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Monday, November 21, 2016

The Shaken Baby Syndrome and the Problem of Dueling Experts

     When a presumably healthy baby dies in his or her crib for no apparent reason, and there is no evidence of foul play, rather than classifying the cause of death as "unknown," or "undetermined," a coroner or medical examner will usually call the fatality a "sudden infant death syndrome" (SIDS) case. Although this is the same as ruling the death as "undetermined," it sounds more scientific. At one time, the parents of SIDS babies found themselves under clouds of suspicion. Today, as a result of scientific study of these cases, forensic pathologists are attributing natural death causes in infant deaths that earlier would have been classified as SIDS fatalities.

     The "shaken baby syndrome" (SBS) refers to signs of physical trauma found in children under six who have been violently shaken. When a baby or toddler is shaken too hard, the victim's brain is jarred against the skull, causing it to bleed and swell. Most pediatricians and forensic pathologists believe that to diagnose SBS, they must find, at minimum, evidence of subdural hematoma (brain hemorrhaging), retinal bleeding (broken veins in the eyes), and cerebral edema (liquid on the brain that causes it to swell). The conventional wisdom had been that a child with these injuries who had neither been in a car accident or fallen from a two-story window had been violently shaken. Supportive evidence of SBS might include trauma to the neck and spine, bruises on the arms and torso, and broken ribs.

     In the late 1990s, a handful of pediatric researchers began to question the science behind the standard SBS diagnosis.Could cerebral edema and blood in the eyes and brain have other causes such as vitamin deficiency, disease, or reactions to vaccines and drugs? Diseases thought to cause symptoms of SBS included hypohosphatasia, brittle bone disease; Alagilles's Syndrome, a liver ailment; Bylers Disease (a liver disorder common among the Amish); and glutaric acidura (acid buildup in infants that causes paralysis and retinal bleeding). Some experts believe that a relatively short fall to a hard surface, say from three feet, can cause damage to the brain similar to that found in SBS victims.

     Because there is no agreement among pediatricians and forensic pathologists what physical evidence of SBS consists of, homicide trials involving defendants accused of shaking infants to death often involve dueling expert witnesses testifying against each other.

Shirley Ree Smith Case

     In 1997, a jury in Van Nuys, California convicted Shirley Ree Smith of shaking her seven week old grandson to death. The prosecutor convinced the jury that Smith had shaken the baby to stop him from crying. The medical examiner, in explaining why there wasn't as much cerebral bleeding as one might expect in a SBS case, said the baby had been shaken so violently the blood vessels in the brain stem suffered "shearing," casusing instantaneous death without bleeding due to the fact the baby's heart had stopped beating. The autopsy had failed to produce evidence of brain swelling or retinal bleeding.

     The Smith defense put two forensic pathologists on the stand who classified the death as a SIDS case, noting that the baby had jaundice, a heart murmer, and low birth weight. The jury accepted the prosecution's version of the facts, and found Shirley Ree Smith guilty. She received a sentence of fifteen years to life.

     A state court of appeals upheld the conviction. The Ninth Circuit federal court of appeals, however, in 2006, reversed the conviction and ordered Smith released from prison on the grounds the jury had missclassified the baby's death as a SBS fatality. The state prosecutor appealed the case reversal to the United States Supreme Court.

     On October 31, 2011, the supreme court, in a 6 to 3 decision, reinstated Shirley Ree Smith's homicide conviction. This meant she would have to return to prison. The six justices upheld a longstanding legal principle that an appeals court cannot substitute its judgment for a jury's. The high court, recognizing the jury in the Smith case may have relied on the wrong forensic pathologists, reminded the Ninth Circuit Court that judges in jury trials cannot decide the law and the facts. If Shirley Ree Smith had a remedy in law, it would have to be in the form of executive clemency.

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