The Appeal Podcast: Re-examining the Science of Shaken Baby Syndrome

With Appeal staff reporter Elizabeth Weill-Greenberg.

Shaken Baby Syndrome (SBS) has been the subject of countless news specials, TV drama plots, and shocking tabloid headlines––horrific tales of child abuse, quickly met with the firm justice of the state. But in recent years, medical and legal experts have begun pushing back against the conventional wisdom surrounding SBS, questioning its fundamental scientific basis. Today we are joined by Appeal staff writer Elizabeth Weill-Greenberg to talk about efforts to re-examine many of the assumptions about how our legal system treats SBS cases.

Adam: Hi welcome to The Appeal. I’m your host Adam Johnson. This is a podcast on criminal justice reform, abolition and everything in between. Remember, you can always follow us at The Appeal magazine’s main Facebook and Twitter page, and as always you can rate and subscribe to us on Apple Podcast.

Shaken Baby Syndrome, or SBS, has been the subject of countless new specials, TV drama plots and shocking tabloid headlines. Horrific tales of child abuse quickly met with the firm hand of justice by the state. But in recent years, medical and legal reform experts have begun pushing back against the conventional wisdom surrounding SBS questioning its fundamental scientific basis. Today we are joined by Appeal staff writer Elizabeth Weill-Greenberg to talk about efforts to reexamine many of the faulty assumptions about how our legal system treats SBS and what if anything can be done to free those wrongfully in prison.

Elizabeth Weill-Greenberg: One of the trickiest things about Shaken Baby Syndrome cases and one of the challenges in defending people is that it’s not just about the identity of the perpetrator, it’s actually about was a crime committed at all? And so what you have in these cases where exonerations have occurred is you have medical experts saying ‘we don’t know what happened’ and that should’ve been the diagnosis. We just don’t know.

[inaudible]

Adam: Hi Elizabeth, thank you so much for joining us.

Elizabeth Weill-Greenberg: Thanks so much for having me on Adam.

Adam: So you wrote a piece recently about something that is sort of broadly known as SBS or Shaken Baby Syndrome, which has been popular for some time in terms of crime reporting and 60 Minute specials, etcetera, etcetera. Can you tell us about the case of Michelle Heale and what that says about the broader issue of SBS?

Elizabeth Weill-Greenberg: Yeah, absolutely. So I kind of stumbled upon Michelle’s case in 2015 when she was on trial. I teach a class on wrongful convictions at Rutgers in New Brunswick, New Jersey, and I was preparing for the unit on Shaken Baby Syndrome and I was just doing quick Google searches to sort of refresh myself on the issue. And I saw that someone was being prosecuted for SBS not so far from my home. And I was pretty horrified because it looked like a very sort of traditional SBS prosecution, which I’ll explain in a moment. And so the case of Michelle, it follows a pretty traditional trajectory when we look at Shaken Baby Syndrome cases. In Michelle’s case, what you have is she’s a mom, she is watching her friend’s baby, babysitting Mason Hess. She’s been doing this for about a year while she also watches her own twins, who I think at the time were about three and no history of violence, described by all as a loving and patient caregiver and mom. So one day Mason is there and he vomits at her home and seems to be coming down with something. The mom, Kelly Hess, comes, picks up the baby, takes the baby to the pediatrician’s office where Mason is diagnosed with an ear infection and an upper respiratory infection. Baby is brought back to Michelle’s for babysitting the next day and during this time, in the morning, suddenly as Michelle is feeding him, he collapses. His body goes limp. She thinks maybe he was choking. Calls 9-1-1. Ambulance comes, baby’s taken to the hospital, never regained consciousness. At that point what happens is the child abuse specialists from CHoP in Philadelphia tell the police that this baby was shaken to death and from there the case is sort of over for Michelle. What you see happen in these cases, and what happened in Michelle’s case and why I wanted to focus on Michelle’s case, is because it is such a typical prosecution. What you have is you have child abuse specialists, specialists who are proponents of this diagnosis. They brought in outside experts, the state did. And what you have is, their testimony is ‘This baby was shaken to death. We can tell you based on science is telling us that this is true. He has these sort of — it’s called like basically the triad which are — it’s bleeding in the eyes and bleeding in parts of the brain’ and they say that, you know, ‘this means that the baby was shaken to death unless the baby was dropped from a third floor window or unless the baby was in a car accident.’ And so this is very, very persuasive testimony to a jury. And in Michelle’s case, the jury ended up siding with the state’s experts and she was convicted of manslaughter.

Adam: Right. So I think the first question people would have listening to this is what is the current scientific consensus of Shaken Baby Syndrome? How contested is this? You write that quote “between 1990 and 2000 there were more than 200 convictions based on Shaken Baby Syndrome.” And then you say from 2001 to 2015 there were 1,600 convictions according to a study conducted by The Washington Post and the Medill Justice Project. So it seems like there’s obviously been an increase. This is now standard issue. What does the science community say? Is there a consensus or is it kind of a 50/50 split?

Elizabeth Weill-Greenberg: What we really saw in the nineties was this pretty extreme uptick in prosecutions and convictions of people for Shaken Baby Syndrome. And what would typically happen in these cases is that there was a consensus that the baby was shaken and we can prove the baby was shaken based off of these findings. You know, based on findings in the eyes, based on findings in the brain, and you would actually have the state experts and the defense all saying, ‘Yes, this is shaking. But maybe there’s some question about who shook the baby.’ That was never very persuasive to a jury because the state’s experts would say in case after case the shaking was so severe that the baby would have immediately collapsed and there could be nothing, what’s called sort of a lucid interval, meaning that this traumatic event would happen, this abuse would happen and the baby would be sort of rendered immediately unconscious. And so that’s what we had really throughout the nineties very, very little disagreement. These findings must mean that the baby was shaken to death. Not only that, we can identify the perpetrator. So what you really had is you had medical experts convicting people of murder and child abuse because they’re establishing that this was severe shaking, enough to cause death or severe injury, and it had to be the person last with the baby. So you have these prosecutions going and there was really not much of a defense to them. Being charged as sort of as good as being convicted in the nineties. You start to see a break with that and you start to see some challenges among the legal and scientific community, of courts very slowly, attorneys, medical doctors, asking questions and really saying ‘We don’t think this was ever actually scientifically validated.’ And one of the best examples to show how the consensus was finally broken is the case of Audrey Edmunds. Now, Audrey isn’t the first person to be exonerated of Shaken Baby Syndrome, but the opinion that was issued by the court I think is really instructive. So Audrey’s case is almost identical to Michelle’s. I think it was in the early nineties, caregiver in her home in Wisconsin, baby suddenly collapses. Baby had been previously sort of fussy and crying and Audrey is convicted of shaking the baby to death. The Wisconsin Innocence Project takes on Audrey’s case in the, I think it’s the early two thousands that they start representing her, the Wisconsin Innocence Project. And what happens is that in 2006 what they show is that the science has changed and that the medical community is no longer unanimous in saying Shaken Baby Syndrome is always caused by these different, I’ll say injuries, but by these different injuries implies that someone actually committed it. But they’re saying that there’s, with Audrey’s case what Keith Findley of the Wisconsin Innocence Project said was that there’s no longer a consensus around Shaken Baby Syndrome.

Adam: So what is causing these deaths?

Elizabeth Weill-Greenberg: One of the trickiest things about Shaken Baby Syndrome cases and one of the challenges in defending people is that it’s not just about the identity of the perpetrator, it’s actually about was a crime committed at all? And so what you have in these cases, in Audrey’s case and in many other cases where exonerations have occurred, is you have medical experts saying ‘we don’t know what happened’ and that should have been the diagnosis. We just don’t know. You know there is Sudden Infant Death Syndrome, which we’ve accepted, right? That sometimes babies will die suddenly and we don’t know the reason. And that is sometimes the most responsible kind of cause of death that a doctor can provide is, ‘I don’t know what happened.’ Other times it can be a head injury that was thought to not be serious, but may have been sort of the triggering effect for this catastrophic event. In Michelle’s case, and I don’t know what caused Mason’s death, but what we have in the case of Mason is he had fallen the week before. He had a little bruise on his forehead. This was not, you know, he fell and he got up. He did have an ear and respiratory infection the day before. He did vomit. So what we’re seeing in Mason’s case and in some of these other cases where again, the baby is exhibiting signs that something is not okay, is it could mean that there’s been a bleed in the brain that was re-triggered by a simple fall. It could mean that there were complications from a typical infection. There’s a case I talk about in the story of Jennifer Del Prete where it’s believed that the baby actually had a stroke and that was the cause. That’s kind of what we’re seeing is it could be a range of things and it could also be that we just don’t know.

Adam: So I guess the obvious followup to this is that if one accepts that SBS is basically bullshit or at least is majority bullshit, there’s pretty horrific implications to that, which is that there are hundreds if not thousands of people in jail suffering a sort of compound injustice. The original trauma of obviously losing your child or a child under your charge and then spending twenty years in prison. So you know what that 16 people have been exonerated for assault or murder involving SBS according to the National Registry of Exonerations. This to me seems quite low. What is the pathway for those trying to get these people out of jail?

Elizabeth Weill-Greenberg: I mean the fact is is that despite very serious questions about the validity of SBS as a diagnosis, these prosecutions are continuing and people are staying in prison. SBS I think is particularly difficult to challenge in court. Whether you’re at the trial level or after you’ve been convicted, and I think it’s because of a couple of reasons. One is it will come down to a battle of the experts. That’s exactly what happened in Michelle’s case. You know, unlike the cases of the nineties where everyone’s agreeing that the baby was shaken to death and the question is who did it, in Michelle’s case they really did put the diagnosis in many ways on trial and they said number one there are issues with this diagnosis, number two, it was actually not physically possible for Michelle, who’s a very small woman to have shaken this baby to death. So in Michelle’s case, we have a serious challenge to the diagnosis, which we didn’t have in the nineties. That being said, right, it comes down to a battle of the experts and the jury sided with the state’s. So that’s one thing that I think makes these cases really, really difficult to defend. The other issue I think is that I really see SBS in that greater context of these forensic sciences that we’ve always taken for granted as true when they really have not been validated, they have not survived any sort of scientific scrutiny. And I think, you know, we can put blood spatter analysis, handwriting analysis, tool mark analysis, hair microscopy, right? You know, you have all of these things that have convicted so many people — bite mark analysis still is admitted into courts — and it’s tragic actually because we have these things that are sort of masquerading as science being used to convict people when they have not been subjected to the scrutiny that they need to be. And I think it’s particularly tragic because when a jury hears that science is telling us that the defendant hurt or killed this victim, that’s very, very powerful. That’s very, very hard to overcome.

Adam: Yeah. I mean, this is something we’ve talked about before when we talked about forensics, which is that it’s sort of too big to fail because the implications are so troubling that we sort of, you know, once you start pulling it one thread, the whole thing begins to unravel. It seems like many of these forensic sciences have just put so many people in jail that what you have is you have a kind of, to the extent to which there has been scientific re-investigation or re-interrogation, it’s almost like they’re kind of trying to limit the damage that they’re saying ‘Okay, go back and find me something that says there’s some validity to this, because if there’s no validity to this, that’s too troubling of a reality to face.’ In ten years if you had to sort of put on your prognostication cap, where do you view this as being in terms of scientific consensus in ten, fifteen years?

Elizabeth Weill-Greenberg: I think that’s 100 percent correct. In terms of the future, I mean, my hope is that as a rule we don’t allow any of these kinds of forensic disciplines into the courtroom before they’ve been scientifically validated. And I include SBS as part of that. I think what will help get us there is journalism that exposes when this has occurred, doctors speaking up and admitting if they were wrong, that they were wrong in cases which has occurred. That actually occurred in Adria Edmund’s case. Someone, the pathologist who performed the autopsy in Audrey’s case and testified against her, he later changed his mind and testified on her behalf at a post-conviction hearing, which helped lead to her exoneration. I think doctors standing up is a very sort of courageous thing to do and I think will really help. But I think it just has to be that we kind of keep at the issue and keep talking about it and keep challenging it. And I also think that’s really up to journalists that when, you know, let’s not wait until the person is convicted and has already served ten, fifteen, twenty years. Like, if you’re covering crime and the state tells you or the cops or the prosecutors tell you, ‘Hey, you know, yeah, this person’s being charged with SBS,’ which should be part of your story from the beginning are the questions that surround SBS. And that should be when you’re reporting on an arrest and end when you’re reporting at trial.

Adam: Yeah. I mean because the whole thing is so emotionally charged, right? Like the most important thing a state can do is protect children. So when you start talking about the protection of children, everyone checks the brain at the door. It’s purely emotive. And I think that the sort of other into the equation, of the trauma and the violence of prison itself to say nothing of tearing the remaining children away from their parents, to sort of just say that, ‘Well that’s the cost of doing business.’ What is the current status of Michelle’s case? How long has she been in prison and how much longer will she be in prison likely?

Elizabeth Weill-Greenberg: She was convicted in 2015 and sentenced to 15 years. And so the status of her case right now is that her conviction was upheld on appeal and there really hasn’t been any other activity on her case.

Adam: Okay. Well, thank you so much for coming on The Appeal. This was extremely informative.

Elizabeth Weill-Greenberg: Well, thank you so much for having me and for talking about this issue. I really appreciate it.

Adam: Thank you to our guest Elizabeth Weill-Greenberg. This has been The Appeal podcast. Remember, you can always follow us at The Appeal magazine’s main Facebook and Twitter page, and as always, you can rate and subscribe to us on Apple Podcast. The show is produced by Florence Barrau-Adams. The production assistant is Trendel Lightburn. Executive producer is Craig Hunter. I’m your host Adam Johnson. Thank you so much. We’ll see you next week.