Eye on the Courts: Shaken Baby Syndrome Has Troubling Scientific Foundations

SBSIn the tragic death of one of two infant twins, the father, Quentin Stone, is accused of shaking the two-month-old to death. Mr. Stone is charged with felony and misdemeanor child endangerment in connection with the death on September 5, 2012.

The jury will have a lot to sort through, and as the Vanguard reported, Deputy Public Defender Monica Brushia raised serious questions on Thursday when Kaiser’s Dr. Erickson testified that, after examining the infant, he felt the baby appeared normal. He stated, “He was a white, healthy, happy baby boy with no outward injuries, no bruised, swelling or dilated pupils.”

But he acknowledged that, at the same time, he never thought it was necessary to order a CAT scan, despite knowledge that the baby had fallen three feet.

Meanwhile, on Friday the baby’s doctor testified that she assured the parents that the baby’s symptoms were the result of acid reflux rather than serious trauma from a fall from a three-foot-high bed.

At the center of this case is the issue of “shaken baby syndrome.” Increasingly, many believe that SBS is flawed science, much like the debunked notion of bullet lead analysis, which has turned accidental or even natural deaths into murder convictions.

Radley Balko in a February 21, 2014, article writes, “For years, expert witnesses told jurors that if a deceased infant has a series of symptoms—bleeding at the back of the eye, bleeding in the protective area of the brain and brain swelling—then the child died from vigorous shaking. Typically, they’d state that the victim couldn’t have died from anything else.”

SBS was first identified in the 1970s and diagnosed with a triad of symptoms, “retinal hemorrhage (bleeding at the back of the eye), subdural hematoma (blood gathered between the outermost layer of the brain and the lining between the brain and the skull), and cerebral edema (excess fluid in the brain).”

The parent or caretaker, frustrated or exasperated by the infant, shakes the child which causes the symptoms and leads to brain damage or death.

Mr. Balko notes, “Conveniently, the diagnosis provided the cause and manner of death (shaking), identified the killer (the last person alone with the child), and even gave prosecutors mens rea (anger).”

However, skeptics have begun to question and puncture this kind of diagnosis.

Writes Mr. Balko, “New research suggests that most humans aren’t capable of shaking an infant hard enough to produce the symptoms in SBS. It usually takes an accompanying blow to the head. And in about half to two-thirds of the 200 or so SBS cases prosecuted each year in the U.S., there are no outward signs of physical injury.”

He continues, “Indeed, this is the reason SBS is such a convenient diagnosis. It allows prosecutors to charge a suspected abuser despite no outward signs of abuse. But we now know that other causes can produce these symptoms, which means that some percentage of the people convicted in SBS cases are going to prison for murders that may have never happened.”

Radley Balko cites the case of Jennifer Del Prete who has been in prison for more than a decade for the murder of a 14-moth-old baby. She was convicted “of first-degree murder after the jurors* in her Illinois trial heard testimony about ‘shaken baby syndrome,’ or SBS.”

In January, “U.S. District Judge Matthew Kennelly ruled that the SBS evidence presented in Del Prete’s case wasn’t scientifically sound, and had jurors heard the evidence against the diagnosis, they would not have convicted her.”

However, that may not be enough for Ms. Del Prete and those like her in the criminal justice system.

Mr. Balko writes, “While the criminal justice system was quick to let in forensic evidence that convicted her, once convicted, the system puts a premium on finality. In order to get a new trial in a case like this, someone like Del Prete must show not only that she was convicted based on faulty scientific evidence, she must also show that she could not have known at the time of her trial that the evidence was flawed. For Del Prete, that will be difficult. She was convicted in 2003, well after doubts began to emerge about SBS.”

The Chicago Tribune on January 28 reported that the 97-page ruling by the judge, “laid out how the state’s own witnesses contradicted the key theory presented to jurors at trial — that Isabella died of acute trauma that could have been inflicted only when she was in Del Prete’s care. In light of that fact, (Judge) Kennelly asked whether any reasonable juror would have convicted her beyond a reasonable doubt of first-degree murder.”

“The answer to that question is a rather resounding no,” the judge wrote.

The paper notes, “Patrick Blegen, her lead attorney, said her legal team must now proceed on separate claims that her trial lawyer erred by failing to challenge the science behind shaken baby syndrome and presenting an inadequate expert to testify about the child’s injuries.”

“We are pleased with the judge’s ruling, but we know we still have some work to do,” Mr. Blegen told the paper.

Professor Deborah Tuerkheimer at the DePaul University College of Law recently published, “Flawed Convictions: Shaken Baby Syndrome and the Inertial of Injustice.”

SBS has been used, Professor Tuerkheimer writes, to establish “each element of the crime charged: that the act of shaking caused the infant’s injury or death; that the shaking was sufficiently violent to evince the mental state required for guilt; and that the person who shook the baby was the defendant.” SBS comes “as close as one could imagine to a medical diagnosis of murder.”

She writes about the 2008 successful appeal of a different defendant, Audrey Edmunds, “The criminal justice implications were staggering. The mainstream medical rethinking recognized by the court could not undermine this one conviction without undermining the convictions of others whose cases also depended on the triad.”

She wrote that her expectation was that this overturning of the conviction in the Edmunds case would trigger “a massive institutional effort to correct error.”  Instead, she encountered “a system not only poorly equipped to vet medical testimony but also averse to changing course.”

“Throughout the process—from prosecutorial decisions, to evidentiary rulings, to judicial review—we see a drive to push forward rather than revisit. A diagnosis of SBS sets in motion systemic confirmation, first in the clinical realm, and then the legal. The course of injustice is almost immovable,” she writes.

Early in April, the Seattle Met wrote a feature story, “The Trouble with Shaken Baby Syndrome,” writing, “After three decades and thousands of accusations and fractured lives, medical and legal experts are challenging shaken baby syndrome as a diagnosis. And as one family’s saga demonstrates, we can’t wait any longer to get it right.”

The magazine writes, “A number of reexamined cases in recent years—aided by new technology and debate among medical experts—have put proponents of the SBS hypothesis on the defensive. Ernie Lopez, who was serving a 60-year sentence for shaking an infant in his care to death, is now free, thanks in part to the work of retired Seattle lawyer Heather Kirkwood. So is Audrey Edmunds, a woman charged with the murder of a child in her care in the 1990s.”

“Yet even if they’re ultimately absolved of any wrongdoing, those suspected of SBS are left to pick through the debris of their former lives: loss of employment, financial ruin, the stigma of having been labeled a child abuser.”

In the Yolo County case, we have already seen both the defense and the family doctor punch holes in the theory of shaken baby syndrome. Given the medical uncertainty of the diagnosis, the misdiagnosis of the baby’s wounds from a purported fall, it seems the jury finding based on what might now be considered pseudo-science is inappropriate.

Are we asking too much for a jury to essentially weigh in on a medical diagnosis when actual doctors are in disagreement over the veracity of shaken-baby syndrome?

This is not a trite question, because as both Professor Tuerkheimer and Radly Balko note, the system really is not equipped to vet medical testimony.

Mr. Balko writes, “Things get murkier when the question isn’t who committed the crime, but if a crime was committed at all. The new research into SBS doesn’t state definitively that without external injuries, a child couldn’t have died from shaking. It suggests only that there are other possibilities—that shaking wasn’t the only possible cause of death. It isn’t an advance in science that will produce dispositive exonerations. It’s an advance that merely calls prior convictions into question.”

As he writes, “We haven’t yet found an adequate way to deal with that. DNA testing has forced the courts to admit when the criminal justice system definitely got it wrong. But the courts are much less likely to take action when new research suggests the system might have made an error.”

Mr. Balko concludes, “Now that we know that the criminal justice system is prone to error, perhaps it’s time to revisit the post-conviction emphasis on finality, particularly in cases decided on evidence that science later calls into doubt.”

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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23 thoughts on “Eye on the Courts: Shaken Baby Syndrome Has Troubling Scientific Foundations”

  1. Elizabeth Bowler

    A great article on some of the faulty science behind shaken baby syndrome. I certainly hope that we will hear lots more about this from the defense in the Stone case! As I have stated before, there are other medical conditions that exactly mimic shaken and battered baby, including Vitamin D deficiency or infantile rickets. I have yet to hear that this condition or others were excluded in this case.

    1. Tia Will

      E.Bowler

      I agree that there are other conditions and situations that can mimic SBS.
      I think that your mention of Vitamin D deficiency and particularly infantile rickets is noteworthy for another reason. These are conditions that probably would be detected on routine well child visits before they would reach a lethal stage assuming a child is receiving standard preventive well child care. This speaks not to the issue of violence against the child, but might speak to either neglect or to a systems failure to provide adequate access to care for the child.
      At least I think so. I am not a pediatrician so please feel free to correct me if I am wrong.

      1. Elizabeth Bowler

        Infantile rickets, which is increasing rather dramatically with declining maternal vitamin D levels, is unfortunately not easily detected on routine well child exams, that is, of course, unless a 25 hydroxy Vitamin D level is done on the mother and the child. It has very different signs, symptoms and clinical presentation than childhood rickets and many physicians, including pediatricians, are unfamiliar with it. There have now been numerous cases of shaken and battered baby that turned out to be infantile rickets. You might be interested in this interview with clinical radiologist David Ayoub MD who specializes in this particular syndrome.
        https://www.youtube.com/watch?v=T1mJuvizWNI

          1. Tia Will

            And one other thought. Even though the diagnosis may not be an easy one to make short of the serum levels you suggested, I am wondering still about the severity of the condition leading up to the point of potential lethality not being a trigger to order these blood tests which are very easy to obtain and return within 24 hours.

          2. Elizabeth Bowler

            That’s one reason why I believe that monitoring serum levels is essential in all patients but especially in pregnant women because of the devastating potential effects on the fetus. I routinely do serum levels on 100% of my patients and find that about 95% are deficient.

  2. Tia Will

    D.D.

    I am glad that you asked. The following information is from the Mayo Clinic. It is important to understand that the Mayo is a leading clinic in minimization of radiation risk. The relatively low levels of radiation they are using are likely to be lower than the baby would have encountered here in Yolo County but I cannot be certain on that count.

    The risk is that of radiation increasing one’s life time cumulative risk of cancer. This is the relevant info.
    Especially note the comment on the increased susceptibility of children.

    “Normally, people get about 3 millisieverts of radiation each year from background environmental radiation, such as radon and cosmic rays. In higher elevation areas such as Colorado, the background exposure can be up to 10 millisieverts per year, yet no increased incidence of cancer in higher background radiation locations has been observed. A CT scan can deliver anywhere from 2 to 10 millisieverts of radiation, depending on what type of scan a patient receives. For exams requiring multiple scans, this can add up to 20-30 milliSieverts, but this is still considered a low dose of radiation. For some, scans, such as a head CT, the exposure is very low, about 1 – 2 milliSieverts.”
    Because children have a longer life expectancy than adults and some of their tissues are more sensitive to radiation that for adults, we are particularly careful to use lower doses in children. For a CT scan of a baby, the amount of radiation that we use is about five times lower than for an adult.”

    In this case, I think ( as a non specialist in this area) that it is safe to say that a whole body scan would have been necessary to determine whether or not there were any associated injuries that might be attributable to a fall.
    This would depend upon whether the possibility of SBS or other forms of child abuse even was on the differential list for the examining physician.

  3. Tia Will

    “But the courts are much less likely to take action when new research suggests the system might have made an error.””

    I don’t want to derail the conversation too far, but I recently encountered a situation which I think speaks directly to this point.
    I attended the candidate forum for the position of Yolo County judge. The question was asked of all candidates
    ( paraphrased) “what one change would you like to see in the Yolo County court ( judicial) system ? ”
    All of the candidates praised the current functioning of the court system. Not one of them offered a single improvement that they would make. I found this astounding that of four candidates, not one had so much as a single suggestion for improvement. I spoke to one of them later about my concern and was answered as follows
    ( again paraphrasing). “We are trained not to criticize the system in public”. I found this answer to be very candidate and also very troubling.

    1. South of Davis

      Tia wrote that a candidate running for office said:

      > “We are trained not to criticize the system in public”.

      Let me translate (after working in politics for more than 30 years):

      “We have enough trouble getting elected and are trained not to say anything in public that will get people mad at us”…

    2. D.D.

      Very troubling indeed. At W.I.C. we were always encouraged to share our opinions re: its shortcomings and how we could improve it. I was never once discouraged. Some aggressive men used to tease me, but I was never shut down in meetings. And I was never discouraged to speak to the public about W.I.C. It is a very proud organization.
      Very troubling that this organization does not want to admit even one minor shortcoming. Yikes.

      1. Tia Will

        D.D.

        In the interest of fairness, I want to clarify my comment. The candidate did not say that they were discouraged from bringing up short comings in meetings. The statement was that they were discouraged from discussing them in public.

  4. Davis Progressive

    there are several different problems embedded in this issue

    the first is that courts allow scientifically untested testimony to come in
    second, we are asking jurors to weigh in where doctors disagree
    third, the system as the vanguard highlighted last week makes it hard to overturn wrongful convictions and this is worse than most since there is only evidence of flawed science rather than proof of wrongful convictions.

    1. Tia Will

      I have already shared my thoughts and will be happy to answer any questions to which I know the answer, or can reasonably find it. However, SBS science, as has been pointed out is at best murky. I would have to defer to pediatric experts for any specialized knowledge of this area. My expertise tends to end once I have handed the baby to the pediatric team for initial evaluation.

  5. WesC

    The whole shaken baby syndrome idea is based on very slipshod science. Dr. Steven C. Gabaeff is a California physician who has specialized in child abuse cases, and is a member of the Los Angeles Superior Court Expert Witness Panel. Dr. Gabaeff is also one of those rare medical practitioners who is board certified in Emergency Medicine, and who understands the flaws in the currently prevailing views of SBS. In one of his peer reviewed published articles…. “Abstract:
    Child abuse experts use diagnostic findings of subdural hematoma and retinal hemorrhages as
    near-pathognomonic findings to diagnose shaken baby syndrome. This article reviews the origin
    of this link and casts serious doubt on the specificity of the pathophysiologic connection. The
    forces required to cause brain injury were derived from an experiment of high velocity impacts on
    monkeys, that generated forces far above those which might occur with a shaking mechanism.
    These forces, if present, would invariably cause neck trauma, which is conspicuously absent
    in most babies allegedly injured by shaking. Subdural hematoma may also be the result of
    common birth trauma, complicated by prenatal vitamin D deficiency, which also contributes to the
    appearance of long bone fractures commonly associated with child abuse. Retinal hemorrhage is
    a non-specific finding that occurs with many causes of increased intracranial pressure, including
    infection and hypoxic brain injury. The evidence challenging these connections should prompt emergency physicians and others who care for children to consider a broad differential diagnosis
    before settling on occult shaking as the de-facto cause. While childhood non-accidental trauma
    is certainly a serious problem, the wide exposure of this information may have the potential to
    exonerate some innocent care-givers who have been convicted, or may be accused, of child
    abuse. [West J Emerg Med. 2011;12(2):144-158.]”
    Unfortunately for the Stone family they will now probably have to sell everything they own and beg and borrow from everyone they know to keep dad out of prison for being accused of causing a death that could probably have been prevented if their Kaiser MD would have practiced as a reasonable and prudent pediatrician. All Kaiser members are required to sign an agreement that all claims are subject to binding arbitration, and even if they could file suit, California has a limit of $250,000 for a wrongful death claim resulting from medical negligence.
    This family is living in hell. They have lost their precious baby. Quentin may end up spending many years in prison if convicted, and will be forever branded as a child murderer in the eyes of many even if acquitted. They will be paying off legal bills for many many years, and the compensation by the medical professionals who clearly could have prevented this tragic loss will be pennies, if anything at all.

  6. Tia Will

    WesC

    I completely agree with you that this is a tragic situation and that every one involved is “living in hell”.
    I think it would be wrong to rush to judgement regarding the actions of anyone involved in this case.

  7. DavisBurns

    One interesting aspect of this case is the delay of almost a month between the injury and the child’s death. In other shaken baby prosecutions, the person who was with the child when the injury required medical treatment has been the person charged with the crime and the presumption was the effects of being shaken would result in emergency care immediately. So when a is baby taken to emergency by a sitter, the sitter is charged with the crime. But this case shows the child could have been injured before it came to the sitter. Seems like it is much harder to identify the perpetrator if it could be anyone who had the opportunity during the last month. It is hard to believe this case has gone to trial when there is so much controversy over this diagnosis.

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