evidence to convict. (46) Over the next five years, less than fifteen appeals of convictions based on an SBS diagnosis were reported. (47)
Beginning in 1990, however, the number of appeals grew dramatically. In five-year increments, published appellate decisions increased from 74 (January 1...