Saturday, March 21st, 2015
Six years ago, in a tidy home day care on the edge of a cornfield, with angel figurines in the flower beds and an American flag over the driveway, 9-month-old Trevor Ulrich stopped breathing. He had contusions on his scalp and bleeding on the surface of his swollen brain.
Within weeks, day-care owner Gail Dobson was charged with killing the baby in a fit of frustration at the business she had run for 29 years along a rural stretch of Maryland’s Eastern Shore. The Sunday school teacher and grandmother of three was convicted of second-degree murder in 2010, eight months shy of her 54th birthday, and sentenced to 20 years in prison.
“To me, she is a monster,” Trevor’s mother told a local television reporter in 2013. “She is a cold-hearted killer.”
But what prosecutors called a clear-cut case of child abuse is now mired in doubt. Two doctors working on Dobson’s appeal last year argued that the scientific testimony used against her was fundamentally flawed. A judge overturned the conviction and ordered a new trial, finding that a jury hearing that argument could have had “a reasonable doubt” about her guilt.
Doctors for the prosecution said Trevor had been a victim of Shaken Baby Syndrome, a 40-year-old medical diagnosis long defined by three internal conditions: swelling of the brain, bleeding on the surface of the brain and bleeding in the back of the eyes. The diagnosis gave a generation of doctors a way to account for unexplained head injuries in babies and prosecutors a stronger case for criminal intent when police had no witnesses, no confessions and only circumstantial evidence.
It has also led to more than a decade of fierce debate: Testing has been unable to show whether violent shaking can produce the bleeding and swelling long attributed to the diagnosis, and doctors have found that accidents and diseases can trigger identical conditions in babies.
Challenges to the diagnosis have spilled into courts on two continents. In 2005, Britain’s Court of Appeal found that the head and eye injuries alone were not absolute proof of abuse and, in Sweden last year, the Supreme Court ruled that the scientific support for the diagnosis had “turned out to be uncertain.”
In the United States, 16 convictions have been overturned since 2001, including three last year. In Illinois, a federal judge who recently freed a mother of two after nearly a decade in prison called Shaken Baby Syndrome “more an article of faith than a proposition of science.”
Despite the uncertainty, prosecutors are still using the diagnosis to help prove criminal cases beyond a “reasonable doubt” against hundreds of parents and caregivers.
“You can’t necessarily prove [Shaken Baby Syndrome] one way or another — sort of like politics or religion,” said forensic pathologist Gregory G. Davis, the chief medical examiner in Birmingham, Ala., and the board chairman of the National Association of Medical Examiners. “Neither side can point to compelling evidence and say, ‘We’re right and the other side is wrong.’ So instead, it goes to trial.”
The Washington Post, in partnership with journalists at Northwestern University’s Medill Justice Project, carried out the first systematic examination of dispositions in Shaken Baby cases since doctors started disputing the science behind the syndrome.
Reporters used court records and newspaper reports to track down murder or abuse cases involving shaking that have been filed or dismissed since 2001. The year-long study unearthed about 1,800 resolved cases nationwide, finding some of the heaviest concentrations in counties in Ohio, Pennsylvania, Wisconsin and Nebraska.
About 1,600 cases resulted in a conviction, a rate that is higher than that for other violent crimes. In hundreds of cases, there were reports of shaking along with more obvious forms of violence that left extensive bruises and broken bones, with prosecutors alleging that babies also had been slammed, thrown or beaten.
The study for the first time identified about 200 cases in 47 states that ended when charges were dropped or dismissed, defendants were found not guilty or convictions were overturned.
Among them: a 39-year-old software entrepreneur in California who mourned his infant son while locked in an isolation cell; a 13-year-old babysitter in Washington who was charged with second-degree murder; and a 46-year-old grandmother in Arizona who spent nearly 2½ years facing capital murder charges.
Kelly Kline, acquitted in 2012 of shaking a baby to death in her home day care in rural Ohio, met her 6-year-old daughter for a parents’ lunch at school the day her mug shot flashed on the local news.
“If I wasn’t married and didn’t have kids, I would have committed suicide because of the hell, the embarrassment,” said Kline, a mother of three.
In four of the cases, doctors who had diagnosed shaking later revised their opinions, saying they were uncertain about the timing or cause of the injuries. One of the revisions helped free a Sacramento father after 3½ years in jail.
In four other cases, new medical examiners found that their predecessors had made mistakes by diagnosing shaking in babies who likely died from conditions that had nothing to do with violence. One doctor in Tennessee found a 10-week-old diagnosed with shaking appeared to have suffered from a series of strokes while he was in the womb.
Forensic pathologist George Nichols is among the doctors who once diagnosed Shaken Baby Syndrome and no longer believes in the science.
“Doctors, myself included, have accepted as true an unproven theory about a potential cause of brain injury in children,” said Nichols, who was the chief medical examiner of Kentucky for 20 years before retiring in 1997. “My greatest worry is that I have deprived someone of justice because I have been overtly biased or just mistaken.”
Part 1: Doctors who defend diagnosis dismiss challenges
Doctors and prosecutors who defend the diagnosis dismiss the challenges, saying Shaken Baby Syndrome is supported by years of clinical work, research and confessions from parents and caregivers. They say the doctors and scientists who frequently testify for the defense are on the fringes of mainstream medicine and are often paid to provide testimony.
“There is absolutely no question among any ICU doc that I’ve worked with that shaking a kid can cause these things,” said Desmond Runyan, a Colorado-based pediatrician and professor who has spent more than 30 years researching child abuse.
The doctors said they don’t rely solely on the internal head and eye injuries linked to shaking to make a diagnosis: They also look for external signs of abuse, weigh the accounts of caregivers and take steps to rule out natural causes and accidents.
“In the first 10 minutes the kid is in the hospital, we rule out meningitis, we rule out leukemia, we rule out sepsis,” said California pediatrician John Stirling. “It is a standard of practice to do those things, and in most cases, that is what is done.”
Prosecutors also say they consider all circumstances surrounding a baby’s death.
“I think it’s a very clever and misleading device . . . to reduce these cases down to a sound bite,” said Leigh Bishop, a prosecutor who is chief of the Child Fatality Unit in Queens County, N.Y. “We’re never in a rush to go out and throw handcuffs on somebody.”
Prosecutors add that judges have overturned Shaken Baby convictions for a range of reasons — not necessarily because they thought the science was flawed.
“It’s a correct diagnosis,” said Mary-Ann Burkhart of the National Center for Prosecution of Child Abuse at the National District Attorneys Association. “All areas of science and law change and evolve as more information comes to light; however, the fact that children too often suffer fatal abuse at the hands of their caretakers — and that abuse includes traumatic head injuries — has not changed.”
As questions about the diagnosis mounted, the American Academy of Pediatrics recommended that doctors stop using the term “Shaken Baby Syndrome,” noting that “the precise mechanisms for all abusive injuries remain incompletely understood.” Instead, the academy in 2009 suggested a broader term that is now widely used —abusive head trauma — that includes shaking, blunt force impact or a combination of both.
The battle over the science has played out in court cases across the country.
In December, a judge in New York overturned the murder conviction of a 55-year-old babysitter who had spent more than a decade in prison, declaring that the shaking evidence against her was “either demonstrably wrong or are now subject to new debate.”
Two weeks later, a Texas judge recommended a new trial for a man sentenced to 35 years in 2000 for injuring his girlfriend’s daughter. The district attorney and the defense attorney had submitted a joint agreement to the court stating that “the science that formed the basis of the conviction is now known to be unsound.”
In the cases where convictions were overturned, defendants had to marshal significant legal resources and medical expertise to challenge the scientific testimony against them. Some have been supported by lawyers affiliated with the Innocence Network, a worldwide organization that works to exonerate defendants who say they were wrongly convicted. The network’s affiliates are currently working on at least a hundred Shaken Baby cases.
“It’s almost always taken massive legal and medical support to do that, the kind of support that your typical criminal defendant simply doesn’t have access to,” said law professor Keith Findley, who has helped represent Shaken Baby defendants through the Wisconsin Innocence Project at the University of Wisconsin.
Mother released from prison: 'It hurts too bad to remember'
In one of the earliest dismissed cases in The Post-Northwestern study was in Texas, where an ailing 2-month-old named Daniel Lemons, home alone with his mother, stopped breathing during a morning nap in 1999. He died in the hospital seven days later.
Patricia Moore, Harris County associate medical examiner, noted in her report that she found marks on the baby’s face, as well as swelling of the brain and bleeding in the back of the eyes. Moore ruled the death a homicide.
The baby’s mother, Brandy Briggs, a 17-year-old waitress in the family’s struggling restaurant, was charged with his death. Her family paid $10,000 to hire a defense attorney but couldn’t afford to bring in a medical expert to review the case. In 2000, Briggs pleaded guilty to a lesser charge of injury to a child and was sentenced to 17 years in prison.
In 2004, a new chief medical examiner, Luis Sanchez, reviewed the autopsy findings and found that in the rush to save the baby at the hospital, a breathing tube had been improperly inserted into his esophagus, sending air to his stomach instead of his lungs and depriving Daniel of oxygen for more than 20 minutes. He changed the manner of death from homicide to undetermined.
After five years in prison, Briggs’s conviction was overturned and prosecutors dropped the charges. Now 33, she is remarried with a young son, Benjamin. She makes frequent trips to leave snow globes and flowers at Daniel’s grave.
“You know mama misses your big brother so much, still,” Briggs, whose married name is now Brandy Sorto, said to Benjamin on one recent outing. “He would have been a good big brother to you.”
Another early case was launched near Tampa in 1998 after David Long’s little girl, Rebecca, turned gray and listless and died in the hospital. She had been born three months early, weighing less than two pounds, and had struggled with health problems.
“She was our miracle baby,” Long’s wife, Teresa, told The Post.
An associate medical examiner, Marie Hansen, concluded the baby had died from blunt traumatic head and neck injuries. After an 18-month investigation, Long was charged with first-degree murder. He spent 49 days in jail before he made bail. He had trouble finding a job and declared bankruptcy.
In a pre-trial deposition, Hansen said the baby had been shaken and she ruled the death a homicide because there was “no other explanation” for the baby’s injuries.
In 2002, after the case had lingered for more than three years, the new medical examiner, Jon Thogmartin, reviewed the baby’s records and sought the opinion of three other doctors. All four reached the same conclusion: There was insufficient evidence to support a diagnosis of trauma. Thogmartin said Long’s daughter had died of pneumonia, complicated by a premature birth.
The autopsy report was amended and the charges against Long were dropped.
Hansen did not respond to requests for comment.
“We couldn’t even mourn,” Long said.
Thogmartin in 2002 also reviewed the case of a 2-month-old who had been found dead on the floor next to his parents’ bed. John Peel and the baby’s mother said the infant had fallen, but Joan Wood, the medical examiner at the time, ruled the death a homicide, citing a contusion and bleeding on the brain.
Peel was serving a 10-year prison sentence when Thogmartin told prosecutors that he could not substantiate Wood’s findings. He sent the case to another medical examiner, who wrote that the single contusion and bleeding “do not a homicide make.”
State Attorney Bernie McCabe asked a judge to vacate the conviction, and Peel was released from prison.
“He was wrongly jailed,” McCabe told The Post.
Another case collapsed near Nashville in 2006, when young father Andy Houser was cleared of shaking his son to death. Like the cases in Texas and Florida, a new medical examiner found his predecessor had made a mistake, incorrectly concluding that the baby’s death had been caused by blunt force injuries. Instead, the 10-week-old baby likely died from complications of multiple strokes that developed within the womb, assistant medical examiner Thomas Deering wrote in an amended autopsy report.
“The findings originally attributed to blunt trauma may be completely, or at least in part, attributable to a natural sequence of events,” he wrote.
The case was dismissed by prosecutors after Houser had spent two years facing first-degree murder charges. He had been brought in for questioning just hours after his son was buried.
“I had to be fighting for myself instead of grieving for my child,” he told The Post.
In Maryland, a baby collapses and a babysitter is blamed
On Maryland’s Eastern Shore, Gail Dobson had opened a home day care when her youngest son was born and spent 29 years at a kitchen table covered with construction paper and finger paint, caring for neighborhood children and then their children.
In April 2009, elementary school teacher Kelly Ulrich made arrangements with Dobson about providing day care for her son, Trevor, who had been born seven weeks early with respiratory distress and had spent several weeks in intensive care, court records and trial testimony show.
Ulrich had known Dobson’s family for 20 years, and Dobson, then 52, had a strong reputation in the community. She volunteered at the fire department and at church cookouts and had led Talbot County’s child-care association. Her two sons were in law enforcement.
When school started in August, Ulrich took 9-month-old Trevor — a chubby baby his father called “Squirt’’ — to his first day in day care. When the baby’s grandmother picked him up, Dobson said that Trevor had tried to pull himself into a standing position and had hit his face on the metal bar of a bouncy seat, leaving a small bruise below his eye.
In the car, Trevor started vomiting. He was still throwing up at his grandmother’s house, and Ulrich took him to the emergency room. A doctor diagnosed Trevor with dehydration and stomach irritation. Ulrich later testified that she didn’t mention the bruise on the baby’s face to hospital staff because Dobson’s explanation seemed “reasonable.”
Trevor stayed home sick the next day, but he returned to day care the following morning, Sept. 2.
That day, Dobson was caring for Trevor and three other children with help from her 74-year-old mother. Dobson testified that she found Trevor “dull” and not as active as usual. She said she fed him lunch at 1 p.m., then let Trevor crawl around and entertain himself in the living room.
Photo by Bonnie Jo Mount, The Washington Post
Gail Dobson departs Kent County Courthouse with her husband, Charlie. Dobson was released after a judge determined that she did not have sufficient representation.
Dobson said that when her mother left at 2:15 p.m. she went to prepare a bottle for Trevor. She noticed he had a dirty diaper, and when she tried to change him he crawled away and her carpeting got smudged. She said she pulled him back “by his leg.” Then she fed him, rocked him and put him in a crib.
Her husband came home at 2:45 p.m. and went out to the patio.
About 3 p.m., she said, she was preparing a bottle in the kitchen for another baby when she heard Trevor making “gurgling” sounds.
“I thought that Trevor was choking,” Dobson later testified. “I immediately picked him up and I gave him probably four back thrusts and he spit up a little bit.”
Dobson said she believed Trevor was still sick. But when he failed to respond, she called Ulrich and 911, and said she performed CPR until paramedics arrived.
At the hospital in Easton, doctors got Trevor’s heart to start beating again and had the baby airlifted to Children’s National Medical Center in the District. There, doctors found widespread bleeding in Trevor’s head, brain swelling and bleeding in the back of the eyes. Doctors also noted bruising just above Trevor’s right ear, about one inch long, a “small abrasion” on his left abdomen and bleeding in areas of his retina.
Trevor was taken off life support and died the following day.
D.C. deputy medical examiner Carolyn Revercomb performed an autopsy, documenting the internal bleeding and swelling as well as six contusions on Trevor’s scalp, ranging from one-quarter of an inch to one-half of an inch, a faint bruise on his back and one on his thigh. The retina in his right eye was detached. She ruled the cause of death as “blunt impact head trauma.”
Prosecutors concluded that Dobson — the last person with the baby — had abused him during both visits to her home. In November 2009, she was indicted on 11 charges, including second-degree murder, first-degree child abuse and first-degree assault.
“I was just dumbstruck,” Dobson told The Post. “I just couldn’t believe it.”
As the trial neared, Dobson’s attorney, Raymond Simmons, attempted to get Allan De Jong in Delaware to testify on her behalf. De Jong was an unlikely choice for the defense: He is a pediatrician who has lectured on the dangers of shaking and blunt trauma.
De Jong reviewed the case and, in a letter to Simmons, said that the bruising below Trevor’s eye was not “specific for abuse” and could have been caused when Trevor’s head hit the bouncy seat during the first day in Dobson’s care. But De Jong said that Trevor had died from “violent shaking” two days later.
Simmons chose not to call De Jong as an expert witness, which left Dobson without a single medical expert to defend her at the 2010 trial.
Prosecutors called three doctors who testified that Trevor had been abused. Revercomb, the medical examiner, said the baby had died from an impact injury and possible shaking.
Pediatrician Allen Walker testified, “Trevor died as a result of blunt trauma to the head as well as shaking injury to the brain.” Pediatrician Tanya Hinds agreed, describing widespread bleeding and saying, “The cause of Trevor’s death was vigorous, repetitive shaking trauma with impact.”
Hinds added: “This is one of the worst cases of abusive head trauma that I have seen.”
Two dramatically different descriptions of Dobson were presented to jurors.
Prosecutors argued that Dobson had snapped, frustrated when Trevor soiled his diaper and refused to follow her day-care schedule. Prosecutors said Dobson gave inconsistent accounts about the events leading up to Trevor’s injuries, had violated state licensing regulations that day by caring for one too many children under age 2 and had lied to a state regulator about when her mother had left the house.
Prosecutor Maurice Nelson said Trevor’s head injuries had triggered a “neurological disaster.”
“Healthy babies just don’t die,” he told jurors.
Simmons painted an entirely different picture, saying Dobson had “no prior incidents” and “28 years of a good operation,” was widely considered truthful and had struggled to recall what had happened in her day care under the stress of the situation.
“She was the last person who had custody for Trevor,” Simmon said. “It is guilt by proximity.”
He added: “Does anyone really believe that a poopy diaper and a fussy child would cause someone to vigorously and violently kill a child? It does not make any sense.”
The jury acquitted Dobson on the charges relating to the bouncy seat incident, but found her guilty of killing Trevor on his second day at the day care. She was also convicted of first-degree child abuse and second-degree assault. She was sentenced to 30 years in prison, with 10 years suspended.
Ulrich started a blog, posting: “I miss Trevor every day, every moment, all the time. I usually don’t let my mind drift into the details of how he died. I can’t. It hurts too much.”
She gave her views on Dobson in a 2013 appearance on local television. “She’s the woman who abused my son, who repeatedly beat him on the back of the head with something to the point where his brain swelled and died,” Ulrich told a reporter.
In prison, Dobson got a job in the property department, earning 95 cents a day. She started receiving hate mail, with one anonymous Hallmark card with a picture of Mickey Mouse that read, “May you rot in hell.”
Her husband lived alone in their empty house, the cribs and toys stuffed into the attic. “Everything’s been against us,” said Charlie Dobson, who has worked for an electronics packaging manufacturer for 41 years.
Dobson appealed, arguing there had been insufficient evidence to convict her. The Court of Special Appeals of Maryland affirmed the conviction in 2012.
But that year, the case took a significant turn
Thomas Wyman, the 91-year-old owner of Talbot County’s historic Wye Heights Plantation, where Dobson’s father had worked for years, volunteered to hire new defense attorneys. Wyman told The Post that Dobson had received a “flawed trial” and “none of the evidence confirmed that this lady was guilty of Shaken Baby” Syndrome.
“I saw that there was a total injustice,” Wyman said. “She was a friend of my family and was a friend of my children, going back decades. So when I realized that this lady who had a totally blameless life, now in her 50s, needed help and had no savings, no money, the only person who could rectify all this was I. And happily, I was able to do that.”
Wyman’s money allowed Dobson to hire new attorneys, including Flynn Owens, now a Baltimore City District Court judge. He reached out to D.C.-area neurosurgeon Ronald Uscinski. North Carolina forensic pathologist Peter Stephens was also called in.
Both doctors reached the same conclusion: Trevor had older bleeding in his head, a sign of an undiagnosed condition that had started prior to his collapse in Dobson’s day care. The bleeding could have been caused by an unknown injury days or even weeks before the baby went to day care, the doctors said at a post-conviction hearing in February 2014.
Uscinski also testified that the baby’s head size had grown from the fifth percentile to the 90th percentile, which he said probably was caused by an unknown underlying condition.
Stephens, a former medical examiner, called the shaking allegations “reckless” and testified that Trevor showed no signs of an impact injury. He had no skull fracture or broken bones, and the small contusions on his scalp were “trivial,” Stephens said.
The contusions could have been there for days or caused by the resuscitative efforts of emergency workers and staffers at the two hospitals where Trevor was treated, he said.
“I’ve never seen an infant who has been resuscitated who doesn’t have some marks on the head, even multiple marks,” Stephens told The Post. “It’s inevitable.”
Revercomb, who now practices in Rhode Island, said she could not discuss a pending case.
In a recent interview with The Post, Ulrich said Dobson’s new medical experts were “hired guns” who were paid for their time; both doctors said they took time away from their medical practices to work on the case. Ulrich also said that she had dropped off a “healthy, normal child” at Dobson’s house. “I do believe that she snapped,” Ulrich said. “I don’t believe that my child just died.”
In early April, Kent County Circuit Court Judge Paul Bowman overturned Dobson’s convictions and ordered a new trial, finding the doctors for the defense “credible.” The judge said the case against Dobson consisted “entirely of circumstantial evidence” and that Dobson was “doomed to be convicted” when Simmons failed to bring in a single doctor to defend her at trial.
“The significance of the charges mandated that any competent defense attorney would have become acquainted with the fierce debate going on at the time of trial concerning Shaken Baby Syndrome,” Bowman wrote.
He added, “There is a reasonable probability that the jury would have found a reasonable doubt as to Petitioner’s guilt at her trial.”
Simmons declined to comment.
Last August, two months after Dobson’s conviction was overturned, her husband and sister-in-law showed up at the courthouse to put up the deeds to their homes so Dobson could post bail.
She was released from custody on $150,000 bond after nearly four years at the Maryland Correctional Institution for Women. In the courthouse parking lot, she hugged her twin brother, her reverend, neighbors, nieces, cousins and a family friend who had grown up in Dobson’s day care.
“I thought the judge was going to say no,” Dobson said in a shaky voice.
With that, her husband and sons hustled her into the back seat of a family truck, and Dobson went home.
Prosecutors have asked the Montgomery County state’s attorney’s office to pick up the case. A state’s attorney spokesman said the case is being assessed.
“It’s not over,” Ulrich said. “It’s definitely not over.”
Part 2: Doctors who diagnosed Shaken Baby Syndrome now defend the accused
by Debbie Cenziper, Lauryn Schroeder, Sophia Bollag and Anna Zambelli
The forensic pathologist who had spent the better part of 30 years investigating violent deaths walked into a Minnesota courtroom in 2012, braced to testify at another grueling murder trial.
Jonathan Arden quickly took stock of the case: A 4-month-old boy had collapsed in his father’s care and died from lethal head injuries. Damien Marsden, 33, faced decades in prison, accused of shaking the baby to death.
Once, Arden had been a firm believer in Shaken Baby Syndrome, long considered a deadly form of child abuse. But in rural Warren, Minn., in April 2012, the former state expert took the stand for the defense, describing how a thin layer of old blood on the surface of the baby’s brain was a telltale sign of an injury that had occurred before the baby had been left alone with his father.
Jurors spent less than three hours deliberating before acquitting Marsden of murder.
“A lot of people in this field, especially many of the pediatricians, make statements that are absolute and dogmatic and do not allow for the exceptions that we know exist,” Arden told The Washington Post. “Do you want to be involved in somebody’s wrongful conviction because you had this dogmatic approach that it must be trauma, it must be shaking?”
Arden is among a number of doctors who once diagnosed Shaken Baby Syndrome but now doubt the science behind it, swayed by more than a decade of research that’s documented how diseases, genetic conditions and accidents can, in some cases, produce the conditions long attributed to violent shaking.
The doctors’ journeys from supporters to skeptics expose the uncertainty at the heart of a medical diagnosis that has fueled hundreds of abuse and murder cases. In courtrooms across the country, the doubting doctors are now using the same evidence that once supported a shaking conviction — medical records, autopsy reports and brain scans — to challenge the diagnosis. The Post chronicled the stories of nine of those doctors through interviews, documents and trial transcripts.
The issue is not whether violent shaking can harm babies: Even doctors who dispute the diagnosis say shaking can damage an infant’s fragile neck, torso or spine. But the doctors say that shaking has not been shown to produce the conditions often attributed to Shaken Baby Syndrome — namely, bleeding on the surface of the brain, bleeding in the back of the eyes and brain swelling.
The challenges have come from doctors and scientists worldwide, including a forensic neuropathologist in Illinois, an ophthalmologist in Colorado, a radiologist in Pennsylvania, a physicist in Idaho, a forensic pathologist in North Carolina, a neurosurgeon in the District and several doctors in Britain, Sweden, Hong Kong and Argentina.
Although they are outnumbered by the doctors who support the science, those who challenge it are gathering strength. More than a hundred share their ideas on a private e-mail group called “Evidence-Based Medicine and Science.”
They have published their concerns in medical journals and teamed up, sometimes as paid witnesses, with private defense attorneys and lawyers affiliated with the Innocence Network. In courtrooms across the country, the doctors have questioned high-profile criminal convictions, drawing attention from journalists at the New York Times, ProPublica and other media outlets. Northwestern University law professor Deborah Tuerkheimer published a book on the subject last year, “Flawed Convictions: ‘Shaken Baby Syndrome’ and the Inertia of Injustice.”
In Fairfax County, Va., pediatric neuroradiologist Patrick Barnes, once a well-known state witness in shaking cases, has come to the defense of a mother of two who has so far spent five years in prison. At a widely watched trial, 45-year-old Trudy Muñoz Rueda was accused of violently shaking a 5-month-old in her home day care in 2009, causing serious brain injuries. She is serving a 10-year prison sentence.
Barnes, a professor at the Stanford University School of Medecine, looked at scans of the baby’s head at the request of defense attorneys and came to a different conclusion: The baby had likely suffered from an infection that caused blood clots in the brain, leading to a series of strokes.
“All of the treating physicians simply assumed trauma and stopped looking for alternative explanations,” Barnes wrote in a 2012 affidavit. “That is not sound science and cannot be the basis of a reliable prosecution.”
A petition challenging the conviction, filed by the Innocence Project at the University of Virginia School of Law, is pending in federal court.
Other doctors have also stepped forward to defend parents and caregivers, including George Nichols, the former state medical examiner of Kentucky, who made a surprising offer at a meeting for public defenders shortly after he retired in 1997.
“I said if they had a case in which I had testified that somebody had died as a result of Shaken Baby Syndrome alone, that they were to contact me and that I would now testify for a reversal,” Nichols said. “Shaken Baby Syndrome is a belief system rather than an exercise in modern-day science.”
Arden, who spent five years as the District’s chief medical examiner before starting his own practice, began questioning the diagnosis a decade ago. Like other doctors, he started asking: If natural causes and accidents could produce the same conditions in babies, how could doctors diagnosis shaking with certainty?
There’s no good way to validate the diagnosis. Shaking tests on animals have been inconclusive, and doctors cannot test on babies. Some biomechanical engineers say adults likely cannot generate enough force through shaking to cause the lethal bleeding and swelling, but the injury threshold among infants isn’t known.
The National Institutes of Health funded a shaking study on anesthetized baby pigs in 2009, but the research was unable to determine whether shaking can cause the severe brain and eye injuries linked to the diagnosis.
“The jury is still out and we need to do much more basic science,” said Valerie Maholmes, who leads a newly formed NIH branch on pediatric trauma. “We want good, strong science that has been confirmed and verified.”
Nagged by mounting doubts, Arden on his own started looking into the theory behind Shaken Baby Syndrome, which was forged more than 40 years ago with just a handful of cases and an intuitive leap.
A child abuse diagnosis raises questions, doubts
In a bustling hospital in England in the early 1970s, pediatric neurosurgeon A. Norman Guthkelch discovered an alarming pattern among some infants and children: They had blood on the surface of the brain but no external signs of violence to the head.
One explanation came from social workers, who told Guthkelch that parents were disciplining their babies by shaking them. The idea made sense to the soft-spoken father of four, who had long suspected that some parents in northern England considered “a good shaking” far more acceptable than raising a hand to a child.
In May 1971, Guthkelch detailed his hypothesis in a two-page paper in the British Medical Journal: “One must keep in mind the possibility of assault . . . even when there are only trivial bruises or indeed no marks of injury at all.”
Over the next few years, prominent pediatric radiologist John Caffey at the University of Pittsburgh, who had spent decades studying head and bone injuries in children, came up with the term “whiplash shaken infant syndrome.” He cited case studies of shaking incidents and called for a national education campaign with the mantra:
Guard well your baby’s precious head,
Shake, jerk and slap it never,
Lest you bruise his brain and twist his mind,
Or whiplash him dead, forever.
Over time, the subdural bleeding, along with swelling of the brain and bleeding in the back of the eyes, became the classic markers of Shaken Baby Syndrome, though doctors also consider other signs of trauma as well as the accounts of caregivers.
Guthkelch studied 23 assault cases and found that five children had bleeding on the surface of the brain, known as the subdural space, but no external marks on the head. He proposed that shaking could tear the veins inside the cranial cavity, triggering the bleeding.
In 1993, the American Academy of Pediatrics, noting the findings of Guthkelch and Caffey, declared Shaken Baby Syndrome “a clearly definable medical condition.”
“I am very confident that the science is well validated,” pediatrician Robert Block, past president of the academy, recently told The Post. “We have a long history of studying the science, of reviewing the work.”
But in the late 1980s, some doctors and biomechanical engineers had already begun to raise critical questions about whether Shaken Baby Syndrome was flawed science.
In 1987, a team of doctors and engineers from the University of Pennsylvania reported in the Journal of Neurosurgery that they had reviewed the cases of 57 children in Philadelphia with suspected shaking injuries, 13 of them fatal. In every fatal case, the shaking symptoms were accompanied by signs of blunt trauma to the head.
Though the researchers acknowledged their study was limited by a lack of information on the response of the infant brain, they concluded, “Shaking Baby Syndrome, at least in its most severe acute form, is not usually caused by shaking alone.”
In the late 1990s, concerns about Shaken Baby Syndrome were publicly aired during a contentious trial in Massachusetts, where 19-year-old British nanny Louise Woodward had been accused of killing a baby in her care. The case drew worldwide attention, with one journalist for the British Broadcasting Corp. describing the trial as “the clash of the medical men.”
Backed by a series of doctors — including Barnes, the pediatric neuroradiologist who would later challenge the diagnosis — prosecutors argued that a vicious assault by Woodward, which included violent shaking and a slam against a hard surface, had left 8-month-old Matthew Eappen with lethal head injuries, including a skull fracture.
But doctors who testified for the defense at the 1997 trial pointed out that the baby had no neck trauma and that the injuries appeared to be several weeks old. One of the doctors was Chicago neuropathologist Jan Leestma, who once was so convinced that Shaken Baby Syndrome was a valid diagnosis that he wrote about it in the first edition of a 470-page textbook he authored on the brain.
“I was wrong,” Leestma told The Post. “The original papers that espoused Shaken Baby were basically opinion papers with essentially no science applied to them.”
Woodward was found guilty of second-degree murder in October 1997. A month later, Superior Court Judge Hiller Zobel reduced the count to involuntary manslaughter and Woodward was freed from prison.
“After intensive, cool, calm reflection, I am morally certain that allowing this defendant on this evidence to remain convicted of second-degree murder would be a miscarriage of justice,” Zobel wrote.
After the trial, 50 doctors wrote a letter to the journal of the American Academy of Pediatrics asserting that the argument against shaking made by Woodward’s defense was “inaccurate, contrary to vast clinical experience and unsupported by any published literature.”
“The Shaken Baby Syndrome (with or without evidence of impact) is now a well-characterized clinical and pathological entity with diagnostic features in severe cases virtually unique to this type of injury,” the doctors wrote.
Four years after the Woodward trial, skeptical doctors from Minnesota to North Carolina to Britain began to challenge each of the conditions linked to shaking.
The most obvious symptom was the subdural bleeding, which had long been attributed to tears in the bridging veins that run from the surface of the brain to larger veins underneath the skull.
In 2001, a team of doctors in Britain reported that it had studied the brains of several dozen infants with inflicted head trauma, including those who were allegedly shaken, and found the subdural bleeding “trivial.”
In research papers that followed, Pennsylvania State University radiologist Julie Mack and other doctors suggested that the slight bleeding could have come from millions of much smaller blood vessels, similar to capillaries. Violent shaking was an unlikely cause of the bleeding because the tiny vessels were connected to the skull and would not shift from shaking.
“Every time we carefully examine the anatomy, we learn things,” said Mack, who has testified for the defense at shaking trials.
Doctors who support the Shaken Baby science criticize the studies, arguing that bridging veins are thin and can break easily. “That’s an interesting hypothesis, but there’s no proof,” said Carole Jenny, a pediatrician at the University of Washington.
Mack countered: “It is an established anatomic fact that the vessels can bleed without trauma and produce a subdural.”
Doctors have also investigated the origins of retinal hemorrhages, which Shaken Baby experts say have been observed in a majority of children with shaking injuries. A 2002 guide to investigating child abuse from the Department of Justice’s Office of Juvenile Justice and Delinquency Prevention called retinal hemorrhages “conclusive evidence of Shaken Baby Syndrome in the absence of a good explanation.”
But in 2001, North Carolina forensic pathologist Patrick Lantz began to take a closer look at the conditions that can produce the bleeding. Lantz, a state medical examiner who once supported the Shaken Baby diagnosis, examined the eyes of more than 180 deceased children, including 116 infants. He found retinal hemorrhages in babies who had died from an obstructed airway, congenital heart disease and infections such as encephalitis and meningitis.
“If doctors see retinal hemorrhages, they say it’s abuse,” said Lantz, who has published four studies on the issue. “But it’s as scientific as a fortuneteller reading tea leaves.”
Jenny criticized Lantz’s findings, saying the bleeding he documented wasn’t as copious as the hemorrhaging seen in Shaken Baby cases. But Lantz said that the more extensive blood patterns are not exclusive to shaking. “If you look at other cases, you see them,” he said. “They’re there, but if you don’t look, you won’t find them.”
Engineers: Falls could be more dangerous than shaking
As doctors challenged the conditions linked to shaking, biomechanical engineers started asking whether accidental falls from sofas, beds, changing tables and playground equipment could trigger the same deadly injuries. The results raised even more questions about the science behind the diagnosis.
Engineers experimenting with crash-test dummies found that “short falls” produced far more acceleration to the head than shaking. The Washington Post commissioned its own test late last year in an engineering lab outside Detroit. The study was conducted by biomechanical engineer Chris Van Ee, an accident reconstruction specialist who has been hired as a defense expert in cases alleging child abuse.
In the tests, a 195-pound man vigorously shook a 22-pound crash-test dummy. The dummy also fell from a couch.
The shaking generated a peak between 6 to 8 Gs, or as much as eight times the acceleration due to gravity or twice what would occur during jumping jacks, compared to a peak of 112 Gs when there was direct impact to the head during a fall.
Through accident reconstruction, biomechanical modeling, cadaver studies and scaling from animals and adults, engineers have estimated that the threshold for serious injuries in babies is about 50 to 90 Gs. But since researchers cannot test on infants, the actual threshold remains unknown.
“It may be impossible to replicate the perfect experiment,” said Susan Margulies, a bioengineering professor at the University of Pennsylvania.
Doctors who support the diagnosis criticize the tests, saying that dummies are not babies and the results add little to the debate. They point to a 2008 paper by California pediatrician David Chadwick and others, which tracked research and cases on lethal falls and concluded that “such deaths are rare” — less than 1 in 1 million. The doctors also say the pattern of injuries from falls is often different than that of shaking, with bleeding in different parts of the brain.
Doctors who have challenged Shaken Baby Syndrome point out that a 2001 study using data from the U.S. Consumer Product Safety Commission documented the cases of 18 children, ranging from 1 to 13 years old, who died after reportedly falling from playground equipment. Most had brain swelling and bleeding on the surface of the brain. Of the six children who had their eyes examined, four had extensive retinal hemorrhages.
The research was done by forensic pathologist John Plunkett, a longtime medical examiner in Minnesota who supported the Shaken Baby diagnosis until the late 1990s.
“I believed that shaking was a viable and legitimate diagnosis,” he said. “That’s the way I was taught, but I wasn’t smart enough to understand the mechanics of injury. That’s when I started to learn the science.”
Supporters of the science have criticized Plunkett’s study, saying among other things that it did not include any infants and that several children had preexisting conditions that may have increased the risk of death.
But Plunkett’s study and others turned a series of doctors into doubters, including Peter Stephens, a former deputy medical examiner in Iowa and forensic pathologist for more than 40 years.
“At best, it is an overused diagnosis,” he said. “I won’t say that shaking can’t cause serious injury and death, but it’s never been shown to my satisfaction, and it’s never been proven.”
One of the most high-profile doubters is Guthkelch, whose research on shaking 40 years ago helped spark a new diagnosis for child abuse.
Guthkelch got involved in the issue again in 2011 when he was asked to review the conviction of a young Phoenix man who was accused in 2000 of shaking his girlfriend’s 5-month-old son to death. Drayton Witt was serving 20 years in prison.
Guthkelch looked at the baby’s medical records and discovered that the infant, born with the umbilical cord wrapped around his neck, had struggled with pneumonia, dehydration and seizures. Guthkelch wrote a declaration to the court, saying there was “simply not enough evidence” to justify a Shaken Baby diagnosis.
Several other doctors brought in by Witt’s defense attorney concluded that the baby had likely died from natural causes, such as a blood clot in the brain. The medical examiner who originally ruled the death a homicide said he could no longer stand by his conclusion, writing to the court that multiple conditions can “create the very symptoms and injuries once thought to be nearly exclusively attributable” to Shaken Baby Syndrome.
Witt was released from prison after 10 years.
“I am doing what I can so long as I have a breath to correct a grossly unjust situation,” said Guthkelch, now living in Ohio and nearing 100. “I think they’ve gone much too far.”
What could be right about getting it wrong?
Photo by Bonnie Jo Mount, The Washington Post
Detail of a brain injury.
To Arden, the issue boils down to uncertain science.
Coming up as a young medical examiner in New York in the 1980s, he was taught that bleeding and swelling in the brain, in the absence of any other symptoms or injuries, was clear-cut evidence of shaking. He testified for the state in at least two dozen Shaken Baby cases.
Arden continued to support the diagnosis when he moved to the District in 1999 to take the helm of the city’s long-troubled medical examiner’s office.
He left after five years in 2003 when city officials complained about high staff turnover and management problems and several female employees accused him of harassment. Arden said the complaints were unfounded, leveled by disgruntled employees who had resisted reforms.
Arden opened a private practice in McLean, Va., and was elected to the executive committee of the National Association of Medical Examiners. He started reading new studies on Shaken Baby Syndrome. He learned that Lantz in North Carolina had found bleeding in the eyes of children who had died of natural causes and Plunkett in Minnesota had found bleeding and swelling in children who had fallen from playground equipment. Other studies found that some infants developed bleeding on the surface of the brain following full-term births.
Arden started testifying as a retained witness for parents and caregivers accused of abuse, including Damien Marsden, the father in Minnesota who faced three counts of murder.
In 2009, Marsden was home alone with his 4-month-old son, Rylin, while the baby’s mother went shopping. When she returned 30 minutes later, she said Marsden was just coming in from outside, where he had been grilling hamburgers. They said the baby vomited in his bouncy chair and turned limp.
Emergency workers rushed Rylin to the hospital, where a CT scan revealed a swollen brain, bleeding on the surface of the brain and a skull fracture. He died six days later.
Marsden said Rylin had fallen out of bed onto a carpeted floor the day before. But doctors concluded that Rylin’s injuries could not have come from the fall. A family doctor with training in child abuse said that Rylin had both “contact and “rotational injuries,” as well as a bruise on the inner ear, records show.
The medical examiner noted the baby had a retinal hemorrhage and a contusion on the back of his head, as well as the internal injuries, and concluded that Rylin had died of traumatic head injuries from a physical assault.
Marsden was charged with murder.
“It was a horrible experience to lose my child and then to get blamed for it,” he told The Post. “You’re basically guilty until you’re proven innocent.”
As the trial neared, Arden studied the autopsy report, medical records, slides of the baby’s brain and, most important, the CT scan of Rylin’s head. He found both fresh and old blood on the surface of the baby’s brain as well as signs of an impact injury.
“Invoking shaking/rotational injuries is both unnecessary and speculative,” he wrote in a report to Marsden’s attorney.
At the 2012 trial, the baby’s grandmother testified that the infant had been accidentally dropped onto a wood floor at her day-care center about a week before the collapse. Arden told jurors that Rylin had likely died from the two falls. Marsden was acquitted.
He’s now married to Rylin’s mother, working at an oil company and raising three children.
“My thinking has definitely evolved over time,” Arden said. “I haven’t joined the camp that says there is no such thing as Shaken Baby, but I am much more cautious and circumspect about invoking it.
“What could be right about getting it wrong?”