How It Began
When my District Attorney lost his election in 2015, I considered myself extremely fortunate to secure a position with Sussman & Associates and to have an opportunity to learn from renowned Civil Rights Attorney Michael Sussman.
In addition to being a brilliant attorney, Mr. Sussman has a deep commitment to public service. It was through one of his Empowerment Centers that I encountered the pro bono case that would shape the following two years of my life.
Mr. Sussman asked me to attend the first day of a trial because a young father had pleaded for our help. Only in passing did he mention that it involved a Shaken Baby Syndrome allegation, and it was obvious that he was sending a former prosecutor to the trial because he wanted a critical eye before considering representation.
At the time, Shaken Baby Syndrome was, to me, just an accepted fact. I knew that new mothers had to watch a video about it before discharge from the hospital, and growing up with a gastroenterologist/infectious disease specialist mother and neurologist father, I had no reason to question the medical establishment.
Through that filter, I observed trial day 1 in a rural community’s Family Court.
Absence of Justice
The court came to order for only a few moments before the judge started hammering defense counsel, who had previously filed an unsuccessful motion to withdraw, and who had now untimely served expert notice, untimely sought expert fees, and according the Department of Family Services was misrepresenting the facts to the court.
The court denied the father’s request for experts as well as for expert fees. When the parties proposed a consent finding without admission of abuse or neglect, the Court rejected that too, saying that he would require an admission of abuse and neglect and an admission by the father that he did something wrong that caused injury to the child.
When his attorney said that he understood that the father’s going to have to acknowledge something happened the father, through tears, softly told the court, “I’m not acknowledging guilt to my daughter.” The Court announced that the father’s position was clear and that the trial would begin.
When defense counsel asked for a brief recess, we all went into the hallway, where, even through the conference room doors, we could hear the defense attorney’s frenzied diatribe leveled at his client.
The inadvertent eavesdropping was shattered when they left the room and the father, in tears, came up to me, saying, “Please, I don’t know what to do. I didn’t hurt my daughter and this guy is telling me I have to admit to it because I’m going to be railroaded, but I didn’t hurt my daughter, I would never hurt my daughter.”
I explained that I didn’t represent him and could not advise him legally, but that I would observe and make recommendations afterwards to Mr. Sussman. He cried harder and said, “But what if he tells them I want to take a plea when I don’t?” I told him that he should speak up if his attorney misunderstood or mischaracterized his position.
Court reconvened, the defense attorney told the court that the status hadn’t changed and he guessed they would be going forward. And so they did.
It was a grim start to the trial for this young father.
Anxiety abounded as I sat as a backseat driver to a trial in which I had no say but in which I desperately wanted to intercede because of what I was observing. It seemed to me that this father was right: regardless of the merits, he was indeed being railroaded, not only by the Department but also the Court and his own attorney. When the court adjourned for the day, I couldn’t get back to my office fast enough. Guilty or innocent, he deserved a fair trial.
Former Prosecutor Turned Defense Attorney
To Mr. Sussman’s surprise, this career prosecutor came back and reported that this father did, indeed, need our help, and that we should undertake his defense.
I substituted in as counsel and worked furiously to prepare. For a young man, the father had devoted tireless effort to understand what had happened to his daughter, how to care for her, how to exonerate himself, and how to extricate his family from the horrible nightmare into which their lives had turned.
The Tale of Two Heathers
Fortunately, he had, through his research, found attorney Heather Kirkwood, an expert in shaken baby cases who often worked with the Innocence Network, and she had agreed to assist. It was due to this serendipitous contact, that the case Heather Kirkwood and I affectionately call, “The Tale of Two Heathers,” began.
I dove into the medicine headfirst. My parents reviewed the films and medical reports, and I recounted the father’s recitation of the facts: His wife had taken their toddler son to have dinner with her family for the evening, and he stayed home with their infant little girl. Early in the day, he videoed them playing together. Later he fed her, burped her and put her in her bouncy chair while he washed bottles.
Suddenly, his baby girl spit up and began making gurgling sounds. He immediately unstrapped her, wiped her mouth and tried to clear it, but she appeared to be struggling. When he picked her up, her eyes rolled back and her body became rigid, then went flaccid. He was concerned she might not be breathing, so he began mouth to mouth and chest compressions. Thick formula oozed out of the side of her mouth (her pediatrician told them to add baby rice cereal to her formula to combat the projectile vomiting she had exhibited repeatedly over the first four months of her life), and when he pressed on her chest, her diaper began to leak with feces.
His baby girl remained unresponsive
Living in a rural community, this father knew how long an ambulance might take, so he ran next door to his neighbor, who was a nurse. She quickly assessed the baby and continued CPR. They called 911 for an ambulance, but the only arrival was an EMT, who was driving her own car and had only adult-sized equipment. The EMT drove to the nearest small community hospital with the nurse continuing CPR in the back seat.
Malpractice upon Malpractice
No doctor was on duty at the hospital. The physician’s assistant suspected sepsis (widespread infection) and dosed the baby with heavy-duty antibiotics. Unbeknownst to all at the time, the baby was also misintubated, partially depriving her of much-needed oxygen while her belly and not her lungs was filled with air. When a helicopter arrived to take her to a larger medical center, the medical personnel knocked the tube out, and she was, again, misintubated.
At the larger medical center, the baby continued to be misintubated. Radiographic films revealed chronic (old, probably congenital) fluid with very small amount of blood in the subdural space, a blood clot (venous thrombosis – a type of stroke common in infants) in the sagittal sinus (the large vessel that divides the two hemispheres of the brain), a stroke in the baby’s cerebellum (a well-hidden part of the brain that is involved in many functions, including balance) and what appeared to be a hypoxic-ischemic brain (a brain that had been deprived of oxygen). Later, retinal hemorrhages were seen in both eyes.
It was these findings that led the doctors to call in a Child Abuse Pediatrician, and a family was turned upside down.
Fallacy of Shaken Baby Syndrome
Shaken Baby Syndrome has three elements, colloquially called the triad. Those elements are (1) subdural hematoma, (2) encephalopathy (findings related to the brain) and (3) retinal hemorrhages. This triad has served for decades to convict people based upon the theory that when these three findings are present and the parents cannot explain them, it can be assumed that the baby was shaken.
Having chosen a career in law and not medicine, I asked my parents what they thought about this theory as it applied to this case. To my surprise, they said rather bluntly, “That isn’t science.” “You cannot presume an outcome, because you will create confirmation bias and just look to justify your preconceived belief.”
Rather they explained, you have to see whether the facts as provided are consistent or inconsistent with the medical evidence, and does the medical evidence provide any insight into what happened. Both of my parents noted findings in the radiology and/or medical records that suggested a medical cause, rather than trauma.
Experts Who Tell the Truth
With this background, I set out to Baltimore to learn pediatric neurology from Dr. Joseph Scheller, who with no notice whatsoever and no promise of payment, warmly invited me to his office, went through all the films and gave me his assessment.
It was clear to Dr. Scheller that the facts and medicine perfectly explained what had happened to the baby. The baby had no concerning marks, no fractures or bruises, no injury to the neck – no sign of abuse or trauma whatsoever. Her steadily increasing head size from birth was evidence of
a chronic condition that resulted in projectile vomiting and placed her at risk of neurological impairment. This condition was confirmed in the radiology images and reports.
Further, he explained, “The father’s recitation of facts is completely consistent with the medical evidence that shows the baby had a large clot in the sagittal sinus (the large blood vessel that runs from front to back across the brain, dividing it into two sides). Blockage of such a major vessel, forcing blood into smaller vessels not designed for that much blood flow caused her veins to leak. The blood that leaked irritated the surface of the brain, causing a seizure, which in a baby would look just like the father described with her body going rigid and eyes rolling back.” The seizure caused her to stop breathing and her heart to stop, depriving her of oxygen. This went on far too long due to the misintubations, resulting in a hypoxic-ischemic brain and contributing to the large cerebellar stroke.
The baby’s health became even more dire when an E. coli infection that had been brewing in her body manifested in two huge empyemas (big pus filled abscesses on her brain) that had to be surgically drained. The surgeon noted that the empyemas were striated with layers of old collections plus a layer of fresh pus indicating active infection, suggesting that the antibiotics given at the first hospital and to a lesser extent the second suppressed but did not fully eradicate an infection.
A Picture is Worth a Thousand Words
My head spinning with medical revelations, I headed back to the office only to leave again to meet with Harvard Medical School trained pediatric radiologist Dr. Julie Mack, who offered her time and expertise without charge as a service to her profession.
Thank goodness she did, because a picture is definitely worth a thousand words. Dr. Mack explained that in radiography the brightness of the blood clot can be used to time how long the clot had been there, and conclusively established that the clot was at least 1-2 days old at the time of the collapse. This was significant.
The baby’s mom had reported that the baby had been fussy for the two days leading up to the collapse – but since fussiness is common with infants (and particularly with this second baby), she didn’t have cause to suspect its significance.
Dr. Mack also explained the radiology images. She showed how the blockage in the sagittal sinus caused the blood to retreat to smaller vessels not meant to accommodate that volume of blood, putting the entire venous system under pressure. She showed how the complex of vessels behind the eye was lit up with blood like a Christmas tree, undoubtedly causing the pressure and leaking in the retinal vessels. Similarly, the dura was bright white with blood flow and had likely leaked, accounting for the very small subdural hematoma. Dr. Mack went on to explain how there were other clots throughout the venous system and how the long period of deprivation of oxygen explained why some regions of the brain were not rebounding.
Significantly, Dr. Mack reiterated my parents’ concern for science prevailing. She explained succinctly that medicine has no need for presumptions and theories when medical facts are available.
Trial by Fire
I returned home with only days to prepare for the cross-examination of the Department of Family
Service’s expert. I read voraciously, and Heather Kirkwood and others showed me what felt like a never-ending litany of research and articles.
However, I wasn’t content to risk biased sources, pulling only research provided by others, particularly those provided by defense counsel or even Innocence Network attorneys. In addition to these sources, I compiled my own, and began to digest what had happened.
What I saw in the literature and case law could not be unseen. I took the proverbial red pill – the pill that represents knowledge, uncertainty and harsh reality – and was struck by the brutal reality that many good doctors and lawyers who had dedicated their lives to keeping children safe were actually wrongfully tearing families apart because they were relying on bad science. The proponents of the Shaken Baby Machine – as I call it – were content to take the blue pill – the pill that represents security, absolute confidence and the blissful ignorance of illusion, even when wrong.
Dodging the Law
The traditional triad was presented, challenged under Frye and Daubert the legal standards meant to ensure only reliable science is presented in court and it was found reliable many years ago. However, as science advanced and research progressed, experts in the field of biomechanics demonstrated that the force necessary to cause the triad, as described in the shaken baby hypothesis, could not be generated from shaking alone. More importantly, over the years, forensic pathologists and others established that the triad findings are found in a wide range of conditions, including accidental falls and natural disease processes.
Rather than accept that this research showed that Shaken Baby Syndrome was unreliable, and certainly not reliable enough for someone to rely on these three findings to presume shaking – the Shaken Baby Machine altered its theory but bootstrapped case law from the old theory to smuggle this new theory into courts without being subject to a new Frye or Daubert analysis.
The new theory added the possibility of a fourth element – impact – to the traditional triad. However, to account for all of the prior and ongoing cases that had no evidence of impact whatsoever, they added the concept of “soft impact.” A violent throw onto a soft surface like a bed or couch. Once again, this was posited without any evidence that soft impact could cause these findings, let alone that these findings were diagnostic or even suggestive of abuse. This new theory was called Abusive Head Trauma, and despite being a separate and novel theory, it was treated as though it was synonymous with Shaken Baby Syndrome.
Keeping Children Safe Means Not Falsely Accusing Parents
No one wants anyone to harm a child. Similarly, no one wants innocent people being falsely accused, convicted, or worse, sentenced to death based upon bad science. The truth is that the triad findings may be present in children who have been abused, but they are also present in children who have not been abused.
In fact, there are many, many other medical explanations for the triad findings, and parents freedom shouldn’t have to rely on the diligence and knowledge base of a random child abuse pediatrician – a doctor’s inability to make a tough or rare diagnosis should not subject an innocent person to a presumption that they abused their child. Especially, not in a case like mine, where there were clear medical reasons for the baby’s condition.
My revelations didn’t stop the trial from going forward. No one would listen to reason. No one would sit down with me and see the films and scientific evidence. Worst of all, even when it was all presented to the court, the decision that was rendered disregarded the facts in the record. No one wanted to speak about finding the truth. They didn’t need the truth; they could rest on a presumption.
When I formed my own firm, this father and his appeal came with me with Mr. Sussman’s blessing – he knew how invested I had become in the matter, and continued to offer his office’s support. The tale of two Heathers continued.
I accompanied Heather Kirkwood to a Shaken Baby Conference in Montreal, listened to lectures by leading proponents of the shaken baby hypothesis (renamed abusive head trauma), and had the great pleasure of briefly meeting Barry Scheck, Keith Findley and others. Ultimately, we were fortunate to have the support of the Innocence Network, which submitted an Amicus Brief on behalf of the father.
Eric Kuperman, of The Printing House Press, was kind enough to listen to the story of this pro bono case of a lifetime and offered me discounted printing since this appeal was one of the first cases my firm undertook. Without his kindness, I’m not sure how I ever would have bound and created the over 5000-page record for the court, or completed all of the copies of the 100 page brief.
Justice Shouldn’t Have a Price Tag
The quality of justice people receive should not depend on the quantity of their income. Every person deserves an attorney to fiercely advocate for them. Of course, we can’t do every case without charge or we won’t have the money to pay for things like transcripts and filing fees, but I encourage every practitioner, as a service to our profession, to give back by accepting pro bono assignments, and giving their pro bono case 100 percent, as though that person were a million dollar client.
I also encourage every prosecutor to remember that doctors, like lawyers, don’t always get it right. With two doctors for parents, I had a leg up because I was steeped in medical jargon my whole life, but regardless of one’s background it’s a prosecutor’s job to seek justice, not just to secure convictions. It’s your responsibility to ensure that your experts are presenting the science accurately. Hold your experts to their task, learn the science, and search for the truth.
What I learned down the rabbit hole of Shaken Baby is that medicine, like law, changes every day, and that if we aren’t diligent and skeptical, innocent parents will be torn from their children, innocent people will be put in jail, and in some jurisdictions, innocent people will be put to death. The costs to families are also high – in this case, too high to even begin to describe in a single article.
There Still Are Some Happy Endings
Fortunately, this story has a happy ending, while many don’t. My client was exonerated by the appellate court, the highest court rejected the County’s attempt at further appeal, and the father was reunited with his wife and children.
I challenge every attorney to ask themselves what they would do if they were falsely accused of abusing their children and their future and family were being destroyed by a legal presumption, rather than evidence? When you arrive at that answer, consult your conscience, and act accordingly.