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Damage Control in Abusive Head Trauma (AHT) Cases – A Legal

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Damage Control in Abusive Head Trauma (AHT) Cases – A Legal Powered By Docstoc
					Damage Control in Abusive Head Trauma (AHT) Cases – A Legal
Perspective
Presented By Brian Holmgren, Assistant District Attorney General
Nashville, TN

Insulating Your AHT Case
1. Recognize cases don’t end with convictions
•Appeals
•Post conviction
•Public hearings & inquiries
•Law review critiques of prosecutions and other negative legal commentary
•Record we make initially lives throughout life of case
•More than just presenting & arguing facts

Numerous Avenues for Attack
•Pretrial motion hearings to exclude Shaken Baby Syndrome (SBS) testimony
(Daubert/Frye challenges)
•Juvenile court hearings
•Criminal trials
•Civil trials; malpractice claims; 1983 actions
•Habeas corpus petitions alleging:
         • Ineffective assistance of counsel
         • Prosecutorial misconduct
         • Irresponsible expert testimony presented by prosecution experts
•Post conviction petitions (similar)
•Newly discovered evidence claims
•Public inquiries & reports (prosecutors and prosecution experts frequent focus of
attacks)
•Media stories (prosecutors and prosecution experts frequent focus of attacks)
• Law review and professional commentaries critical of prosecution and experts and
raising ethical and due process challenges. See, e.g., Elaine W. Sharp, (2004), A Matter
of Gravity, The Warrior, pp. 27-36; Genie Lyons, (2003), Shaken Baby Syndrome, A
Questionable Scientific Syndrome and A Dangerous Legal Concept, 2003 Utah L. Rev.
1109; Deborah Tuerkheimer, (2009), The Next Innocence Project: Shaken Baby
Syndrome and the Criminal Courts, 87 Wash. U. L. Rev. 1; Lieutenant Colonel Matthew
D. Ramsey, (2006), A Nuts and Bolts Approach to Litigating the Shaken Baby or Shaken
Impact Syndrome, 188 Mil. L. Rev. 1.

The law presumes a man innocent until he is found guilty, and then if he has any money
left his lawyer continues the presumption.

Insulating Your AHT Case
2. Use highly skilled & highly qualified experts
• Establish good precedent
• They know what to say & how to say it
• They’ll use correct terminology



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•   They won’t confine opinions to single mechanism
•   They won’t call something SBS when there is clear evidence of impact trauma

Insulating Your AHT Case
3. Don’t stretch limits of expert testimony
• Bad precedent
• Impeachment in future cases
• Public spectacles from public inquiries
• Ethical considerations for prosecutor and expert witness (see infra)

The Essence of Expert Testimony
Medicine knows some things
Experts present it
Jurors & judges interpret it
Chaos ensues

Recent Examples
• Goudge Inquiry & Report (2007-08)
• United Kingdom Review (2005)
• State of Wisconsin v. Audrey Edmunds (2008)
• Grant v. Warden (CT 2008)
• State v. Schoonmaker (NM 2008)
• State of Kentucky v. Martin & Davis (2008)
• In re Alan G. Giminez Habeas Petition (CA 2010)
• Smith v. Mitchell (2006) & (2010)
• Tennessee examples

WI v. Edmunds 2008
746 N.W. 2d 590 (Ct. App. 2008)(motion for new trial on basis of newly discovered
evidence)
Prior decisions at 598 N.W.2d 590 (Ct. App. 1999) (affirming conviction on direct
appeal);
Edmunds v. Deppisch, 313 F.3d 997, (7th Cir. 2002), cert. denied, 538 U.S. 1066 (2003)
(rejecting habeas petition)

WI v. Edmunds 2008
• D convicted 1996 of reckless homicide in shaking death of 7-mo-old child she was
caring for
• Defense at trial is parents shook - not D
• Critical issue is immediacy of symptoms
• Classic SBS injuries as listed below
• D says baby was normal when dropped off
• Trial court commented D significantly impeached on cross, lots of inconsistencies
• Evidence admitted at trial of defendant’s abuse of another child to counter her
introduction of “good character” evidence. (Defendant observed slamming book over the
head of a two-year-old at a public library and then acting like nothing happened.)



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WI v. Edmunds 2008 (Basis of medical diagnosis at trial from Shelly Rusch outline)
•     SDH & SAH in locations characteristic of inflicted injury,.
•    Severe brain injury suggestive of an extended hypoxic period.
•    Evidence of impact injury to scalp.
•    Extensive retinal and preretinal hemorrhages and vitreous hemorrhages bilaterally,
       with retinoschisis and retinal folds.
•    Absence of any external sign of trauma.
•    Absence of a history of a high-energy traumatic event.
•     Marked hypothermia on arrival at the emergency department (core T=91.7°F)
       suggestive of axonal brain injury. History in which multiple observers describe
       Natalie as perfectly normal upon and shortly after arrival. History of events
       and descriptions of Natalie’s clinical state by participants in Natalie’s
       resuscitation and medical care directly following 911 call until death same day.
•    Hospital record and autopsy report – The Differential Diagnosis

WI v. Edmunds 2008
• Loses 1997 post conviction motion claiming newly discovered evidence
–One expert who would testify impact needed and none present, rebleed & lucid interval
–Second agreeing baby died from head trauma but can’t time injury, lay person could not
tell neurological injury
–Court notes first was different strategy than at trial where parents blamed
–New claims not produce different result
Edmunds Post Conviction Motion 1997 (from Shelly Rusch outline)
Asserts newly discovered evidence (NDE)
Affidavits from Drs. John Plunkett & Janice Ophoven
Plunkett: Original Diagnosis Incorrect
Trial Experts were WRONG re:
1. Retinal hemorrhage diagnostic for shaking injury
2. Absence of ‘lucid interval’ in an infant with a head injury
3. Amount of force required to cause the injury.
4. Retinal hemorrhages are found in kids with ruptured vascular malformations,
    arachnoid cysts, CNS infections and who’ve been resuscitated. No scientific data to
    support the conclusion that “multilayered flame shaped retinal hemorrhage with
    macular folds” is a pathognomonic sign for shaking . . . .
5. Children with severe head injuries have “lucid intervals”
6. Natalie’s respiratory arrest . . . most likely caused by irritation of the brainstem
        respiratory centers by subarachnoid blood”
7. Disputes any acute brain trauma and asserts primary brain trauma is at a few weeks
        old and is not necessarily “indicative of abuse.” He speculates that acute SDH is
        “re-bleed”
Plunkett’s assertions are those he frequently makes in both trial testimony and in support
of other post conviction applications, and these assertions are frequently made by other
experts as well.


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Assertions made by Dr. Janice Ophoven
    1. Natalie died from head injury resulting in seizures and anoxic brain injury.
    2. Had suffered significant head trauma on at least one prior occasion.”
    3. The onset of symptoms “can be widely variable” and therefore it is impossible to
        determine timing of the injury.
Ophoven’s assertions are not consistent with Plunkett’s and her current claims re AHT
are inconsistent with these statements
Trial Judge Daniel Moeser denies Edmunds post conviction application without an
evidentiary hearing noting:
- Jury not given the proffered evidence because it was not presented and was not
consistent with the defense the defendant chose. . . . (Some Other Dude Did It) .
Case was truly tried. No miscarriage of justice.”
- The Plunkett/Ophoven testimony would not be NDE - Edmunds did not disprove she
was negligent in seeking to discover it and that a different result was probable if it had
been offered.
- The conviction did not rest entirely on medical evidence. The defendant’s testimony
“was devastating to the defense. … [t]he inconsistencies between interviews with law
enforcement and the defendant’s trial testimony were very significant. ..”[o]ne had to be
there to understand it completely.”
Edmunds appealed but on other grounds.
Did NOT raise issue of new trial based upon experts or NDE

WI v. Edmunds 2008
•Loses 2 direct appeals 1999 and federal habeas in 2002
•Files motion for new trial in 2006 alleging “newly discovered evidence”
•6 defense experts claim “significant debate now in medical community on SBS”
–One is original ME who changes position re timing issues based on single case
–No longer “fringe position” as in 1996
•4 experts for prosecution disagree & affirm expert testimony at trial

Post Conviction Motion for New Trial by the WI Innocence Project (from Shelly Rusch
outline)
• Assertions made by the Innocence Project:
• At trial, State relied upon claims that:
• Injuries were exclusively diagnostic of SBS and indicative of axonal injury
• Axonal injury would result in infant being obviously, immediately ill
• No one else could have caused this injury given its severity and consequent obvious
manifestations.
• The “triad” no longer diagnostic of SBS
• Medical community is “divided”
• No longer agreement as to the timing or causes of “constellation” of signs
• Infants can experience lucid intervals
• Natalie’s signs not exclusively diagnostic of SBS – can be indicative of other causes.

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These assertions are repeatedly advanced in other Innocence Project petitions and in other
defense post conviction challenges
These assertions are echoed by Professor Tuerkheimer in her law review article

WI v. Edmunds 2008
•Trial court finds there is “new evidence” but not likely to change outcome
•Both parties presented “credible evidence” but State’s “more convincing”
•D appeals and Court of Appeals reverses
•CCA accepts claims by defense experts that a significant medical shift has occurred in
past 10 years, what would have been fringe views then are now legitimate & part of
significant debate

WI v. Edmunds 2008
•CCA rules that since trial court found both sets of experts credible it was not appropriate
for judge to weigh credibility
•Proper determination was whether there was reasonable probability jury hearing new
medical evidence would have a reasonable doubt about D’s guilt
•‘Fierce debate’ among experts suggests yes
•WI Supreme Ct. refuses to review
•State does not retry because parents don’t want to go through second trial

WI v. Edmunds 2008
“The newly discovered evidence in this case shows that there has been a shift in
mainstream medical opinion since the time of Edmund’s trial as to the causes of the types
of trauma Natalie exhibited. We recognize, as did the circuit court, that there are now
competing medical opinions as to how Natalie’s injuries arose and that the new evidence
does not completely dispel the old evidence…”

WI v. Edmunds 2008
“Indeed the debate between the defense and State’s expert reveals a fierce disagreement
between forensic pathologists, who now question whether the symptoms Natalie
displayed indicate intentional head trauma, and pediatricians who largely adhere to the
science as presented at Edmund’s trial…”

WI v. Edmunds 2008
“However, it is the emergence of a legitimate and significant dispute within the medical
community as to the cause of these injuries that constitute newly discovered evidence…
Now a jury would be faced with competing credible medical opinions in determining
whether there is a reasonable doubt as to Edmund’s guilt.”

WI v. Edmunds 2008
•Implications & observations
– Credibility determinations by judge critical
– Ipse dixit of defense experts controlling


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– Representations that debate is legitimate and not a fringe position is more than
debatable
–Opinion suggests that “pediatricians” remain committed to SBS but “forensic
pathologists” are not
–No end to mischief that can follow
–It’s not newly discovered evidence, only handful of new research articles cited in
support
–New ammunition for future defense challenges but legal precedent not followed
WI v. Edmunds 2008 (from Shelly Rusch outline)
NDE – What does defense have to prove?
To prevail must first prove by clear and convincing evidence that
• the evidence was discovered after conviction;
• the defendant was not negligent in seeking evidence;
• the evidence is material to an issue in the case; and
• the evidence is not merely cumulative." State v. Armstrong, 2005 WI 119, ¶ 161, 283
Wis. 2d 639, 700 N.W.2d 98 (quoting State v. McCallum, 208 Wis. 2d 463, 473, 561
N.W.2d 707 (1997)).
•Then "the circuit court must determine whether a reasonable probability exists that a
different result would be reached in a trial." Id. The reasonable probability
determination does not have to be established by clear and convincing evidence, as it
contains its own burden of proof. A reasonable probability of a different outcome exists
if "there is a reasonable probability that a jury, looking at both the [old evidence] and the
[new evidence], would have a reasonable doubt as to the defendant's guilt." McCallum,
208 Wis. 2d at 474.
. Would the allegedly NDE be admissible evidence?
     • §904.01 The evidence relates to a proposition that is of consequence to the
        determination of the action & has the tendency to make a consequential fact or
        proposition more probable than it would be without the evidence.
     • §904.03 Although relevant, evidence may be excluded if its probative value is
        substantially outweighed by the danger of unfair prejudice, confusion of the issues
        or misleading the jury by … undue delay, waste of time ….
NOTE – These standards may be unique to WI case law. If these standards are not
applicable case authority in other jurisdictions then Edmunds arguable has no
precedential value outside that state, and should not even be considered persuasive
authority. This fact is independent of the other problems with this decision as outlined
above

Testimony of Dr. Patrick Barnes
State of WI v. Edmunds
Motion for New Trial
January 2008

WI v. Edmunds (2008) [Barnes]
•EBM and medical literature no longer supports the state’s theory of SBS at trial



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•Triad no longer specific
•In 1996 he would have testified like State’s experts
•Can’t say SDH is from trauma on radiology
•SDH could be from infection or thrombosis
•There’s no current scientific- based literature that supports   shaking-only to produces this
type of injury
•BUT THERE’S EVIDENCE OF IMPACT!!!

“Other than the clinical studies, particularly prior to 1998 that never provided a scientific
basis based upon methodology, if one looks at the neuropathology literature and the
biomechanical literature, there are no studies that substantiate that shaking, shaking only,
can produce the type of brain injury and the triad that we see in this particular child.”
(P.30) [This testimony is arguably irrelevant and misleading given fact there is evidence
of blunt impact trauma to victim’s head].

Could hypoxia ischemia cause interhemispheric SDH and severe edema? “Certainly, the
swelling is caused because the cells of the brain require oxygen… so the cell… will
undergo injury, the cell will break down, water collects within it, and eventually that cell
and many others like it will burst and the edema will spread. Also the blood vessels are
lined by cells. Those cells get injured, too. And particularly, in a young infant who has a
very thin wall of blood vessels as opposed to an adult, those will leak blood.” (P.44)
[Barnes is restating the discredited “unified hypothesis” claims of Geddes even though
she self repudiated this research three years earlier. Even if he relies on republished
claims of Cohen & Scheimberg in 2008 these assertions are widely discredited.
Additionally, the Cohen & Scheimberg article was not accepted for publication until 9
months after Barnes testifies in Edmunds. See also Greeley response to Barnes
“Choking” article 2011 discussing absence of medical support for “Hypoxia” induced
SDH]

“There are some areas that have hemorrhage close to the brain, on the surface of the
brain. Could that be a contusion? Possible, I can’t differentiate that from other causes of
it. That includes bleeding in the brain from hypoxia ischemia, so we’d still tell them … to
work up trauma here, and you have to consider strangulation, suffocation, all of those
things…” (P. 45-46) [By restating the “hypoxia” induced SDH claim it is clear that
Barnes is advocating this alternative theory proposed and self repudiated by Geddes]

 “There is hardly anything not palpably absurd on its face that cannot now be proved by
some so-called expert.”
Chaulk v. Volkswagen of Am. Inc.., 808 F.2d 639, 644 (7th Cir.. 1986)

Grant v. Warden (CT) 2008, 2008 Conn. LEXIS 1402
•Similar challenge to SBS conviction
•Court refuses to follow Edmunds
•“The Edmunds case presents a potential quagmire of epic proportions: the strong
likelihood of constant renewed prosecution and relitigation of criminal charges as expert




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opinion changes and/or evolves over time… the strong interest in the finality of
judgments is significantly undermined by reasoning employed by the Edmunds court.”

Grant v. Warden (CT) 2008
•Ineffective assistance of counsel claims
•D convicted of reckless manslaughter of 4-mo-old she served as caretaker for
•Critical trial issue was timing of injury & who caused
–Lucid interval claim by D & defense expert
–State’s experts testify immediate symptoms
•Multiple changing hx’s by D & delay in seeking emergency care for critical infant
•D trained in emergency care

Grant v. Warden (CT) 2008
•Bilateral RH’s and retinoschesis; SDH; severe edema with loss of gray-white
differentiation; 5 metaphyseal fx’s to legs & acromion fx
•State’s experts opine shaking with possible impact on soft surface; no impact evidence
•Defense expert says won’t see edema on CT for at least 12 hours from shaking but could
with impact

Grant v. Warden (CT) 2008
•Multiple ineffective assistance claims
•Should have challenged SBS; used articles
•Should have hired Woodward experts
•Should have hired medical experts with specialization in FP, biomech
•D’s atty consulted with doctor who agreed with State’s experts; he doesn’t testify
•PCR atty calls another defense atty to critique trial counsel
•Potpourri of defense experts at PCR

Grant v. Warden (CT) 2008
•Chris Van Ee – biomechanician
•Single episode shake not cause SDH, need impact, reliance on Duhaime 1987
•Uses Plunkett 2001 to claim lucid interval
•On cross concedes unaware of D’s changing stories, had not reviewed autopsy pictures,
limitations to Duhaime study, did not try to account for fx’s to infant

Grant v. Warden (CT) 2008
•Dr. Roger McClendon – Neuropathologist
•Baby died of DIC from head trauma, impact injury to head, lucid period, loss of
autoregulation leading to edema
•Agreed with State’s experts head trauma
•Claims lack of DAI; fx’s older, no hems
•Cites Aoki & Masuzawa for lucid interval
•SDH disrupted autoregulation, heart shunted blood to eye, RH’s from pressure increase
in eye

Grant v. Warden (CT) 2008


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•Original  ME testifies in rebuttal
– Affirms trial testimony
– No DIC b/c no hems other organs including brain & clotting in hems in spine;
–DAI can be missed b/c of severe edema and time on respirator distorting findings
– Absence of hem’s at fx may be due to size of fx, degree separation & avascular nature
of fx sites

Grant v. Warden (CT) 2008
•Dr. Spivack also testifies in rebuttal
•SDH shows rotation; Gennarelli et al 1972
•RH’s rarely seen in accidents
•Immediate symptoms per Willman 1997
•Impact can’t be ruled out, soft surface or in act of shaking; Cory & Jones 1993
•Duhaime 1987 critiqued on methodology & Duhaime 1998 concedes shaking alone is
still debated
•Aoki article widely critiqued

Aoki & Masuzawa (1984)
•Falls involving 26 Japanese infants 3-13 months with SDH & RH
•Authors conclude that children could sustain these injuries accidentally from falls on
padded tatami mats
•Cultural bias, authors assume no abusive shaking
•WISQARS database shows Asian children no more prone to deaths from falls than other
kids

Howard, Bell & Utley (1993)
•28 cases of children with SDH
•Incidence Caucasians 21%, non-Caucasians 67%
•“In western countries a SDH and papillodema in an infant without external signs of head
injury are considered findings highly suggestive of NAI by violent shaking.”
(Introduction)
•Short falls history in 14 cases and no history in 6
•9 deaths, mortality rate 32%
•Eye exams in 20, RH seen in 11
•Authors conclude there is race dependent pathophysiology for SDH with higher
incidence for non-Caucasian babies

Grant v. Warden (CT) 2008
•CT Sup. Ct. ruled SBS met Frye in 1988
•Court rejects claims no science behind SBS and other aspects of expert testimony at trial
including forces & timing
•Notes no trial expert ruled out possibility of impact combined with shaking; defense
experts claims impact needed not change
•Court notes critiques of articles relied on by defense, contrary literature




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Grant v. Warden (CT) 2008
•Implications & issues
•Good experts involved & good evidence adduced by prosecution
•Reliance on good literature and critique of bad; explanation of limitations
•Court gets it
•Mechanism not limited to shaking
•Non-medical evidence critical
•Very good investigation

Insulating Your AHT Case
4. Make good records in court proceedings
•It lasts forever & controls future review
•Ask the right kinds of questions
•Anticipate future legal issues
•Difficulties with mens rea

State v. Schoonmaker (NM 2008)
•1-month-old baby born 5 weeks premature left in D’s care at grandmother’s house
•D is 18 and mom’s BF
•D tells GM baby rolled off couch while he is upstairs getting medicine for baby
•GM sees baby is pale, limp, “just staring” & has vomited
•Baby transported to hospital where he has severe SDH, old SDH, RH’s, brain injury,
blindness & severe developmental delays

State v. Schoonmaker (NM 2008)
•Defendant repeatedly tells family members and police child fell off couch
•Doctors diagnose SBS as exclusive mechanism
•D makes statement to mother that he shook baby “to revive” after fall from couch but
mother recants at trial
•D also claims he shook baby in car seat to “keep awake” en route to hospital thinking
child had a concussion

State v. Schoonmaker (NM 2008)
•D’s family retains private attorney (PA)
•PA can’t secure funds to hire expert or pay fees to speak with prosecution experts prior
to trial
•PA moves to withdraw so D can be appointed PD and get state funds for experts; trial
court denies
•PA given ½ hour to talk with prosecution experts before trial
•No defense expert

State v. Schoonmaker (NM 2008)
•D convicted of lesser charge
•Ineffective assistance of counsel claim raised on direct appeal for failure to retain expert
•Court notes no eyewitness to shaking and no external evidence of shaking such ass grip
marks or neck injury



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•Apparent from opinion PA raised birth related injuries & “rebleed” defense & DA
responded with comments re no expert

State v. Schoonmaker (NM 2008)
•Court frames issue as “was it violent shaking or was it a fall from a couch combined
with problems associated with [V’s] premature birth?”
•“There were no witnesses to the events… and there was little in the way of
circumstantial evidence demonstrating that D had violently shaken the baby.”
•“Thus the case hinged on whether the jury believed the D’s story.”

State v. Schoonmaker (NM 2008)
•“When a case hinges all-but-entirely on whom to believe, an expert’s interpretation of
relevant physical evidence, (or the lack of it) is the sort of neutral, disinterested testimony
that may well tip the scales and sway the fact finder.” Pavel v. Hollins, 261 F.3d 210 (2d
Cir. 2001)

State v. Schoonmaker (NM 2008)
•“Expert testimony was critical to the defense to call into question the state’s expert
testimony that [V’s] injuries could only have been caused by shaking of violent nature.”
citing Gersten v. Senkowski, 299 F.Supp.2d 84 (E.D.N.Y. 2004)(which is a case dealing
with sexual abuse not abusive head trauma)

State v. Schoonmaker (NM 2008)
•“Defendant who was convicted of murder of a child who died from injuries sustained
when D allegedly shook him as a baby was prejudiced by his counsel’s failure to obtain a
qualified expert to give an independent interpretation of CT scans of child victim.” citing
State v. Hales, 152 P.3d 321 (Utah 2007)

State v. Schoonmaker (NM 2008)
•“The State does not dispute, nor does the record demonstrate that it ever disputed the
necessity of expert testimony to the defense. Nor does the State challenge… D’s assertion
that disagreement exists in the medical community as to the amount of time between
when the injuries occur and when the child becomes symptomatic, and whether injuries
like [V’s] can be caused by short distance falls, particularly in light of [V’s] medical
history.”

State v. Schoonmaker (NM 2008)
•“Such disagreement is demonstrated by testimony of defense experts in other similar
cases as well as medical literature.”
•Cites Nashelsky & Dix (1995)
•Plunkett fall study (2001)
•LeFanu & Edwards-Brown (2004) “Patterns & Presentations of the SBS: Subdural and
Retinal Hemorrhages are Not Necessarily Signs of Abuse” BMJ

State v. Schoonmaker (NM 2008) (Issues)
•No one comments about physical impossibility of D’s claim that V rolled off couch




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•False hx should be component of diagnosis not basis for false defense with expert
•Of course you can find defense experts to challenge anything – we should invite these
false claims through public funding
•Reliance on irrelevant medical literature, actual studies do not support the claims raised
•Prosecutors vigorously challenging garbage claims by defense?
• According to personal communication with one of the prosecutors involved in the case
they did vigorously challenge these claims and the court did not “get it”

Misuses of Medical Research
    Talk, deteriorate and die (lucid interval)
    Nashelsky & Dix (1995) suggest medical proof insufficient at present to support
      lucid interval claim
    Plunkett (2001) suggests lucid interval in 12 cases (less than 1 hour in all but 4,
      most under 15 minutes, no cases involve infants)
    Some literature supporting with older children but distinguishable from infants
      with abusive head trauma
    Willman et al. (1997), Starling et al. (1995), Starling et al. (2004), Lyon, Gilles &
      Cory (1996); Duhaime et al. (1998), Case (1998) & Gilliland (1997), Case et al.
      (2001) document children are symptomatic immediately
    But see Laskey, et al., (2004) noting that many children have findings of
      traumatic brain injury but are not symptomatic and may not be diagnosed.

Insulating Your AHT Case
5. Exercise caution in indictments
•Don’t confine allegation to shaking
•Alternative methods of committing
•May confine expert proof at trial or create a variance
•Charge out prior injury if possible
•Consider alternative allegation of neglect
•Consider charge for delay in seeking medical attention

Comm. of KY v. Davis 2006 (Issues)
  • Admissibility of expert medical proof that shaking infants can cause RH & SDH
  • Whether SBS meets Daubert criteria
  • Admissibility of medical proof that victim’s injuries are consistent with SBS
  • Admissibility of medical proof that SDH & RH can only be caused by manual
      shaking
  • Admissibility of medical proof that symptoms of SDH & RH would be
      immediately apparent

CRITERIA UNDER DAUBERT
  • Whether the theory or technique can be or has been tested.
  • Whether the theory or technique has been subjected to peer review or has been
     published.
  • Whether the theory or technique has a known or potential rate of error and what it
     is.


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    •   The existence and maintenance of standards controlling the technique’s operation.
    •   Whether the theory or technique is generally accepted in the relevant scientific
        community.

Comm. of KY v. Davis (Uscinski testimony)
•Uscinski only witness for defense
•Critiques Caffey (1974) & Guthkelch (1971) as hypotheses that are unproven,
incomplete and circumstantial, & unscientific
•References Bandak (2005) & Duhaime (1987) and his own papers
•Ommaya’s research misused by abuse doc’s – can’t extend impact curve to predict
injury to infants & there could have been impact in his study and one whiplash different
than shaking

Comm. of KY v. Davis (Uscinski testimony)
“He began to survey the different medical publications that existed on the subject of SBS.
His study of the subject combined with his clinical practice led him to the conclusion
based upon his training, education and experience, and within a reasonable degree of
medical probability, there is insufficient proof in the medical community that human
beings can generate the required rotational acceleration by manual shaking necessary to
cause an injury to a small child or infant resulting in a SDH and/or retinal bleeding unless
there is an impact of the head with another surface. Dr. Uscinski opined that based upon
the research conducted and reported so far, impact is necessary to generate adequate force
to cause the injuries previously mentioned.”

Comm. of KY v. Davis (Uscinski testimony)
“Dr. Uscinski explained that a blow to the head causes an acute hematoma with
symptoms that manifest themselves immediately after the injury. A chronic hematoma
shows up weeks or months after the injury that often times seems to be insignificant.
There are no immediate symptoms and retinal hemorrhaging… is a marker of the chronic
hematoma.”
“Based upon his own experience the SDH can actually cause RH, and his opinion is
currently finding confirmation based on studies conducted by Japanese researchers.”

Comm. of KY v. Davis (Uscinski testimony)
“Trivial head impact after a fall of as little as 3 feet results in the same impact as hitting a
hard surface at 9 miles/hour which is more than twice that necessary to fx the skull of an
infant… What seems like trivial head impacts for an infant, like falling off of a bed or out
of a chair, may result in chronic SDH manifesting itself much later…. We should not
jump to the conclusion that there has been parental shaking.”

Comm. of KY v. Davis (Uscinski testimony)
“For an infant presenting with ostensibly unexplained intracranial bleeding with or
without external evidence of injury under given circumstances, accidental injury from a
seemingly innocuous fall, perhaps even a remote one, or even an occult birth injury, must
be considered before assuming intentional injury.” Neuro Med Chir (Tokyo) Shaken




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Baby Syndrome: An Odyssey, (Ronald H. Uscinski) 46, 57-61, 2006. (Defendant’s
Exhibit #4)

Comm. of KY v. Davis (Trial Ct Opinion)
•“The defendant alleges that the child’s medical records indicate that the only significant
injury for the victim was a SDH & RH and there was no significant bruising, fx’s or
evidence of impact. The Commonwealth’s case is based upon the theory of SBS…”
•“We begin our Daubert analysis with whether the theory of SBS can and has been tested.
Most of the studies that have conducted thus far are not conclusive that SBS is caused by
shaking the baby.” (No references listed, but Guthkelch, Caffey, Ommaya, Duhaime &
Bandak discussed)

Comm. of KY v. Davis (Trial Ct Opinion)
•“Much of the testing leads one to the conclusion that the baby must experience a blunt
head trauma in order to injure the child to the point it has a SDH & bilateral retinal
bleeding. But blunt head trauma does not always have to leave a mark such as a bruise or
other injury. Further research must be conducted in the area of biomechanics of babies.”

Comm. of KY v. Davis (Trial Ct Opinion)
•“Dr. Spivack testified that ‘RH’s also seem to have a much stronger correlation with
AHT than with unintentional trauma, even when the unintentional trauma is severe’.”
•“A correlation in mathematics does not imply cause and effect.”
•“For example, the amount of beer consumption and teacher salaries have a positive
correlation… Does that meant that to raise teacher’s salaries, we must increase beer
drinking? Certainly not!”

Comm. of KY v. Davis (Trial Ct Opinion)
•“When Dr. Spivack observed that there was a stronger correlation between RH with
AHT and with unintentional trauma,… that does not mean that every time a doctor
observes RH that abuse has occur. It may be that RH is caused by something else. In fact
that is exactly what Dr. Uscinski pointed out. He said there is increasing evidence from
studies being conducted in Japan that the RH’s are the result of the SDH blood flowing
through paths that were previously unknown.”

Comm. of KY v. Davis (Trial Ct Opinion)
•Doctors use SDH & bilateral RH as criteria for diagnosing SBS
•“These classical markers of diagnosing an infant brain are certainly in the realm of the
physician’s duties. However, the diagnosis presupposes the cause. The physician is
diagnosing the legal conclusion that someone has battered this child even without
manifest signs of bruising, broken bones, or other evidence. The diagnosis is based
upon…research that is ongoing yet not conclusive.”

Comm. of KY v. Davis (Trial Ct Opinion)
•“The best the Court can conclude is that the theory of SBS is currently being tested, yet
the theory has not reached acceptance in the scientific community. The theory of SBS




                                                                                            14
may be accepted in the clinical medical community, but it could be based on flawed
studies and concepts that are currently being tested and retested.”
•“The peer review through publication has reached only the conclusion that additional
testing must be accomplished before physicians obtain the actual reasons for the observed
SDH & RH absent any manifest injuries such as bruising and broken bones.”

Comm. of KY v. Davis (Trial Ct Opinion)
•“In fact the most damning studies supporting SBS are the ones that failed to follow the
scientific method. The more recent studies appear to utilize a more scientific
methodology to their research, but their preliminary conclusions appear to support the
conclusion that the SDH and bilateral occular bleeding are not caused by shaking alone
but require blunt force impact.”

Comm. of KY v. Davis (Trial Ct Opinion)
•“Physicians routinely diagnose SBS and that has gained wide or general acceptance in
the clinical medical community… however this is based on inconclusive research in the
scientific research community.”
•“The Court can only conclude that SBS has not gained wide or general acceptance in the
scientific community for the purpose of allowing an expert to testify that a baby has been
subjected to abuse when the baby exhibits a SDH, bilateral RH, with no other manifest
injuries such as bruising, broken bones, etc.”

Comm. of KY v. Davis (Comments)
•Not precedent – trial court opinion not appellate
•Getting wide distribution by defense via internet and incorporation of trial court ruling
into defense motions and briefs
•Expect even more defense pretrial challenges spurred by this win
•Opinion poorly written – misspelling, misquotes, paragraphs out of order, etc.
•Opinion does not reflect complete evidence presented at hearing or in case
•Court has no clue what a medical “correlation” means in terms of medical diagnosis
process, & more importantly in terms of “alternative explanations”

Comm. of KY v. Davis (Comments)
•Court does not have an understanding of the diagnostic process – it’s not just presence of
RH & SDH that prompts diagnosis, it is primary brain injury, exclusion of other causes,
and a history that does not account for the findings
•Issues framed by court are inconsistent with real issues in case and actual medical
findings
•No discussion by Court of extensive literature since early 1970’s
•References to articles as “studies” when they are actually commentary on other
research/articles

Comm. of KY v. Davis (Comments)
•Court willing to rely on unpublished data, anecdotal claims and severely critiqued
studies as basis for saying the science is uncertain
•No scientific references to many of the conclusions and comments the Court makes




                                                                                             15
•Reference to Japanese research suggesting SDH “blood flowing through paths
previously unknown” to cause RH is baffling – have we just missed it all these years or
are Japanese kids physiologically different than other nationalities?
•ME’s do get to call findings “homicides” & doctors get to call cases abuse

Comm. of KY v. Davis (Comments)
•Court completely ignores Dr. Spivack’s reference to Hetler & Greenes (2003) and any
consideration of history and investigation
•None of the biomechanics literature deals with RH findings
•There is no mention in opinion of any literature involving admissions of shaking by
caretakers and relationship to typical findings in SBS
•No reference to prior legal precedent over last 30 years admitting medical testimony of
SBS

Comm. of KY v. Davis (2008 Appellate Decision)
•Court of App.’s reverses trial court 2 years later
•Extensive discussion of expert’s testimony
•More balanced presentation of evidence & science
•Soft impact theory proffered by State in brief
•Cory & Jones acknowledged in FN for point that shaking may involve impact
•Trial court abused discretion by weighing between conflicting expert opinions & placing
more weight on “scientific” vs. “clinical” studies
•Can’t do “scientific” research on living kids

Comm. of KY v. Davis (2008 Appellate Decision)
•Daubert designed to exclude pseudoscientifc or junk science evidence that can’t be
legitimately challenged in a courtroom
•State’s expert testimony even with flaws does not fall in this category
•Clinical studies & “correlations” integral part of medical research, not unreliable or
inadmissible
•Jury can evaluate this type of evidence through vigorous cross-examination
•Uscinski is given equal credit in opinion – jury question to determine which expert to
believe

“The law extends equal dignity to the opinions of charlatans and Nobel Prize winners.”
Donald Elliot
Yale Law Professor

Insulating Your AHT Case
6. Aggressively confront Daubert challenges to diagnosis of AHT
• Use exceptional experts
• Recognize enormous potential for adverse precedent
• Edmunds now cited as precedent in defense briefs
• Numerous patently false assertions typically asserted in defense briefs and defense
expert witness testimony




                                                                                          16
•Consider ethical considerations in responding to defense filings that demonstrate
reckless disregard for truth, failure to cite adverse precedent, etc.

Tenn. v. Hanson (2007 App.)
•7-week-old child with multiple metaphyseal fx’s to legs and 10 older rib fx’s, no RH’s
or SDH
•Multiple doctors examine testify to NAT
•Doctor says metaphyseal fx’s diagnostic of abuse and rib fx’s highly suspicious, violent
shaking, jerking or twisting described as mechanism for leg fx’s & forcible squeezing for
ribs
•Pain associated with these but adult may not appreciate fx’s caused; legs noted very
sensitive
•Multiple false hx’s commented on by doctors
•Jury convicts on leg fx’s but not rib fx’s

Tenn. v. Hanson (2007 App.)
•CCA reverses holding insufficient proof to establish D knowingly abused infant
•State presented no proof other than D’s explanation he fell with infant while walking on
stairs to show knowing abusive conduct
•Proof of severe pain sufficient to establish SBI
•Ignores false hx information & inference of guilt
•Ignores description of forces involved
•Demonstrations of forces now admissible?
•A few questions more to establish mens rea & SBI
•TN Supreme Court reverses in 2008 & reinstates conviction rejecting CCA’s lack of
sufficiency determination but does not chastise poor reasoning by CCA


Insulating Your AHT Case
7. Frame the debate on your terms not those established by the defenses
•AHT vs. SBS vs. shaken impact
•Abuse vs. neglect vs. combination
•Adequate laws to apply to unique cases
•Mens rea issues
•Appropriate murder & SBI statutes

State v. Maze PCR 2008
•3-mo-old baby shaken by father during 20 minute time period
•SDH, RH’s, brain contusion, midline shift, acromion fx, abdominal & finger bruises
•Inconsistent hx’s, later admits shaking
•Vaccine defense attempted at trial; no defense expert
•Conviction for agg. child abuse; 21 years
•Conviction reversed faulty JI’s

SBSDefense.com




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An epidemic of so called "Shaken Baby Syndrome" is sweeping the world. Our doctors
and public officials are jumping to conclusions about child abuse that are causing parents
to be wrongly accused and convicted of harming their children…a staggering number of
these cases are clearly not abuse at all. Ours is one such case. We have done countless
hours of research on shaken baby syndrome and vaccine damage in a desperate attempt to
prove our innocence.
Medical experts, after having reviewed all the state's evidence, have been able to
determine that our son had a brain bleed shortly after birth. This was then exacerbated by
the hepatitis B vaccine he was given at 9 days & at 4 weeks old… We feel very strongly
that the medical community failed our son.
Thanks to Dr. Viera Scheibner, Dr. Harold Buttram & Toni Blake

State v. Maze PCR 2008
•Baby dies while case on appeal
•D charged with felony murder; retried
•Toni Blake consultant for defense
•Defense experts challenge COD, not AHT
•Last minute attempt to use Dr. Yazbach as expert on vaccine defense rejected
•D convicted of felony murder, life sentence
•Appeal denied but error to bar expert
•Post conviction filed 2007

State v. Maze PCR 2008
•Defense files notice of 3 experts
–Dr. Patrick Barnes
–Dr. Shaku Teas (not testify)
–Dr. Edward Yazbach
•Multiple alternative, inconsistent theories
•Defense attorney indicates he consulted expert who agreed with State’s experts
•Yazbach testifies and says no evidence to support vaccine defense

Testimony of Dr. Patrick Barnes – Maze
•No radiologic findings diagnostic of AHT
•Science behind AHT does not meet criteria for evidence based medicine
•Can’t shake children hard enough to cause SBS
•No neck injuries relying on Bandak 2005
•Increased ICP accounts for RH’s
•Child did not have clavicle fx – it’s a vein
•Will only look at radiology images, improper to consider history

In medicine one must pay attention not to plausible theorizing, but to experience and
reason together.
Hippocrates, Precepts

State v. Davis PCR 2008



                                                                                        18
•9-mo-old   baby with AHT, multiple impacts established by 3 separate complex skull fx’s,
multiple abrasions/contusions
•Initial denial, later admits dropping
•Scene alteration
                                     th
•Defense expert at first trial took 5 during cross, despite this hung jury
•Convicted on retrial no defense expert
•PCR claim should have had expert
• Dr. Janice Ophoven used to support PCR for defense, files affidavit and testifies

Dr. Janice Ophoven – Nashville 2008
•No findings diagnostic of AHT
•Science behind AHT does not meet criteria for evidence based medicine
•Testimony of State’s experts deviated from science to an extreme degree
•Falls of 1 foot onto concrete can generate lethal forces
•Child could sustain worse fractures without loss of consciousness

Dr. Janice Ophoven – Nashville 2008
•Child did not have other abuse injuries
•“Most likely” explanation for multiple complex skull fractures was short fall
•Child did not have acute eye abrasion – it’s an infection
•Child did not have acute frenulum tear – old
•I won’t evaluate credibility of history – that’s function of jury

In her opinion letter Dr. Ophoven states that “experience tells us that complex fractures
of the sort seen in this case can be the result of a single impact.” During her testimony at
the hearing Dr. Ophoven expanded on such claims testifying during direct examination
that Caine’s multiple complex fractures were “most likely” the result of a single impact
from a short distance fall and proffering this opinion to “a reasonable degree of medical
certainty.”

Dr. Ophoven did not provides a single medical citation in support of these claims. The
absence of such support is telling. It suggests that her opinion is connected to the existing
data only through the “ipse dixit” of the expert and therefore fails legal standards for
reliability. More significantly, it is directly contrary to her own writings which state the
opposite conclusion.

On page 769 of her book chapter there is a discussion of fall injuries where the following
information appears:
“Falls from furniture, dropped infants, or falls with infants are frequently reported as the
cause of head trauma in childhood. Accidental falls and drops from relatively short
vertical distances can produce skull fracture and even brain injury. When fractures occur
they are often simple linear fractures without associated neurologic severe symptoms,
complications or sequelae. Fractures of the skull in young children that are more
extensive or complex and involve brain injury and/or neurologic symptoms and sequelae
should be investigated for abuse.” (footnotes omitted).




                                                                                          19
This paragraph is quoted in full because it is glaringly at odds with Dr. Ophoven’s
opinion letter and testimony.

Failure to accept a large and consistent body of scientific evidence over unvalidated
personal observation may be described as a normal human failing or, in the case of
professionals who identify themselves as scientific, plainly irrational
Dawes R et al, Clinical vs Actuarial Judgement.
Science 1989;243:1668-1674

Insulating Your AHT Case
8. Vigorous cross-examination of defense experts
•Preparation like no other
•Share resources
•Daubert challenges to limit & exclude unreliable data & claims
•Expose the BS
• Considerations of “denial of defense” and due process

News Flash – Not all experts who come to court will have integrity

There are three kinds of liars: Liars, Damn Liars and Experts.

Giminez Writ – Innocence Project (2009)
• Defense assertion – “The new consensus (majority) opinion of forensic pathologists is
that there can be no valid SBS diagnosis without impact to head.”
• Cite to single authority - Goudge report
• No such “consensus” exists
• Multiple ME studies establish fatal injuries in absence of evidence of impact
• Impact involved in shaking mechanism

Giminez Writ – Innocence Project (2009)
• Defense assertion – Dr. Alexander shook a doll in front of the jury and represented this
demonstrated the type of shaking necessary to cause SBS injuries.
• Cites to cases overturning convictions based on similar demonstrations including one
with Dr. Alexander
• Numerous cases to contrary not cited

Giminez Writ – Innocence Project (2009)
• Defense assertion – “When asked about the cause of a torn frenulum Dr. Alexander
stated ‘typically it’s diagnostic for child abuse… when … [an] object is being forced into
the baby’s mouth.”
• Defense attaches declaration from doctor claiming cause likely from intubation
procedures
• No reference to massive authority supporting Dr. Alexander’s testimony
• No evidence from EMT’s to support
Giminez Writ – Innocence Project (2009)




                                                                                         20
• Defense assertion – Defense attaches declaration from Dr. Monson establishing “that
there is no data to support the theory that shaking alone is capable of causing [victim’s]
head injuries.”
• Letter from Dr. George Nichols “discussing the lack of scientific evidence to support
SBS diagnosis in absence of impact”
• No disclaimers re biomech literature
• No references to 500 (+) articles to contrary

Giminez Writ – Court Ruling (2010)
• “A criminal judgment may be collaterally attacked on habeas corpus on the basis of
newly discovered evidence if such evidence casts ‘fundamental doubt on the accuracy
and reliability of the proceedings. At the guilt phase, such evidence, if credited, must
undermine the entire prosecution case and point unerringly to innocence or reduced
culpability.’… Newly discovered evidence does not warrant relief unless it is of such a
character ‘as will completely undermine the entire structure of the case upon which the
prosecution was based.’ If ‘a reasonable jury could have rejected’ the evidence presented,
a petitioner has not satisfied this burden.” Citing legal authorities
• “Normally if evidence can be discovered by diligent investigation before trial, it is not
newly discovered evidence.”

Giminez Writ – Court Ruling (2010)
• “Petitioner’s new evidence regarding SBS theory of injury in the absence of trauma
demonstrates the existence of an ongoing debate, not that the entire theory has been
refuted or deemed uniformly unreliable. Evidence of this debate in the field does not
undermine the entire prosecution case or point unerringly to innocence; evidence of a
debate, including studies in the field of biomechanics, is not conclusive on whether or not
the underlying subject of debate is still valid. It is just evidence that a debate wages.”

Giminez Writ – Court Ruling (2010)
• “The existence of differing opinions on the subject does not cast fundamental doubt on
the reliability and accuracy of the prosecution case against the Petitioner. While evidence
of this debate might possibly have posed a more difficult question for the jury, it would
by no measure prevent the jury from reaching the same conclusion reached in this case.”

Giminez Writ – Court Ruling (2010)
• “Moreover, the evidence is not entirely new in Petitioner’s case. During trial, the issue
of whether Priscilla’s head injuries could have been inflicted by shaking alone was
challenged by the defense. Dr. Alexander was asked on cross-examination whether
shaking would produce some signs of injury or trauma or stretching in the neck muscles.
He responded that neck injuries are not a necessary result of shaking in infants and that
he had never seen a case of SBS in infants that involved neck injuries.”

Giminez Writ – Court Ruling (2010)
• “Regarding Petitioner’s claims that the new evidence reveals the true cause of Priscilla’s
death: birth injury consisting of bleeding in the brain that progressed unchecked and
culminated in a fatal brain clot, Petitioner presented this theory of injury and death to the


                                                                                             21
jury at the time of his trial… Thus Petitioner’s expert’s opinions presented in the petition
on this point are merely cumulative to the evidence that was already presented to the jury
at trial”

Giminez Writ – Court Ruling (2010)
• “The same is true with regard to ‘new evidence’ of: … gastroesophogeal reflux and
breathing complications that could result there from… the claim that Priscilla’s rib was
fractured at birth,… the claim Priscilla was anemic… suffered coagulation disorders.”
• “The introduction of another alternative innocent explanation or another expert opinion
concerning the torn frenulum does not fall within the meaning of ‘new evidence’ which
may tend to prove Petitioner’s innocence.”

Giminez Writ – Observations
• Court “gets it” in terms of understanding medical evidence presented
• Careful comparison between trial testimony and “new evidence” claims
• Vastly different assessment of “new evidence” claims than Edmunds opinion
• Opinion does not call into question reliability of defense expert’s testimony despite
ridiculous assertions advanced
• What result if defense at trial did not challenge using so many alternative theories?

A Call to Arms
The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts
Professor Deborah Tuerkheimer
Washington Univ. Law Review
Vol. 87 (1), (2009)
Quotes from The Next Innocence Project
• SBS is, in essence, a medical diagnosis of murder, one based solely on the presence of a
diagnostic triad, retinal bleeding, bleeding in the protective layer of the brain, and brain
swelling.
• New scientific research has cast doubt on the forensic significance of this triad, thereby
undermining the foundations of thousands of SBS convictions.

Quotes from The Next Innocence Project
• This Article identifies a criminal justice crisis and begins a conversation about its proper
resolution.
• In its classic formulation, SBS comes as close as one could imagine to a medical
diagnosis of murder.
• This Article explores what ensues when medical certainty underlying science-based
prosecution dissipates.

Quotes from The Next Innocence Project
• A critical look at the creation of SBS exposes a diagnosis flawed from its inception by a
tainted methodological approach, one, in all likelihood, corrupted by a too-close medical-
legal nexus.
• Part III. Scientific Evolution: . . .the scientific underpinnings of SBS have crumbled
over the past decade. . .



                                                                                           22
Quotes from The Next Innocence Project
• There is “now general agreement among the medical community that the previous
incantation of shaken baby syndrome is invalid.”
• Many SBS diagnoses “rest on outmoded medical dogma.”
• The “injustice” of this “problematic category of SBS convictions… is commensurate
with any yet seen in the criminal justice arena” and “a problem of tragic dimensions.”
• “Guilt is being assigned where the best available science creates at the very least
reasonable doubt.”

Quotes from The Next Innocence Project
•“[A]s a categorical matter, the science of SBS can no longer support a finding of proof
beyond a reasonable doubt in triad-only cases – cases which represent a significant
number of SBS prosecutions.”

Concepts from Article
•Flawed Science
•Shifted Consensus
•The Myth of Pathognomony
•Lucid Intervals
•Removing the Shaking from the Syndrome
•And, “New scientific research,” – really?

The False Innocence Assertions
• Reliance on discredited sources
• Conceals contrary science
• Conceals contrary legal precedent
• Cites personal opinion as legal holdings
• Advocates a “new truth” while concealing real data
• Daubert “falsification” - not conflicting data
• Most cases involve “triad only” evidence

The False Innocence Assertions
• Prosecutions based on constellation of “triad” medical findings is a “paradigm” without
precedent
• Ignores legal precedent supporting convictions predicated on:
• False history as evidence of abuse
• Confessions as evidence of guilt
• Diagnostic specificity of medical findings in absence of experimental data

The False Innocence Assertions
• Cites two cases, Edmunds and AR v. Mitchell as examples of “triad only” convictions
• Both cases involve additional medical findings and significant additional factual
information
• Other cases referenced in footnotes demonstrate compelling circumstantial evidence of
guilt and “corroboration” for medical evidence



                                                                                           23
The False Innocence Assertions
    “Audrey Edmunds was granted a new trial on the basis of an evolution in scientific
thinking.”… “For the first time a court examining the foundation of shaken baby
syndrome (SBS) concluded that it had become sufficiently eroded that a new jury
probably would have a reasonable doubt as to the defendant’s guilt.”… “According to the
court, a ‘shift in mainstream medical opinion’ had undermined the basis of the SBS
diagnosis.”… “the science upon which the defendant’s conviction rested had advanced
raising the specter of innocence” and “the distinct possibility that Edmunds…. had done
nothing whatsoever to harm the child.”

The False Innocence Assertions
• Only italicized language comes from actual court opinion
• This quote merely restates proffered defense expert testimony not actual finding by
court
• Remainder is author’s editorial commentary which appears to state court’s actual
holding

The False Innocence Assertions
• EBM and biomechanical research cited as support for “undermining science”
• Neither meets Daubert reliability standards or falsifies SBS/AHT data
• EBM not applied to other medical diagnosis or expert testimony
• Biomechanics research uses unreliable methodology; conflicting data
• Single case research not satisfy Daubert




Insulating Your AHT Case
9. Know the medical literature
•Strengths & weaknesses
•Critiques of unreliable literature
•Understand limitations of “evidence based medicine”
•Understand realities of peer review process
•Competent journals
•Subscribe to Quarterly

Smith v. Mitchell (Habeas 9th Cir. 2006)
• 7-week-old baby shaken/impact by grandmother in 1996
• SDH/SAH (1-2 TBL volume), old SDH, optic nerve hem’s, no RH’s
• Acute small abrasion with bruise to upper neck region
• Less than 2 hour interval to death
• Grandmother admits to gentle shaking – jostling, demonstrated to CPS, not recorded;
also claimed fell from couch

Smith v. Mitchell (Habeas 9th Cir. 2006)
• ME & Dr. Chadwick testify COD was SBS that tore or sheared portions of brain stem




                                                                                        24
•No finding of brain stem damage at autopsy; no staining
•No evidence of severe swelling at autopsy
•Court notes no mass effect SDH and no RH; “no dispute that usual SBS occurs from
massive bleeding or swelling of brain tissue” that herniates brain stem controlling vital
functions

Smith v. Mitchell (Habeas 9th Cir. 2006)
• Court rules insufficient evidence of COD
• Absence of evidence of brain damage is absence of proof – can’t speculate in absence of
findings
• Experts testified brain stem findings not detectable; supported by lecture data and
consultations, no literature source
• Before BAPP techniques developed
• Brennan (2009) supports; Gill (2009) also

Smith v. Mitchell (Habeas 9th Cir. 2006)
• Court notes absence of evidence of bad character evidence; loving grandmother
• No evidence of bruising or fractures
• Comments original ME conducting first child autopsy
• Defense expert 5-8,000 autopsies; 50 infant
• Unclear how many involve AHT
• Defense expert – “it’s fantasy” to say AHT caused respiratory arrest, it could happen in
theory, no way to prove it, so “fantasy”

Smith v. Mitchell - Comments
                                                  th
• Court ruling in 2006 reversed by Sup. Ct. but 9 Cir. reaffirms in 2010; dogmatic
• If bad character evidence present – can’t admit to show conduct in conformance
• Evidence of old abuse present, can’t rule out grandmother as cause
• No comments on false explanation for accidental fall
• Court accepts shaking to revive versus attempts to minimize abusive shaking

Smith v. Mitchell - Comments
• “This is not the typical SBS case”
• What is the typical SBS case?
• “Grandmothers are not typical perps”
• This means they can’t be abusers?
• Absence of usual indicators of violent shaking such as bruises, fx’s, RH’s
• Fx’s and bruises present less than 50% of time so not “usual”, RH’s may be absent in
20% or more of cases

Smith v. Mitchell - Comments
• More experienced ME postulates COD is aggravation of preexisting brain injury
• Testimony by original ME & Chadwick is exactly correct but ahead of the science
• Absence of injury (e.g. RH, fx, bruising) does not equal absence of abuse
• Science that now supports can’t be used to uphold conviction or testimony
• Irony that “new science” affirms vs. challenges reliability of conviction




                                                                                            25
Smith v. Mitchell - Comments
• Court does not appreciate mechanisms for TBI – axonal damage vs. mass effect SDH
• Rapidity of death precludes many of the findings we might see
• Likelihood BAPP staining today would identify TBI is high
• Court misapplies legal requirement of interpreting evidence in light most favorable to
verdict
• No rationale jury could find guilt????

Geddes & Whitwell (2004) – Unified Hypothesis
Excerpts from Geddes Testimony 2005 in UK
•During cross accepted proposition that the “Unified Hypothesis” was never advanced
with a view to being proved in court – meant to stimulate debate
•“I think we may not have the theory quite right. I think possibly the emphasis on hypoxia
– no, I think more possibly we are looking at more at raised pressure being the critical
event.”

Excerpts from Geddes Testimony 2005
•When told that her paper was being quoted across country by defense as reason why
established theory of AHT was wrong she replied “That I am very sorry about. It is not
fact; it is hypothesis but, as I have already said, so is the traditional explanation. I would
be very unhappy to think that cases were being thrown out on the basis that my theory
was fact.”
British Court of Appeals Decision
•“In our judgment it follows that the unified hypothesis can no longer be regarded as a
credible or alternative cause of the triad of injuries.” (SDH, RH & Brain Swelling)

Despite this repudiation by Geddes a number of defense experts continue to cite her
theories both implicitly and explicitly without acknowledging this repudiation or other
professional critiques of her “unified hypothesis”

Insulating Your AHT Case
10. Ensure adequate medical evaluations
•Appropriate tests to refute common defense claims & alternative explanations
•Eliminate fanciful arguments created by failure to conduct tests
•Neuropathology in fatalities
•Neck & spine evaluation

Insulating Your AHT Case
11. Force defense experts to establish evidence base for alternative theories

Current Wave of Defense Arguments
•No scientific support for SBS
•Adults can’t shake children hard enough to injure; it’s impact that produces injury
•Confessions to contrary are false
•Violent shaking should cause severe neck injury but doesn’t



                                                                                             26
•Short falls do generate forces sufficient   to cause brain injury and death
•Rebleed from trivial trauma
•Lucid interval for lengthy time periods
•RH’s explained by increased ICP

Dashti (1999)
•405 head injured children 0-18, 99 < 2
•Inflicted injury in 38 (9%) determined by discrepant hx or other abusive injuries
•Abused kids 0-10 mos (median 5.5 mos)
•26 % had hx of short fall
•53% had RH’s (none in accident group)
•34% had skull fx; 10% EDH; 82% isolated head injuries; skeletal surveys negative
•63% SDH (only 7% in accident)

What is Evidence Base for Alternative
•SDH’s
•NAME (2001) – isolated SDH/SAH in accidents less than 2%; 90-98% in NAT
•Vinchon (2005) – 28% accident, 81% NAT
•Starling (2004) 100% in confession cases
•Vast body of fall literature where findings are virtually never present or isolated SDH
associated with linear fx

What is Evidence Base for Alternative
•RH’s
•Vinchon (2005) – 7% accident, 75% NAT
•Bechtel (2004), Duhaime (1992), Dashti (1999), & Levin all identify predictive value of
RH’s
•Starling (2004) 83% in confession cases
•Absence in documented fall cases

What is Evidence Base for Alternative
•Why do we not see RH’s in vast majority of kids with elevated ICP from known causes,
e.g. MVA’s, documented falls, illnesses?
•How cans defense claim that 70-95% presence of RH’s in NAT kids is not a diagnostic
criteria?
•How explain metaphyseal and rib fx’s

National Association of Medical Examiners Position Statement
•“Studies in children dying of accidental head injuries indicate that children with diffuse
injury show an immediate decrease in the level of consciousness.”
•“Symptoms experienced in these severely injured children include an immediate
decrease in the level of consciousness”

Lucid Intervals?
• Gilliand, J Forensic Sciences 1998
–Prospective, postmortem, 76 abused children

                                                                                           27
–Interval to “severe” symptoms was <24 hours
•“Itshould be noted that in all of the cases where information was supplied by someone
other than the perpetrator, the child was not normal during the interval.”
• Starling, 1995
–Admitted perpetrators of AHT
–36/37 relate symptoms were immediate
A person must be able to lift 2,200 pounds in order to inflict the type of injuries generally
attributed to SBS... “It is impossible to generate the prescribed forces (on the head) that
are dictated by SBS.”
Dr. Faris Bandak
Professor of Biomechanics
Testimony in OK 3-28-03 challenging scientific reliability of SBS
Medical doctors are ill-equipped to explain how such injuries occur. That is a matter for
biomechanical experts. “It’s a science versus suspicion type of thing.”
Dr. Faris Bandak
Professor of Biomechanics
Testimony in OK 3-28-03 challenging scientific reliability of SBS

Notwithstanding cases in which parents admit to shaking an infant, expertise in
biomechanics leads to the conclusion this did not occur. “It’s very conceivable that all
these doctors are wrong.”
Dr. Faris Bandak
Professor of Biomechanics
Testimony in OK 3-28-03 challenging scientific reliability of SBS

Dr. Ronald Uscinski
Neurosurgeon
George Washington Medical School
Just because SDH and RH are present in virtually all of the alleged shaken baby cases
studied does not validate the phenomenon, even when the parent has confessed to the
crime. “I don’t equate a confession in court with a medical reality.”

“… What you have just said is one of the most insanely idiotic things I’ve ever heard. At
no point in your rambling, incoherent response was there anything that could even be
considered a rational thought. Everyone in this room is now dumber for having listened
to it. I award you no points and may God have mercy on your soul.”
Order Denying Motion for Incomprehensibility Honorable Leif M. Clark, U.S.
Bankruptcy Court, In re Richard Willis King, 2-21-06

Perpetrator Admissions
Starling SP et al:
Analysis of perpetrator admissions to inflicted traumatic brain injury in children.
Arch Pediatr Adolesc Med 2004;158:454

Perpetrator Admissions


                                                                                           28
•Retrospective analysis of 453 cases of inflicted traumatic brain injury
•Suspected or admitted perpetrators were identified in 171 cases (38%)
•Authors compared 81 cases of admitted perpetration (A) to 90 cases in     which there was
no admission (NA)

Perpetrator Admissions
In the 81cases of admitted shaking (A):
    • All infants had intracranial bleeding
    • 83% had retinal hemorrhages
    • 15% had other abuse-related injuries
    • 19% died
    • 71% of survivors were impaired
    • 10% of survivors were normal at discharge

Perpetrator Admissions
Authors asked the perpetrators:
1. How soon after the injury did symptoms appear?
2. What did they actually do? (the mechanism of injury)

Perpetrator Admissions
In 57 of the 81 cases of admitted shaking, the time period between the assault and the
onset of symptoms could be ascertained:

–In 91%, the perpetrators said symptoms appeared “immediately” after the abuse
Perpetrator Admissions
•Commonest initial symptoms reported by perpetrators:
–Loss of muscle tone (“went limp”)-29
–Seizures – 25
–Vomiting – 24
–Lethargy- 23
–Apnea (stopped breathing) – 21
Perpetrator Admissions
•Seizures and lethargy were the most common symptoms noted by medical staff at time
of admission
•No significant differences seen between the symptoms reported by the perpetrators and
symptoms reported by medical staff

Perpetrator Admissions
• In 69 of the 81 cases, enough information was available to define mechanism
–20 admitted to impact without shaking
• In 17 of these, acute subdural hematoma was present
• In 14, retinal hemorrhages were present



                                                                                         29
•   8 had skull fractures
•   Additional 4 had scalp swelling

Perpetrator Admissions
• 32 admitted only to shaking
•Skull fractures seen in 2 cases
•Scalp swelling in 2 others
•Subdural hematomas present in 29
•Retinal hemorrhages were present in 27
•17 perpetrators admitted to both shaking and impact

Insulating Your AHT Case
12. Do reenactments
•Allows jury to see what defendant alleges
•Avoids Gaskell issue
•Violence speaks for itself
•In absence cross expert on suggestion you can shake with no damage

Example Donovan M. Head Injuries
•8-month-old male; 19 pounds
•Acute SDH - intraparenchymal right posterior parietal
•Old SDH - intraparenchymal right anterior frontoparietal
•Extensive RH’s in left eye
•Subconjunctival hem in right eye (hx of older hem same eye observed by pediatrician
month before)
•No skull fx
•Multiple bilateral rib fx’s in different stages of healing
                          th th    th     TH
•Healing fx’s of right 6 , 7 , 11 & 12 ribs posteriorly
                          th    th
•Healing fx’s of right 6 & 7 ribs laterally
                       th    th       TH
•Healing fx’s of left 9 , 10 & 12 ribs posteriorly
•Healing fx right acromion
•Corner fx left proximal femur
•Seven .5-1 cm circular bruises to sternum between nipples
•Multiple bruises on left knee
•Questionable bruise to anterior forehead
•No obvious signs of impact to head
•Perpetrator admits single episode of shaking
•Video demonstration as part of plea

Insulating Your AHT Case
13. Conduct good investigations
•Medical issues rarely dispositive
•Hx diagnostic component
•Demonstrates alternatives considered
•Good investigations control bad medicine
•Sets example of professionalism




                                                                                       30
Claims of Defense Experts
•Scientific research does not support the claims of proponents who diagnose SBS
•Biomechanical research clearly proves that adults cannot shake children hard enough to
cause these injuries
•Other medical explanations account for the child’s injuries
•Confessions of caretakers that they shook the child are not reliable

The DAUBERT Dichotomy
   • FRE designed to facilitate admission of novel forms of expert testimony.
   • Defense using Daubert to restrict/exclude well established expert testimony
      (medical evidence)
   • Aggressive use by defense
   • Failure to use by prosecution
   • Courts have poor understanding of science and application
   • Courts placed in gatekeeping role
   • Not applicable in all Ct’s – only states with FRE

Understanding DAUBERT
  • Not all criteria applicable to all cases, scientific disciplines or fields of study.
  • Absence of a factor does not mean exclusion – balancing test
  • Key issue is “reliability” of methodology not result or conclusions
  • Key issue is “evidentiary relevance”
  • Clinical methodology, case study methodology is not unreliable even though
      other experimental models exist
  • Universality of experience provides reliability

DAUBERT Dilemmas
  • Do courts have a role in telling doctors what information they can/can’t consider
    in forming their opinions?
  • Who appropriately sets diagnostic criteria
  • Do non-physician scientists establish criteria for physicians?
  • Courts role in deciding whether opinion is admissible or not
  • Courts role in deciding what information can be shared with jury
  • Rules of evidence permit opinions based on inadmissible evidence if reliable &
    used in field

DAUBERT Dilemmas
  • Evidence based medicine not same as Daubert criteria although some strong
    parallels
  • Absence of evidence does not equal absence of abuse (e.g. absence of fractures or
    bruising)
  • What is the relevant scientific community?
  • All physicians or just those dealing with AHT?
  • ME’s, Pediatrics, Neurology, Ophthalmology


                                                                                           31
   •    Biomechanics
   •    How much consensus is enough?

Expert Realities
   • Defense gets more breaks
   • State can’t appeal adverse rulings in many instances
   • Courtroom ill suited to determine scientific controversies
   • Fudging-fabricating by experts
   • Poorly informed judges
   • Poorly informed & prepared prosecutors
   • Bad precedent – it only takes one case to cause widespread catastrophe. HIGH
       STAKES

Expert Issues
 Reasonable degree of medical certainty does not equal absolute certainty
 Reasonable degree of medical certainty does not equal a remote medical possibility
 Non-medical information factors in to medical assessments, e.g. scene investigations,
false histories, perpetrator confessions
 Experience with non-abused children also factors into calculus
 Science relied on by defense fails to meet Daubert standards

Expert Issues
   • Exceptions don’t swallow the rule
   • Short falls rarely (not frequently) cause serious sequelae but it does happen
   • Just because there are alternative causes for findings does not mean there are
       alternative explanations
   • E.g., birth trauma may cause RH’s or SDH but does not explain either in 3-
       month-old child
   • A TV falling on a child’s head may cause extreme eye injuries but does not
       disprove abuse when this fact scenario is not present

Wolfson D.R., et al., (2005) Rigid Body Modelling of Shaken Baby Syndrome, Proc.
IMechE. Vol. 219 63-70
“ The main focus of research into injury biomechanics has been in the automotive
industry where injury mechanisms are normally single impacts of high energy. The injury
criteria used by Duhaime, et al. are scaled from one such study... Conversely, in SBS the
head is subjected to cyclic, low energy loading without impact. In essence, by using these
criteria, SBS is studied as a single-impact event and any effects of cumulative loading are
ignored. Although more suitable criteria based on cyclic loading are not available, it is
inappropriate to apply current injury criteria, scaled or otherwise, to this syndrome. ”
Wolfson D.R., et al., (2005) Rigid Body Modelling of Shaken Baby Syndrome, Proc.
IMechE. Vol. 219 63-70
“It is unlikely that further study of the gross biomechanics of SBS will provide an
explanation for those cases where impact injuries are not found. Rather research focusing
on the specific injury mechanisms and infant tissue properties is more likely to provide
insight into this syndrome.”


                                                                                         32
Shaking vs. Impact – Practical Points
•The debate is irrelevant since abuse occurs in either scenario
•Impact involves a second mechanism of trauma if preceded by shaking, thereby
increasing the offender’s culpability
•Evidence often only visible at autopsy so can’t find or exclude if no death
•Impact against soft object equally damaging but leaves no marks
•Do we rely only on perpetrator confessions or physical evidence to confirm impact and
presume none in their absence?

Shaking vs. Impact – Practical Points
•Pounder case of shaken adult w/o impact
•Many documented cases with only shaking
•APRICA research establishes violence of pure shaking and will counter misuse of
Duhaime’s 1987 article
•Duhaime does not suggest that pure shaking is not damaging
•Ask perpetrators and do video demonstrations
•Pure shaking may and likely does involve repetitive impacts in many instances

CROSS-EXAMINATION TECHNIQUES
*Use other data written by authors they cite which is inconsistent with data they rely on
for opinion
Example – Reliance on Duhaime (1987)
•Duhaime has written several articles since
•Duhaime has never said in any of those articles that baby’s can’t be injured by shaking
alone
•Replicated study in 2003 along with Prange
•Concluded that short falls do not cause sufficient forces to injure in falls under 5 ft

CROSS-EXAMINATION TECHNIQUES
*Comment on practice of strange marriages between experts
Example – Geddes & Plunkett (2004)
•Plunkett – Short falls can kill but shaking cannot generate sufficient forces
•Geddes (2003) – gentle non-violent conduct may cause injuries replicating SBS
•Geddes & Plunkett co-authors on 2004 paper attacking scientific base of SBS
•Should we re-title the scientific base for defense critiques of SBS?

Theories With Logical Consistency?
•Shaking can’t generate sufficient forces
• Short falls do generate sufficient forces
• Forces depend on the height of fall and weight of child but gravity is constant
• Majority of falls involve impact to head
• Most short falls would generate forces sufficient to kill, cause TBI
• Few falls cause death or TBI
• What is wrong with the theory?
• Why does the math not add up?


                                                                                           33
Practical Suggestions
•Measure scene and all items child may fall from or onto
•Seize furniture items
•Preserve sample of fall surface(s)
•Document child’s developmental abilities (scoot, crawl, roll over)
•Have defendant reconstruct alleged fall and document with video and measurements

Practical Suggestions
•Highlight key medical findings which are inconsistent with short fall
–Epidural vs. SDH/SAH
–Underlying brain injury
–Complex skull fx vs. linear
–Skull fx with brain injury vs. without
–Other associated or non-associated injuries
–RH’s, retinoschisis, optic nerve sheath hemorrhage
Practical Suggestions
•Avoid dealing with biomechanical data
– Exception for Daubert hearings
– Defense expert will manipulate the math
– Jurors won’t understand
– Attempts to clarify truth through cross will produce more confusion
– Judges also unlikely to understand
– Attempt to illustrate why claims don’t add up using common sense
– Gravity constant yet kids survive
Practical Suggestions
•The old math vs. the “new” math
•Large percentage of falls to kids involve head impact
•Short falls under “new” math create fatal forces
•Large percentage of short falls should create fatal outcomes
•Few falls cause serious injury or death
•Something must be wrong with the math

Practical Suggestions
•Use the old math and frequency data
•Fall studies report minority of falls that actually occur – those with most severe
outcomes
•Millions of unreported falls occur annually




                                                                                      34
•Unique  cases reported in literature typically have mechanisms and injury types
inconsistent with abuse cases

Practical Suggestions
•Emphasize short fall is the most common false hx provided to doctors, CPS, LE and in
literature
•Use visual aides to present short fall data
– Cincinnati Children’s Hospital Powerpoint & outline
– Fall studies table
•Key   in on juror experience through appropriate voir dire questions

Notorious Killers of Children

Chadwick, Bertocci,Castillo, et al., (2008), Annual Risk of Death Resulting from Short
Falls among Young Children: Less Than 1 in 1 Million, 121 Pediatrics 1213-1224.
Available at
http://www.pediatrics.org/cgi/
content/full/121/6/123
Insulating Your AHT Case
Use demonstrative aides
•Simplify complex medicine for fact finder
•Pictures speak 1000 words
•Make sure accurate, reliable, supportable

Insulating Your AHT Case
14. Media wars
•Can we win them
•Distinct bias against us
•Defense good with PR and spin
•More sensational to bash prosecution than promote interests of abused kids
•Response to press by knowledgeable professionals
• Remember ethical considerations in making public comments
• When is a case still “pending” – when on appellate status, if in post-conviction
proceedings, if habeas petition filed, etc.?


Additional Case Law

“Shaken Baby” under Frye
   4. A “novel” scientific technique must generally be accepted in the relevant
      scientific community and the particular evidence must have a foundation that is
      scientifically reliable.
   5. “Shaken Baby Syndrome” is generally accepted in the field. Because the
      diagnosis is beyond common knowledge, expert testimony in the field is
      appropriate. CT v McClary, 542 A2d 96 (Conn 1988). **



                                                                                         35
   6. “A diagnosis based on an expert’s opinion and experience, versus a specific
      scientific test, would not be subject to a Frye Hearing” Herlihy v Florida, 927 So.
      2d 146, April 2006.
   7. Defendant argued that a Frye hearing was necessary because SBS was
      controversial and was not generally accepted by the relevant scientific
      community. The appellate court found that Shaken Baby Syndrome was accepted
      in the relevant scientific community and, therefore, was no longer new or novel.
      Johnson v. State, 933 So. 2d 568

Nebraska v Leibhart, 662 NW2d 618, 2003
•Defendant filed a pre-trial motion to exclude testimony regarding SBS b/c it is not
supported by reliable scientific authority. The defense attorney also objected when the
treating physician was asked if he had an opinion as to what caused the victim’s injury.
•2 Pediatricians testified, Dr. Shaffer and Dr. Moran.
•Daubert hearing conducted with Dr. Moran
•He testified regarding his qualifications and training with respect to SBS, that clinical
studies had been done which had been peer reviewed and published. On cross he stated
that some clinicians who argue that shaking cannot create adequate force had determined
that their competing theory needed more study. At the conclusion, the court found that
SBS had been “clinically tested” and that it is “generally accepted within the scientific
medical community of pediatrics.” The doctor testified in open court regarding general
and specific causation, as well as the subjects of his testimony in the hearing.

Nebraska v Leibhart, 662 NW2d 618, 2003
   8. District did not abuse its discretion
   9. With respect to general causation-reasoning or methodology underlying testimony
       regarding SBS was valid
   10. With respect to specific causation-such reasoning could be applied to the facts in
       this case

Nebraska v Leibhart, 662 NW2d 618, 2003
   11. Based on evidence at hearing and trial
   12. Evidence concerning SBS in general was sufficiently reliable under Daubert
       because the theory had been clinically tested and peer reviewed.
   13. The findings had been documented by considerable literature…the studies show a
       low error rate, and the findings are generally accepted with field of pediatrics
   14. And that expert testimony regarding SBS could be applied to this case because
       injury sustained by Emily was similar to expert testimony on SBS and the other
       explanations could be excluded
   15. The court quotes numerous other courts both within and without Nebraska to
       support its finding

Delaware v. Vandemark, 2004 Lexis 376, 2004 WL 2746157 (Del. Superior Ct., 2004).
•Defendant filed a motion to exclude expert testimony on “Shaken Baby Impact
Syndrome”
•Daubert hearing held-sole witness Dr. Cindy Christian




                                                                                        36
•“ After reviewing the record and the law, I find that evidence concerning SBIS and
inflicted head trauma will be admitted. These diagnoses are compatible and are generally
accepted in the field of pediatrics. They have been admitted in the most serious criminal
trials”
•The Court found “ ..the science behind “Shaken Baby Impact Syndrome” has been
accepted in Delaware and just about every other jurisdiction”
•Further, the Court offered an analysis of the defendant’s proferred explanation of a short
fall as opposed to SBS as the cause of the victims injuries. The Court relied not only on
Dr. Christian’s testimony but also on determinations made by courts around the country
that the type of injuries suffered by this victim was not consistent with falling off a
couch/or any short fall.

Delaware v. Vandemark
   16. “ Dr Christian cited the findings of investigators in the pediatric profession who
       found subdural hematomas and retinal hemorrhages to be among the constellation
       of findings associated with the syndrome. These findings are consistent with
       children suffering major rotational forces well beyond normal child care
       activities.”

Delaware v. Vandemark
•The Court went on to analyze the concept of “error rate”
•The Court referenced a Colorado case
•People v Dunaway, 88 P3d 619, 2004 where a child suffered serious bodily injury and
the defendant alleged the child had fallen off of a couch. In that case as Dr. Christian
noted in Vandemark, that it would obviously not be possible to test a child’s response to
intentional injury, it was impossible to know what minimum force was required to cause
an infant’s subdural hematoma.

Delaware v. Vandemark
•Additionally, the Vandemark court discusses “ Analysis of Missed Cases of Abusive
Head Trauma” Jenny et al. and dismisses the defense argument that “since a rate of error
was established for certain undisputed cases of abusive head trauma, there must be a rate
of error for over-reported cases or cases of false positives.” The court stated “This may be
an apples to oranges comparison. …Under the circumstances, this is the best of what can
be expected as children cannot be tested.”
•“Errors may form the basis of a malpractice suit, yet they do not mean that the diagnosis
itself is invalid…the standard is relevance and reliability not certainty.
•“The absence of known rate of error reflects the limitation of the subject matter”
“Causes from low height accidental falls or prior injuries can be excluded. Areas of
defense interest can be explored by cross and the jury can give it the weight it deserves”


State v. Brooks, 2004 Wash. App. LEXIS 361, 2004 WL 439979
• 74 day old baby sustaining severe head trauma on multiple occasions and other
    abusive injuries including spiral fractures in both legs



                                                                                         37
•On November 22, 1997, Brooks took custody of a two-day-old baby boy. She named
him Z.B. and was in the process of adopting him. On February 2, 1998, Brooks called
911 to report that Z.B. had stopped breathing and that there was an unusual fluid coming
from his mouth.
•Dr. Rod Belkin, a diagnostic radiologist, also reviewed Z.B.'s CT scan. Dr. Belkin noted
the chronic subdural hematoma on the right side of Z.B.'s brain. He testified that he
believed this wound to be at least a week old. He also noted acute subdural hematomas
on both the left side and the right side of the front temporal junction of Z.B.'s brain.
After Dr. Monica Clare Wehby performed emergency neurosurgery on Z.B., Dr. William
Bennett, a pediatric radiologist, did a full skeletal survey and magnetic resonance
imaging (MRI) and discovered unhealed fractures of the top and bottom end of Z.B.'s left
leg and a possible fracture of Z.B.'s right thigh bone. These injuries are caused by a
simultaneous twisting of the child's legs and are non-accidental. The CT scan revealed an
older or chronic (old) subdural hematoma on Z.B.'s brain as well as new or acute
subdural hematomas and brain contusions on both sides.
•Dr. Christofani also consulted with Dr. Michael Lukschu, a member of the Child Abuse
Response and Evaluation Service team at Emanuel. Dr. Lukschu examined Z.B., read the
other reports, and concluded that Z.B.'s injuries appeared to be non-accidental.

State v. Brooks – to SBS or not to SBS
•Brooks challenges the trial court's admission of evidence of "shaken baby syndrome,"
claiming that it is not generally accepted in the scientific community. She also asserts that
she was denied the right to a fair trial when the trial court allowed the witnesses and
parties to use the phrase "shaken baby syndrome," but she fails to cite any legal authority
requiring exclusion of the phrase.
• The State provided numerous medical journal articles demonstrating widespread
acceptance of the term "shaken baby syndrome" and the trial court denied the defense
motion to exclude the testimony subject to the State's providing further medical
foundation for the syndrome through the testimony of its witnesses. The State's medical
witnesses testified that the diagnosis of "shaken baby syndrome" was widely used in the
pediatric community and a defense witness testified that SBS was taught in medical
schools throughout the country.
• Dr. Ronald Uscinski and Dr. Werner Goldsmith testify as defense experts suggesting
victim’s injuries were non-abusive and result of birth trauma and rebleeds of preexisting
SDH’s. Court comments on speculative nature of testimony in absence of proof of
victim’s actual birth process
•Although use of the phrase "shaken baby syndrome" should be avoided because it
suggests the ultimate fact to be determined by the jury, here the State, the defense
counsel, and numerous witnesses repeatedly used the phrase. Brooks cites no legal
authority precluding the use of the phrase. Moreover, during trial, Brooks used the term
and cannot now object

State v. Woodson, 2005 Ohio App. LEXIS 5136; 2005 WL 2789082
    17. Five medical experts testified that, to a reasonable degree of medical certainty, the
        injuries were the result of an inflicted head trauma or shaken baby syndrome, and
        were not caused by a rebleed to an existing injury. Further, defendant was the sole



                                                                                          38
         caretaker at the time the injuries occurred, and he was found to have acted
         knowingly
    18. …there is no disagreement among the mainstream of neurologic surgeons that
         there is a very real problem of inflicted head injuries to infants. Furthermore, case
         law establishes that shaken baby syndrome is within the medically accepted
         literature and testimony that has ensued in courtrooms in this state, as well as
         nationwide, citing cases from multiple states.
•Appellant also maintains that the subdural hematoma was a rebleed of a pre-existing
injury. Again, we find Appellant's argument lacks merit. As stated previously, Dr. Harris
testified to a reasonable degree of medical certainty that Troy's injuries were inflicted
head injuries, not rebleeds. Dr. Cohen testified that a rebleed of a chronic subdural
hematoma without trauma is extremely unlikely and he had never seen it occur.

McIntire v. Commonwealth, 192 S.W.3d 690 (Ky. App. 2006)
    19. It was error to allow the expert to testify that a non-abusing parent would have
         been aware that his or her child was being abused. No Daubert analysis occurred
         with respect to this testimony, though defense counsel twice requested a hearing,
         questioning the scientific basis of the testimony. There was no demonstrated
         scientific basis for the testimony, and insufficient evidence to support a finding
         that the expert was qualified to render this opinion testimony. We find error,
         however, in allowing Dr. Spevak to testify that a non-abusing parent would be
         aware that his or her child was being abused
• BUT::Turning to Appellant's first objection to Dr. Spevak's testimony, we note that
neither party herein argues that Dr. Spevak was unqualified to testify as to the force
required to sustain the types of injuries inflicted upon Jordan. Appellant objects only to
her conclusion that the impact would have been noisy. We find this determination to be
nothing more than a common sense conclusion based on the evidence. Dr. Spevak did not
testify as to a particular decibel range, only that the sound would be "very noisy."
• Clearly, Dr. Spevak was qualified to testify as to the mechanics and causation of
Jordan's injuries. Accordingly, the bulk of Dr. Spevak's testimony on direct examination
concerned the extent of Jordan's injuries, the most common injuries sustained by abused
children, the force necessary to inflict Jordan's injuries, and her professional opinion as to
whether the injuries were accidental.

United States v. Delgado 2009 CCA LEXIS 116; 2009 WL 1289995
• Case holding trial court abused discretion in failing to permit defense to bring in
   Uscinski to support defense claim that there is no support for theory that shaking
   alone can cause injury.
• Defense attorney filed affidavit claiming Uscinski is “one of the foremost medical
   experts of SBS” in the country and held opinion that shaling alone without evidence
   of cranial trauma or impact cannot cause SDH and RH’s
• Defense acknowledged this was minority held theory among medical experts
• Defense also wanted to bring in Horace Gardner and Patrick Lantz
• Prosecution experts in homicide trial alleging victim shaken to death and could have
   impact trauma without evidence of such trauma
• Victim had SDH, bilateral RH’s and rib fractures, no evidence of impact


                                                                                            39
•   Court assigned medical doctor as expert for defense who acknowledged there were
    two views on SBS but this doctor believed in SBS and did not share Uscinki’s
    minority position or testify on the merits
•   Court notes there are no eyewitnesses and case heavily dependent on medical proof
•   Court holds denial of expert testimony results in fundamentally unfair trial since it
    deprives defendant of very defense he wants to present
•   Court essentially sanctioning notion that you get to present the expert and defense of
    your choice
•   No analysis of reliability or viability of defense claims; court assumes Uscinski truly
    is “national expert” versus hired gun espousing fringe position that is scientifically
    unsound

Hamilton v. Commonwealth of Kentucky, 2009 Ky. App. LEXIS 138
• Court holds it is error to permit testimony on SBS at trial without first conducting a
  Daubert hearing when defense made demand for such a hearing pretrial
• No reference to holding in Davis-Martin upholding admission of SBS testimony and
  rejecting Daubert challenge which was decided in 2008
• Court distinguishes prior cases admitting SBS expert testimony as precedent that did
  not specifically determine admissibility of SBS as a “reliable theory”
• Recognizes other states have admitted and found reliable but gives this no weight
  because Kentuchy has not recognized SBS as reliable for purposes of “taking judicial
  notice”
• Opinion seems to suggest that if defense makes demand no matter how unreasonable
  the court must comply and make extensive findings of fact and conclusions of law
• Prosecution required to continually engage in exercises in futility
• No determination by court that expert testimony admitted at trial was anything other
  than reliable, that SBS is not supported in medical science
• Four experts testified to SBS for prosecution
• Defendant made admissions of shaking baby to some degree

Caban v. State, 9 So. 3d 50 (Fla. Ct. App. 2009)
• Court reverses SBS conviction because Dr. Randy Alexander and other prosecution
   experts comment that Plunkett is not credible witness.
• Court notes that Plunkett is “perhaps the most widely known shaken baby syndrome
   skeptic”
• Plunkett claimed short distance falls cause SDH’s and death and child died from short
   distance fall
• One prosecution expert testified that Plunkett’s opinion was not supported or
   substantiated by his data and that Plunkett’s interpretation of his data is incorrect –
   What’s wrong with this testimony which is completely accurate and appropriate?
• Another prosecution expert commented that particular experts were used by defense
   attorneys all over the country and if you “want to make a lot of money” you put your
   name on a defense attorney list – again what is wrong with this testimony which is
   also completely accurate?




                                                                                          40
•   Alexander was asked opinion about Plunkett’s short fall paper and his testifying –
    defense attorney used Plunkett’s paper also in cross of prosecution experts
•   Alexander commented that NAME Position Paper on AHT and that from AAP were
    “at huge variance with Plunkett” and his opinions were not generally accepted by
    medical community and his “conclusions are not accepted as even following from his
    own data” and his data is “soft”
•   Alexander also commented on frequency of Plunkett’s appearances as defense expert
•   Alexander testifying as rebuttal witness. Isn’t point of rebuttal expert to discredit the
    defense witness?
•   Court says improper for one expert to comment on credibility of another expert.
•   Case law in state prohibits one expert from commenting on qualifications of another
    expert
•   Trial judge commented about jurors reactions when testimony was elicited that the
    defense experts were people who simply traveled around the country testifying for
    defendants trying to get them off in serious cases
•   Appellate court comments that at retrial state can cross Plunkett on bias in testifying
    for defense or can be asked about contrary literature but this must be done on cross
•   So defense expert can just lie and the only recourse is to cross examine and see if they
    will acknowledge the contrary data they clearly disagree with.
•   Of course if dealing with irresponsible expert it’s not like they are going to concede
    on cross and admit falsity of position
•   Horrible decision but may be limited to Florida which seems to have unique
    precedent about criticizing opinion testimony of opposing expert

Day v. Quarterman, 566 F.3d 527 (5th Cir. 2009)
• Habeas petition filed by defendant, day care provider, convicted of child abuse to two
   victims involving multiple fractures and head trauma from SBS
• One victim has single spiral fractures to femur, other victim has two acute spiral
   fracture to both femurs and AHT involving skull fracture, old and new SDH and
   extensive bilateral RH’s
• Defendant alleged ineffective assistance of counsel for failure to challenge state’s
   proof of SBS and to call defense experts to challenge science-theory of SBS
• Defendant supports petition with affidavit from Dr. Galaznik
• Ridiculous assertions by Galaznik in affidavit
• Galaznik not qualified to offer testimony in first place
• Habeas denial upheld without direct commentary on stupidity of defense position or
   ridiculousness of Galaznik’s assertions

People v. Rector, 2009 Colo. App. LEXIS 1217
• Reverses child abuse conviction because state’s expert permitted to testify that
   injuries to victim were caused by child abuse
• Defense filed pretrial motion seeking to preclude prosecution’s medical experts from
   “speculating that [victim’s] injuries resulted from child abuse”
• Dr. Sirotnak testifying to acute SDH, RH’s and midline shift inconsistent with
   defendant’s allegation victim had fallen off bed


                                                                                          41
•   Sirontak also commenting that “within a reasonable degree of medical certainty”
    injuries were “the result of child abuse” and he reached his conclusions after stating
    he was unaware of any adequate explanation for the severity of victim’s injuries
•   Decision premised in part on failure of trial judge to conduct pretrial hearing to
    determine if Dr. Sirotnak’s conclusions were based on reliable scientific principles
    (despite extensive precedent in state repeatedly permitting testimony on these topics
    and findings)
•   Court also negatively comments on “expert opinion regarding the ultimate legal issue,
    which usurped their role as fact finders” (despite fact rules of evidence permit expert
    testimony on ultimate issue)
•   Outrageous and non-sensical decision
•   Court seems to draw distinction between medical and legal definitions of child abuse,
    the latter implicating mens rea elements
•   Court says that even if trial court on remand determines that basis for expert opinion
    is scientifically reliable expert would be precluded from testifying that injuries to
    child resulted from child abuse because this “testimony would concern the ultimate
    legal determination” of the defendant’s guilt
•   This is standard well accepted expert testimony all across the country

State v Brooks, 2004 WL 439979 (Wash. App. Div. 2). 74-day-old victim, defendant
convicted of first degree assault of a child. Victim in D’s exclusive care when child
becomes unresponsive. D offers statements to several people who respond to house that
she had been rough housing with victim tossing him into air and tossing him onto bed,
left him unattended to prepare bottle and returned to find him not breathing. Victim has
older and acute SDH (mixed density SDH involving acute, subacute and chronic
findings), brain contusions on both sides, bilateral RH’s and multiple unhealed fractures
of legs not specifically described but mechanism for causation is described as a
“simultaneous twisting of the child’s legs.” Paramedics also observed bruise on child’s
head which defendant claimed was not present when she gave child bath 45 minutes
earlier and suggesting baby may have “rolled over on bed and hit his head on phone.” ER
doctor noticed bruises on head and cuts around baby’s mouth, along with bulging
fontanelle. Multiple doctors testified injuries were result of NAT via SBS and one doctor
indicated it could have also been caused by repeatedly throwing baby onto a bed. Defense
called Dr. Werner Goldsmith and Dr. Ronald Uscinski. Uscinski is described as
“speculating that victim’s SDH was the result of a chronic SDH that originated from birth
and “rebleed”. Defense presented no evidence of victim’s actual birth circumstances.”
Habeas petition denied based on claims of “new evidence”. See 2007 WL 1129655. Great
analysis by court suggesting new result would not follow and defense presented similar
claims in original trial. Court rejects assertions of “new medical research on SBS”
alleging that SDH’s can be caused by birthing process and violence is not necessary to
cause SDH or RH’s and DAI is uncommon in child abuse, and onset of hemorrhaging can
be delayed and does not necessarily start immediately after child suffers trauma, and fact
experts expressing concerns that SDH and RH’s may not be strong evidence of SBS.
Once again there is evidence of potential impact based on acute bruising to head.

Middleton v. State 980 So.2d 351 (Ct. App. 2008)


                                                                                        42
Neighbor hears baby crying, then hears something going across floor followed by a loud
thump
A few minutes later D is seen walking down steps carrying baby who is not breathing and
911 is called
No description of history provided by D
Interhemispheric SDH and SAH, RH’s not otherwise specified, back of brain injured,
brain atrophy, edema, permanent disability, no evidence of external trauma
Multiple doctors testifying injuries result of SBS, no description of impact trauma despite
strong circumstances supporting
Doctors testify SBS generally accepted in medical community
Doctors reject accidental trauma as explanation for severe injuries, severe forces required
Court rejects D’s claim that SBS is not generally accepted by the medical community,
notes acceptance by other courts, experts well qualified to offer opinions, opinions
similar to those admitted elsewhere
Court also rejects claim that experts no permitted to testify because there is no “board
certification” in child abuse though one expert testifying this will be subject to
certification by testing in 2009

Mitchell v. Arkansas, 2008 WL 316166 (Ark. App.)
Court rejects defense claim that testimony on SBS is “inherently prejudicial” because it
describes a mechanism of injury that connotes violent and abusive behavior to infant
Upholds trial court’s rejection of defense claim that Daubert analysis is required to
permit expert testimony on subject, trial court rejecting because SBS is a “longstanding
medical diagnosis” but no extended discussion on this

Morales v. Ault, 476 F.3d 545 (8th Cir 2007)
Habeas challenge that includes ethical challenges against prosecutor
Extensive discussion of facts by Court
Challenges raised to prosecutor having joint pretrial preparation meeting with multiple
experts – alleging improper because this was attempt to get all the experts to say the same
thing
Additional challenges to “holding back” medical records for some time from defense
Court noting condemnation of such practices

Medical Ethical Issues

Irresponsible Expert Testimony
   1. Lack of qualifications to support opinions
   2. Unique theories of causation, contrary to vast medical literature and
   consensus
   3. Unique interpretation of findings
   4. Misquoting of the literature (or misunderstanding the nature of the
   science)
   5. B latantly false statements – either about the science or about their
   qualifications


                                                                                           43
Irresponsible Testimony by Medical Experts in Cases I nvolving the
Physical Abuse and Neglect of Children
D. L. Chadwick & H. F. Krous, 2(4) Child Maltreatment 313 - 321 (1997)

Problematic testimony implicating ethical considerations
– Omit important facts or knowledge pertinent to opinions being offered
– Expert opinions outside field of expertise
– Complicated & technical testimony
– Scripted or choreographed testimony
– Testimony contradicting expert’s writings
– Use of phrase “experts on both sides agree”
– Misrepresentation of facts, science or literature
Patrick Barnes (2002) Ethical Issues in Imaging Non Accidental Injury: Child Abuse,
13(2) Topics in Magnetic Resonance Imaging 85-94

Other standards - considerations
– Reliance on literature or data that has been subject to extensive peer critique without
   disclosing the controversy
– Failure to maintain currency with literature
– Failure to disclose limitations of opinion or data relied on or contrary data
– Failure to consider injuries in their entirety or focus on isolated injuries
– Remote possibilities paraded as opinions pursuant to “reasonable medical certainty”
– Coaching the attorney on areas to avoid
What does it mean to tell “the whole truth”?

Legal Ethical Issues

The Ethical Rules We Live By
-   Binding
- Helpful
- Practical
- Moral

Binding
- State Rules of Professional Responsibility
- Applicable Case and Statutory Law
   – e.g. Prosecutors are subject to ethical rules just like other lawyers.
                        ,
      Imbler v. Pachtman, 424 U.S. 409, 429, 96 S.Ct. 984 (1976)

Helpful
- Nat. Prosecution Standards (NPS) - 2nd Ed.


                                                                                      44
- ABA Model Rules of Prof. Conduct (ABAR)
       • ABA Model Code of Professional Responsibility
       • “Code” preceded “Rules”
                                                         )
- Some state rules based on Code (Disciplinary Rules [DR])
- ABA Standards for Criminal Justice (ABASt)
- See also Prosecutorial Misconduct, 2d ed., by Bennett L. Gershman, West Group
   (1999), summarizing case law on ethical issues.

Moral & Practical
- What is the right thing to do in the case
- Just because I can does not mean that I should; just because I don’t have to does not
  meant that I shouldn’t (e.g., disclosing adverse authority from other jurisdictions)
- How do we want to be perceived by the defense bar and the courts
- What impact do my actions today have on my practice tomorrow
- Public perceptions in a TV dominated society
- Our obligations go well beyond ourselves and our office to profession as a whole and
  to all other prosecutors
- Can we be too ethical?

ABAR 8.4 Misconduc t
It is professional misconduct for a lawyer to:
(c) Engage in conduct involving dishonesty, fraud, deceit or
   misrepresentation.
(d) Engage in conduct that is prejudicial to the administration of justice.

Compare DR 1-102(A) (4) & (5)

What We Want to Avoid:
• Violation of People’s Rights
• Remember - We wear the White Hat
• Preclusion of Evidence
• Reversal on Appeal
• Civil Lawsuits
• Disciplinary Action

Case Reversal \ Evidentiary v. Liability v. Disciplinary Action
Conduct may have no reversal or evidentia ry effect and yet subject
  prosecutor to disciplinary action
   – e.g. conferring with defendant outside of presence of attorney
                                                             ,
     (ABAR 4.2, DR 7 - 104(A)(1)) See Matter of G. Paul Howes, 123 N.M.
     311, 940 P.2d 159 (1997)


                                                                                    45
To What Extent Do Ethical Guidelines of Ot her Professionals Impact
Trial Practice & Ethical Conduct of Prosecutor?
• AMA Code of Professional Conduct
• Subspecialty professional standards (e.g. Radiologists)
• Prosecutor’s role as “Minister of Justice” may necessitate adherence to
   limitations imposed by other professional’s ethical codes, even where
   there is no specific legal ethical rule governing the issue, e.g. profiling
   evidence involving victims or offenders

Actions involving ethical complaints may be filed under:
• Federal Civil Rights Act - 42 U.S.C. 1983
• Citizen’s Protection Act – 28 U.S.C. 530(B)
• State Civil Rights Act
• Negligence
• Malicious Prosecution
• False Arrest
• Defamation
• RICO - conspiracy
• Due Process
• State Grievance Complaints


Legal Advice to Police
NPS 22.1 - Advice on Legal Compliance - P rosecution should provide
advice to local law enforcement agencies concerning sufficiency of
evidence, warrants, and similar matters relating to investigation of
criminal cases. The prosecution should serve in an advisory capacity to
insure the legality o f documents and procedures in pursuing criminal
cases. The prosecutor should encourage the police to seek this advice as
early as possible in the investigation of a case.

ABASt 3 - 2.7 Relations with Police
(a) The prosecutor should provide legal advice to the police concerning
   police functions and duties in criminal matters.
(b) The prosecutor should cooperate with police in providing the services
   of the prosecutor’s staff to aid in training police in the performance of
   their function in accordance with l aw.




                                                                            46
Immunity - Absolute v. Qualified Limited (good faith)
                   ,
Imbler v. Pachtman, 424 U.S. 429, 96 S.Ct 984 (1976)
• “In initiating the prosecution and in presenting the State’s case, the
  prosecutor…” is absolutely immune.
• Absolute immunity for functions that are “intimately associated with the judicial phase
  of the criminal process.”
• Was the prosecutor acting in a quasi - judicial role, rather than as an
  investigator, complainant or administrator?

Burden of Proof\Effect - Absolute Immunity
• The effect of absolu te immunity is to defeat a lawsuit at its inception.
                                                                 inception
                    ,
  Imbler v. Pachtman, 96 S.Ct. 984, 989 (1976)

• The burden of proving absolute immunity is on the prosecution.                Burns v.
      ,
  Reed, 500 U.S. 478, 111 S.CT. 1934, 1944 (1991)

Qualified Immunity
“objective stand ard that allows liability only where the official violates
  ‘clearly established statutory or constitutional rights of which a
  reasonable person would have known.’”
             » Burns v. Reed, 500 U.S. 478, 111 S.Ct. 1934, 1944
                            ,
                                                 ,
               (1991)(citing Harlow v. Fitzgerald, 457 U .S. 800, 102 S.Ct.
               2727 (1982)

Investigation v. Prosecution
• Legal Advice to Police during investigation phase of criminal case is
  not “intimately associated with the judicial phase of the criminal
  process,”
                           ,
            » Burns v. Reed, 500 U.S. 478, 111 S.Ct. 1934, 19 42 (1991)
   – Only Qualified Immunity (good faith)

                  ,
Kalina v. Fletcher, 118 S.Ct. 502 (1997)
Prosecutor who attested to truth of facts in support of arrest warrant not
  absolutely immune from liability under 42 U.S.C. §1983
   – action taken was that of a complainin g witness and therefore not
      entitled to absolute immunity
   – “Testifying about facts is the function of the witness, not the
      lawyer.”



                                                                                      47
Advocatory Functions Under Kalina
• Drafting legal documents
• Determining probable cause to proceed
• Deciding to file charges
• Pr esenting information and motions to court


Qualified Immunity
“As the qualified immunity defense has evolved, it provides ample
  protection to all but the plainly incompetent or those who knowingly
  violate the law.”
             » Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092 (1986)
                               ,

Ethical Issue - Competence - ABAR 1.1
A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.

Ethical Issue – Failing to Act Competently - DR 6 - 101(A)(1) & (2)
A lawyer shall not: (A) Handle a legal matter which he knows or should
know that he is not competent to handle without associating with him a
lawyer who is competent to handle it. (B) Handl e a legal matter without
preparation adequate in the circumstances.


Questions Regarding Competence
• Are these rules limited to “legal competence” or does it require competence in the
   subject matter of the litigation, e.g., competence and knowledge of the relevant
   medical literature?
• The comments to the Rules focus on “legal competence” but the language of the Rule
   is arguably broader.
• A broader interpretation is probably more consistent with the evolving sophistication
   of our practice.
• How much preparation and knowledge is enough and where are the standards to be
   found, e.g., among fellow prosecutors, civil attorneys dealing with complex medical
   litigation, etc.?
• Is there a different standard because the prosecutor represents the public rather than
   an individual client?
• What if anything do these rules suggest regarding continuing education in non-legal
   fields that influence our legal practice?
• What does this have to say about the common practice of assigning younger
   prosecutors to handle complex child abuse cases?


                                                                                     48
Principles of Case Analysis - Prep
• Early involvement & review of case

    – Time when we can exercise most control
•   Most likely to influence case outcome; numerous advantages:
    – Find and cure problems ahead of time
    – No pressure from court
    – Opportunity to discover and/or lock out untrue defenses
    – Lock Defendant and Defendant’s witnesses into a position
• Prepare at investigation & charging stage as if trial will be held next
  week
• Charging decisions should anticipate possible defenses

    – Can charging decision be modified later; e.g. superseding indictment
      or amended complaint
    – Notice requirements, trial delays & continuances
•   Medically intensive cases
    – Necessitates thorough familiarity with medical literature
    – Meet with doctors early
    – HIPAA issues regarding communicati on at various stages
    – Medical evidence can inform charging decisions
• Medical evidence seldom definitive - must be buttressed by lay
  witnesses, scene investigation & thorough history
• Rare exception that all we need will be supplied by investigators
• Assume that case WILL get worse

Follow up Investigation Needed
• Get the things that will take time to do or will change over time
• What do you need to get now that won’t be available 6 months from
    now?

• Scene - Search warrant to videotape or photograph scene, meas urements
    of items in home, seizure of evidence, e.g., the offending couch or baby
    crib, obtain carpeting/flooring samples

• Have all witnesses been locked into detailed statements?
•   Obtain complete records
    • CPS




                                                                            49
    Child’s medical history
    •
• Discover and evaluate Other Acts Evidence under 404(b)
• Corroboration of child witnes s statements
           • Search warrants for scenes and other corroborating evidence
           • Actions and statements of others
           • Identify disclosure witnesses and determine circumstances of disclosure and
             statements made
           • Corroboration, Corroboration, Corroboration (everything you can)

Areas for Follow Up Investigation
• Preserve 911 calls & radio dispatch calls
• Ensure complete documentation of Defendant’s statements; witness
  statements
• Background checks for Defendant an d witnesses
• Canvas potential witnesses - neighbors, school personnel, church
  members, etc.

Obtain Complete Medical History
• Obtain certified copies of all medical records for child
• Interview caretakers to discover
• Consent for release of records?
• Consider search warrant for additional business records that may
  contain sources for finding medical records, e.g. insurance records,
  bills, canceled checks

Discovery
• Prepare when doing case prep & charging
• Open file policy?
• Does it make your job easier in the l ong run?
• Jencks material - when turn over?

        – Prior to trial to facilitate efficiency?
        – Ethical issues & Brady requirements
•   Preparation of Defendant’s statements
        – Transcriptions of audio & video statements
        – Redaction of statements necessary?
•   Interpreters & tran slations when non - English - speaking witnesses
    involved




                                                                                           50
ABAR 3.8 Special Responsibilities of a Prosecutor
The prosecutor in a criminal case shall:
(d) Make timely disclosure to the defense of all evidence or information
known to the prosecutor that tends t o negate the guilt of the accused or
mitigates the offense...



Ethical Issue – Disclosure of Evidence by the Prosecutor ABASt 3 - 3.11
(a) A prosecutor should not intentionally fail to make timely disclosure to
    the defense, at the earliest feasible opportuni ty, of the existence of all
    evidence or information which tends to negate the guilt of the accused
    or mitigate the offense charged or which would tend to reduce the
    punishment of the accused.
(b) A prosecutor should not fail to make a reasonably diligent effor t to
    comply with a legally proper discovery request.
(c) A prosecutor should not intentionally avoid pursuit of evidence
    because he or she believes it will damage the prosecution’s case or aid
    the accused. (See also EC 7 - 13).

What is deemed by law to be within the knowledge or control of the prosecutor for Brady
purposes?
Does it include information within the possession of:
• Police
• CPS
• Other state agencies, e.g. mental health & medical facilities
• Other prosecutor’s offices within the state
• Agency representing CPS in juvenile court
• Medical expert or hospital
• Must it be exclusively within control of prosecutor or does access to the information
   by the defense, e.g. through public records, obviate need to disclose?

Scientific Testing & Analysis
• Consider alternativ e theories likely to be proposed by defense and
  defense experts
• DNA analysis
• Staining tissue samples from autopsy and microscopic analysis
• Staining for Diffuse Axonal Injury (DAI)
• Genetic abnormalities and metabolic disorders
• Toxicology
• Vitreous electroly tes


                                                                                    51
•   Genetic abnormalities & congenital disorders

Ethical Issue – Investigative Function of the Prosecutor ABASt 3 - 3.1
(d)    - A prosecutor should not discourage or obstruct communication
between prospective witnesses and defense counsel. A prosecutor should
no t advise any person or cause any person to be advised to decline to give
to the defense information which such a person has the right to give.

For example, discouraging doctors from speaking with defense counsel




Ethical Issue - No - Contact Rule - ABAR 4.2
In representing a client, a lawyer shall not communicate about the subject
of the representation with a party the lawyer knows to be represented by
another lawyer in the matter, unless the lawyer has the consent of the
other lawyer or is authorized by law to do so.

For example speaking with non-indicted caretaker who may be represented by attorney in
juvenile court dependency-neglect proceeding

Applicable Case Law
A prosecutor may not circumvent the prohibition on contact with a represented client
through the use of a law enforcement official or by advising another to communicate in a
manner which would be impermissible if engaged in by the prosecutor. See People v.
Hobson, 348 N.E.2d 894 (N.Y. 1976); Schantz v. Eyman, 418 F.2d 11 (9th Cir. 1969).
The prohibition applies even though the defendant has requested the interview. See
People v. Green, 274 N.W.2d 448 (Mich. 1979); State v. Britton, 203 S.E.2d 462 (W.Va.
1974). It also applies where the interview is in connection with the investigation of other
criminal activity. See In Re Burrows, 629 P.2d 820 (Or. 1981)

Assess Appropriate Charges
• Discuss with colleagues; obtain multiple perspectives
• Joinder & severance issues
• Examine jury instructions and relevant case authority
• Look for subtle nuances in j ury instructions and problematic case law
• Consider potential lesser included offenses
• Mens rea issues
• Is it more “ethical” to delay charging even where probable cause is established in
  order to more thoroughly evaluate the medical issues in the case?
• What does medical evidence support



                                                                                         52
Charging Considerations
• Do I have enough information or admissible evidence to charge and
  convict
• Should I charge yet

    – Have as much information as possible
• Who do I charge
• What specific charges should be issued
• How do I cha rge them - Principal - Accessory - Failure to Act


Other Charging Considerations - Single or Multiple Count(s)

• e.g. How do I get the victim’s old injuries into evidence?
• Number of assaults - Specificity of available evidence?
    – e.g. Does witness know how of ten something happened?
•   Availability of Other Acts Evidence

Tactical Considerations
• Lesser charges give the jury an out especially where defense may be
  BWS

Charging - Ethical Considerations
• ABAR - 3.8(a) - The prosecutor in a criminal case shall refrain from
  prosecuting a charge that the prosecutor knows is not supported by
  probable cause.

•   DR7 - 103(A) – A public prosecutor or other government lawyer shall not
    institute or cause to be instituted criminal charges when he knows or it
    is obvious that the char ges are not supported by probable cause.

NPS - 43.3 - Charges Substantiated by Evidence
The prosecutor should file only those charges which he reasonably
believes can be substantiated by admissible evidence at trial.

ABASt – 3-3.9(f) – The prosecutor should not bring or seek charges greater in number or
degree than can reasonably be supported with evidence at trial or than are necessary to
fairly reflect the gravity of the offense.




                                                                                     53
Screening
NPS - 42.3 - Factors to Consider
a. Doubt as to guilt;
b. Ins uff. of evid. to support conviction;
c. Reluctance of victim (V)…;
d. Improper motives of V or witness;
e. Civil remedies available;
f. Diversion programs available;
g. Provisions for restitution;
h. Prosecution by other criminal agency;
i. Aid t o other prosecution goals;
j. Age of case;
k. Attitude \ mental status of accused;
l. Undue hardship to accused;
m. History of non-enforcement;
n. Failure of law enforcement to perform necessary duties or
   investigation
o. The expressed desire of an a ccused to release civil liability… (but see
   43.5)
p. Any mitigating circumstances

Screening
NPS - 42.4 - Factors Not to Consider
a. Conviction rate;
b. Personal advantages to prosecutor;
c. Political advantages to prosecutor;
d. Factors of the accused legally recognized to be invidious
   discrimination insofar as those factors are not pertinent to the elements
   of the crime.

Charging
NPS - 43.6 - Factors to Consider
a. Probability of conviction;
b. Nature of offense
c. Characteristics of offender
d. Dete rrent value of prosecution;
e. Criminal prosecution by other agency
f. Willingness of offender to cooperate



                                                                          54
g. Aid to other criminal justice goals
h. Interests of V;
i. Improper motives of V or witness
j. Available civil remedies
k. Age of offense
l. Undue hardship caused to accused;
m. History of non - enforcement;
n. Cost of prosecution;
o. Recommendations of law enforcement agencies
p. Desire of offender to give civil release (but see 43.5)
q. Any mitigating circumstances

•   NPS - 43.4 - The prosecutor shou ld not attempt to utilize the charging
    decision only as a leverage device in obtaining guilty pleas to lesser
    charges.
    – E.g. Charging a capita l murder in hope of getting plea to a lesser
      murder

•   Query: What does the term “only” mean?

Assess Expert Witness es
• Pretrial and trial experts
• What theory will they support
• What is case law on admissibility
• Disclosure/notice requirements; include substance of opinions & data
  relied on
• Who is best expert for job
• Familiarity with medical literature
• Assess propriety of multiple experts

    – Repetitive information
    – Increase likelihood of conflicting opinions
Ethical Issue – Relations With Expert Witnesses ABASt 3 - 3.3
(a)   A prosecutor who engages an expert for an opinion should respect
the independence of the expert and should not seek to dictate the
formation of the expert’s opinion on the subject. To the extent necessary,
the prosecutor should explain to the expert his or her role in the trial as




                                                                              55
an impartial expert called to aid the fact finders and the manner in which
the exami nation of witnesses is conducted.


Pretrial Publicity
• Your charging document speaks for you when you can not
    • Warrants and complaints with detailed information
    • Indictments containing little information
• Matters of public record
    • Pleadings
    • Motions
    • Briefs
    • Discovery response
• Pretrial hearings
    • Bond hearing
    • Preliminary hearing
    • Motions (suppression, other acts, admissibility of experts, joinder-severance)

The prosecutor in a criminal case shall :
(e) exercise reasonable care to prevent investigators, law enforcement
personnel, employees or other persons assisting or associated with the
prosecutor in a criminal case from making an extrajudicial statement that
the prosecutor would be prohibited from making under Rule 3.6;

NPS - Limits on Information - 34.1
Prior to an d during trial, You may say:
a. DF’s name, age, residence, occupation, family status and citizenship
b. Substance or text of charge such as complaint, indictment,
information…
c. The existence of probable cause to believe DF committed offense
(NEW)
d. Iden tity of investigating agency and length of investigation...
e. Circumstances immediately surrounding arrest…
f. Matters of public record

NPS - Bars on Information - 34.2
Prosecutor should not release
a. Statements as to character…
      e.g. “It is about time we caught that no good dirty rotten…”
b. Admissions, confessions or alibis


                                                                                       56
c. Results or refusals to take tests
d. Statements of credibility or anticipated testimony
e. Plea possibilities
f. Information about tactics, strategies or arguments for tria l (AMENDED)

NPS - Public Responses - 34.3
Standards 34.1 and 34.2 do not preclude the prosecutor from making
  reasonable and fair responses to comments of defense of counsel or
  others.

Liability and the Media

• No absolute immunity for out of court statemen ts made at a press
  conference.

• Comments to press had “no functional tie to the judicial process.”
   – Buckley v. Fitzsimmons , 113 S.Ct. 2606, 2608 (1993)




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