Friday, March 14, 2014
A New York court is set to decide whether a shift in the medical community over the prognosis of shaken baby syndrome (“SBS”) constitutes newly discovered evidence that would entitle the defendant to post-conviction relief under NYCPL 440.00. Justice James Piampiano has ordered a hearing in People v. Rene Bailey after being presented with strong evidence that the medical community’s standard for diagnosing shaken baby syndrome has significantly shifted over the years since Bailey’s conviction.
Bailey was convicted at a time when there was a more general medical consensus that a triad of symptoms – subdural hematoma, retinal hemorrhaging, and cerebral edema – were enough to support the conclusion that an unexplained death of an infant was caused by the violent shaking of the baby rather than to any other cause, such as accident, falling, and the like. Indeed, Bailey was convicted on the testimony of the state medical examiner to that conclusion. Medical experts for Bailey have now opined that a diagnosis of shaken baby syndrome should not have rested exclusively on finding the “triad.”
There is a growing body of medical opinion today that believes the conclusion of shaken baby syndrome from the presence of the “triad” alone is not scientifically proven. That is, findings of the “triad” of symptoms can result from other causes, such as common short distance falls. See e.g., Patrick E. Lantz & Daniel E. Couture Fatal Acute Intracranial Injury, Subdural Hematoma, and Retinal Hemorrhages Caused by Stairway Fall, 56 J. Forensic Sci. 1648 (2011); Scott Denton & Darinka Mileusnic, Delayed Sudden Death in an Infant Following an Accidental Fall, 24 AM. J. Forensic Med. Pathol. 371 (December 2003). Indeed, some biomechanical engineering experts have raised doubts about whether it is possible to shake a baby to death without significant injuries to the child’s neck or spine. See Shaken Baby Syndrome: A Biomechanics Analysis of Injury Mechanisms, 151 Forensic Sci. Int. 71 (2005).
The controversy surrounding SBS has become a much debated issue in many courts, including the United States Supreme Court. In Cavazos v. Smith, the Supreme Court ruled that the Ninth Circuit had exceeded its authority under 28 U.S.C. § 2254(d) when it concluded that a California jury should not have credited the prosecution experts' conclusion that The defendant had shaken her grandson so violently that she had caused his death. 132 S. Ct. 2 (2011).
The Ninth Circuit initially vacated the conviction, troubled by the fact that “[t]he prosecution experts testified,  that shaking caused the death even though the physical examination of the brain during and after autopsy could not demonstrate that fact.” Smith v. Mitchell, 624 F.3d 1235 (9th Cir. 2010). The Circuit Court concluded that the usual scientific characteristics of SBS were not present, and that the presence of blood in the victim’s brain (one or two tablespoons) alone was not conclusive as to whether the baby was violently shaken. Id. Nor could the experts identify where the shaking had allegedly torn the brain stem. Importantly, the Ninth Circuit also noted that “no physical evidence supported the prosecution experts' testimony as to the cause of death.” Id. In shirt, the experts conclusions were unsupported; the cause of death really could not be proven.
The Supreme Court reinstated the verdict against Smith, although conceding that “[d]oubts about whether Smith is in fact guilty are understandable.” Cavazos, 132 S. Ct. at 5. It concluded that the decision whether to accept the experts' conclusions was for the jury. The Court also noted that the lack of diagnostic characteristics relative to SBS could be explained by the fact that the baby’s “death happened so quickly that the effects of the trauma did not have time to develop.” Id. at 4. (quoting Smith v. Mitchell, 453 F. 3d 1203, 1207 (2006)).
In dissent, Justice Ginsburg was concerned that the SBS evidence adduced against Smith was not strong and that the conviction turned on damage to the brain stem that was not actually seen. Notably, Justice Ginsburg recognized the change in medical opinion, noting that “[i]n light of current information, it is unlikely that the prosecution's experts would today testify as adamantly as they did in 1997" and that “[d]oubt has increased in the medical community ‘over whether infants can be fatally injured through shaking alone.” Id. At 10. Because of concern about the support for the conviction, California Governor Jerry Brown commuted the defendant’s sentence to time served after the Court reinstated her conviction.
Recently, a federal court had also found that a stark shift in the medical approach to SBS could be deemed newly discovered evidence. Del Prete v. Thompson, 2014 WL 296094 (N.D. Ill 2014). Similarly, a new trial was granted to the defendant on the basis of newly discovered evidence from the developments in the medical community around “shaken baby syndrome.” State v. Edmunds, 746 N.W.2d 590 (Wis. Ct. App. 2014). And a defendant convicted in 2005 of first-degree reckless homicide for shaking his infant daughter to death was granted a new trial inState v. Louis, 8 N.W.2d 319 (Wis. Ct. App. 2010) because “the medical community is [now] sharply divided on whether the symptoms commonly associated with shaken baby syndrome are exclusively characteristic of that diagnosis.” Id. The court explained that there is a “legitimate and significant dispute within the medical community as to the cause of those symptoms commonly associated with shaken baby syndrome.” Id.
What should the courts do when convictions that rest in large part on medical conclusions are undermined by developments in medical research? This is not a traditional battle of experts but rather a change in scientific knowledge. The SBS cases bring that question into stark relief.
The courts in England and Wales have dealt with this issue and are probably ahead of the United States courts in addressing it. Indeed, as long ago as 2005, in R v Lorraine Harris, Raymond Charles Rock, Alan Barry Cherry and Michael Faulder  EWCA Crim 1980,  Cr App R 5;  2 FLR 412, CA, the Court of Appeal held that the classic triad would no longer be accepted as "automatically or necessarily" leading to a conclusion of SBS. While it rejected a new medical hypothesis known as the unified hypothesis that challenged the inevitability of shaking as the cause of the triad because this hypothesis had not yet been widely enough accepted, the Court accepted that a substantial body of medical opinion did not accept the classic triad as inevitably caused by abuse.
As barrister David Bedingfield notes in his recent article, "From ‘Shaken Baby Syndrome’ to ‘Non-accidental Head Injury’ – the Continuing Research and the Law," Family Law Week (UK) March 11, 2014, after Harris, the then Attorney General reviewed the records in 88 SBS cases that had resulted in guilty verdicts or guilty pleas. See The Rt Hon The Lord Goldsmith QC, The Review of Infant Death Cases: Addendum to Report Shaken Baby Syndrome (HMSO 2006). Three of the cases (3.4% of the total reviewed) were seen to be unsafe and were subsequently referred to the Court. Thereafter, as a result of the Goldsmith review as well as developments in medical research, the Crown Prosecution Service issued new guidelines for the prosecution of non-accidental infant head injury cases as follows:
- Generally, non-accidental head injury will be diagnosed by findings of the triad;
- However, to prove guilt in such a case, the prosecution will usually require corroborating evidence;
- The unified hypothesis has not been accepted by the courts and should be resisted;
- The defense may introduce biomedical evidence and other expert evidence, if relevant;
- Cases in which these issues arise must be reported to The Strategy and Policy Directorate.
The courts in England and Wales are generally more willing to entertain new evidence after conviction than the US courts, and even allow new evidence to be considered on direct appeal. In some sense the English courts are less committed to finality and slightly less deferential to their trial juries. This may be because there is no appeal as of right, because they invest less in the jury system, and because there is a greater commitment to accuracy. It will be a real test for the US judicial system to respond with integrity -- as a few courts are now doing - to developments in science that may challenge the accuracy of criminal convictions.
- People v. Bailey, Ind. No. 2001-0490, (J. Piampiano) (Jan. 24, 2014)
- Cavazos v. Smith, 132 S. Ct. 2 (2011)
- Smith v. Mitchell, 624 F.3d 1235 (9th Cir. 2010)
- Del Prete v. Thompson, 2014 WL 296094 (N.D. Ill 2014)
- State v. Edmunds, 746 N.W.2d 590 (Wis. Ct. App. 2008)
- State v. Louis, 798 N.W.2d 319 (Wis. Ct. App. 2010)
- Steve Orr, Judge Orders Special Hearing in Shaken Baby Case, Democrat & Chronicle (Jan. 24, 2014).
- Steve Orr, Watchdog Report: Shaken-Baby Science Doubt Grows, Democrat & Chronicle (June 29, 2013).
- Gary Craig, Watchdog Report: Shaken-Baby Triad Still Rules in New York Courts, Democrat & Chronicle (June 30, 2013).
- Emily Bazelon, New Evidence on Shaken Baby Syndrome, NY Times (Jul. 5, 2011).
- Anthony DiPietro, Battle of Experts: Controversy in Shaken Baby Case set for NY Court, Pace Criminal Justice Center Blog, (Feb. 14, 2014).
- David Bedingfield, From ‘Shaken Baby Syndrome’ to ‘Non-accidental Head Injury’ – the Continuing Research and the Law, Family Law Week (UK) March 11, 2014, https://www.familylawweek.co.uk/site.aspx?i=ed128171.
- Deborah Turkheimer, The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts, 87 Washington Univ. L. Rev. 1 (2009).