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A WOMAN calls 911 to report that a baby in her care has gone limp. Rescue workers respond immediately, but the infant dies that night. Though there are no external injuries or witnesses to any abuse, a jury convicts the woman of shaking the baby to death. More than 1,000 babies a year in the United States are given a diagnosis of shaken baby syndrome. And since the early 1990s, many hundreds of people — mothers, fathers and babysitters — have been imprisoned on suspicion of murder by shaking. The diagnosis is so rooted in the public consciousness that, this year, the Senate unanimously declared the third week of April “National Shaken Baby Syndrome Awareness Week.” Yet experts are questioning the scientific basis for shaken baby syndrome. Increasingly, it appears that a good number of the people charged with and convicted of homicide may be innocent. Continue reading the main storyRELATED COVERAGE For the past 30 years, doctors have diagnosed the syndrome on the basis of three key symptoms known as the “triad”: retinal hemorrhages, bleeding around the brain and brain swelling. The presence of these three signs (and sometimes just one or two of them) has long been assumed to establish beyond a reasonable doubt that the person who was last taking care of the baby shook him so forcefully as to fatally injure his brain. Photo CreditVivienne Flesher and Ward SchumakerBut closer scrutiny of the body of research that is said to support the diagnosis of shaken baby syndrome has revealed methodological shortcomings. Scientists are now willing to accept that the symptoms once equated with shaking can be caused in other ways. Indeed, studies of infants’ brains using magnetic resonance imaging have revealed that triad symptoms sometimes exist in infants who have not suffered injuries caused by abuse. Bleeding in the brain can have many causes, including a fall, an infection, an illness like sickle-cell anemia or birth trauma. What’s more, doctors have learned that in many cases in which infants have triad symptoms, there can be a lag of hours or even days between the time of the injury and the point when the baby loses consciousness. This contradicts the idea that it’s possible to identify the person responsible by looking to the baby’s most recent caregiver. Last year, the American Academy of Pediatrics recommended that the diagnosis of shaken baby syndrome be discarded and replaced with “abusive head trauma,” which does not imply that only shaking could have caused the injury. The new understanding of this diagnosis has only just begun to penetrate the legal realm. In 2008, a Wisconsin appeals court recognized that “a shift in mainstream medical opinion” had eroded the medical basis of shaken baby syndrome. The court granted a new trial to Audrey Edmunds, herself a mother of three, who had spent a decade in prison for murdering an infant in her care. Prosecutors later dismissed all charges. Troublingly, though, Ms. Edmunds’s case has been a rare exception. Most shaken baby convictions have yet to be revisited. New cases are still being prosecuted based on the outdated science. Despite the shift in scientific consensus, debate about the legitimacy of the shaken baby syndrome diagnosis continues. Some scientists point tostudies using dummies modeled on the anatomy of infants as evidence that shaking cannot possibly generate sufficient force to cause the triad of symptoms — or that it could not do so without also causing injury to the infant’s neck or spinal cord. But others challenge the validity of these studies and maintain the belief that shaking alone can (though it need not) cause the triad. What’s needed is a comprehensive study of shaken baby syndrome to resolve the outstanding areas of disagreement. The National Academy of Sciences, which last year issued a comprehensive report on the scientific underpinnings of forensic science, would be the ideal institution to undertake such a study. In the meantime, however, there remains the question of justice. In Ontario, an official investigation concluded that there are deep concerns about the science underlying the triad, and now the province is reviewing all convictions based on shaken baby syndrome. Similar inquiries should be conducted on a statewide level here in the United States. For decades, shaken baby syndrome has been, in essence, a medical diagnosis of murder. But going forward, prosecutors, judges and juries should exercise greater skepticism. The triad of symptoms alone cannot prove beyond a reasonable doubt that an infant has been fatally shaken. Deborah Tuerkheimer, a professor of law at DePaul University, is a former assistant district attorney in Manhattan. http://www.nytimes.com/2010/09/21/opinion/21tuerkheimer.html?_r=1 “It is generally agreed that a litigant is entitled to have her case decided by a judge who can approach the facts in a detached and objective manner; indeed, the protection of the integrity and dignity of the judicial process from judicial bias has been hailed as ‘the palladium of our judicial system.’” In fact,California Code of Judicial Ethics provides in part as follows: "A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct, manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status." In an effort to accomplish such a result, "judges are trained to be sensitive to problems of bias." This is a quote from a Judicial Officer in California in response to a Discussion on LinkedIn entitled, "IS THERE GENDER BIAS IN OUR FAMILY LAW COURTS?" That same Judicial Officer also stated, "I can say that one does not undergo an instantaneous transformation from whatever one may have thought or believed as an attorney just by being sworn in as a judge or commissioner."
In his book "Mediating Dangerously - The Frontiers of Conflict Resolution", Kenneth Cloke made the following statement regarding bias: "[T]here is no such thing as genuine neutrality when it comes to conflict. Everyone has had conflict experiences that have shifted his or her perceptions, attitudes, and expectations, and it is precisely these experiences that give us the ability to empathize with the experiences of others. Nor are there any genuine neutrals in courts, including judges, CEO's, managers, and human resources representatives, all of whom have biases and points of view, including the bias of wanting to protect the organization from being disrupted by conflict. Judges have the most intractable bias of all: the bias of believing they are without bias." [emphasis added] See source for full article: http://www.markbaeresq.com/Pasadena-Family-Law-Blog/2012/January/Judicial-Bias-A-Variable-That-Is-Often-Overlooke.aspx In September 2008, the European Court of Human Rights and Fundamental Freedoms (ECtHR) upheld a breach of Article 13 of the European Convention of Human Rights (ECHR), in that the UK failed to provide RK and AK with an effective legal remedy for the removal of their child from their care as a result of medical misdiagnosis. The case throws into focus the approach the domestic UK courts have on the rights of third parties, in particular, the rights of parents where their children are subjected to negligent medical treatment. The judgment followed the consideration of the ECtHR of parental rights in the cases of TP and KM1 in 2001, in which the Court had similarly found that parents should have available to them a means of claiming that the local authority's handling of the procedures was responsible for damage which they suffered and obtaining compensation for that damage. This case is significant in two respects: the Court of Appeal afforded children the right to complain about decisions taking them into care, thus, in essence, overturning the House of Lords decision in X v Bedfordshire.2 Secondly, in the ECtHR, the parents were afforded redress, in confirming that the refusal to allow parents to argue their case in the domestic courts where Article 8 is engaged is a breach of their human rights in contravention of Article 13 of the Convention.
http://medlaw.oxfordjournals.org/content/17/2/282.extract Abstract:
This is the text of a talk given by Keith Findley as part of the Integris Law & Medicine Lecture Series at Oklahoma City University School of Law on September 27, 2011, with commentary by Dr. Patrick Barnes, Professor David Moran, and Professor Carrie Sperling. The talks address controversies that have arisen in the past ten or twelve years over the diagnosis Shaken Baby Syndrome (SBS) (now known also more expansively as Abusive Head Trauma (AHT)) and prosecution of individuals based on the hypothesis that the child was injured or died after an adult caregiver violently shook the child. The talks examine the science-dependent nature of prosecutions (or child removal actions) based on the shaking hypothesis, as well as emerging controversies from new medical research about whether shaking can cause such injuries and death, at least without causing extensive neck and cervical spine injuries; whether the indicators previously attributed almost exclusively to shaking -- such as subdural hematomas and retinal hemorrhages -- are indeed diagnostic of abuse; whether other causes, both natural and accidental, can mimic abuse and lead medical professionals astray; and whether the onset of clear neurological impairment can reliably be timed to the infliction of injuries so that the medical science can be used to identity the perpetrator (assuming there was one). This talk examines how the legal system is being called upon to re-examine SBS convictions in light of this evolving medical science.http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2159707 |