Another Step Away from Bad Science – a Review of the History and Science of “Shaken Baby Syndrome” in People v. Rene Bailey (December 16, 2014, Monroe County, NY)

In the early '90s, in my hometown of Rochester, N.Y., there was a rash of "Shaken Baby" cases, in which it was alleged that the defendant had violently shaken a young child, causing injury or death.   From that time to the present, "Shaken Baby Syndrome" (sbs) was used to explain the deaths of young children who displayed a number of physical characteristics – primarily retinal hemorrhaging, brain swelling (cerebral edema) and certain types of brain bleeding.  The medical "experts" claimed the injuries could only be caused by deliberate, intentional conduct – and always ruled out the possibility a fall was to blame.  The experts were wrong. 

Although the symptoms would develop over time, the caretaker who was with the child last was often the one charged.  Explanations that the child fell were discounted.  Parents who lost a child were shunned and blamed.  As with arson cases, flawed science led from an erroneous conclusion of deliberate causation  to a criminal charge.

Over the last two decades doctors and medical examiners paraded into court explaining one could not know how much force was necessary to cause the injuries attributed to sbs but (sadly shaking their heads) testifying this was clearly such a case, stating, "Obviously,  we cannot experiment on young children, can we?"  Although their testimony was unscientific, they were excused because it was believed that they would not testify about such a diagnosis if it were not true.  They were doctors, and doctors would not get this wrong, right?  Many people, including young parents, babysitters, old grandparents and daycare providers were convicted. These cases were being prosecuted across the country.  Prosecutions often involved well-meaning, overly zealous prosecutors and doctors. 

Long ago I handled one of these murder cases, and had the opportunity to observe the prosecution "expert" testify in another case before mine was tried. This doctor, B.G., was asked about the nature of the force used when shaking a child.  He quickly picked up the bible used for swearing witnesses, raised it high, and slammed it against the wood in the witness box.  Everyone jumped as some undoubtedly pictured a child being similarly treated.  And the idea for  one of several motions in limine took form.  At that time research and preparation involved many trips to the local medical school library.  (Interestingly, it appeared that the doctor had never read much of the literature that existed at the time of the first trial in my case.  He had by the second.)

Forensic science has been under scrutiny in the last several years, and advancements have laid waste to claims of identification based on hair comparisons, bite marks, tool marks, serology and shoe prints, to name a few.  See here and here.  The "science" of arson investigation has been subject to critical review and revision.  

And finally, after two decades of prosecutions of "Shaken Baby" cases, courts are starting to scrutinize these cases as well. 

In December, two convictions based on "Shaken Baby Syndrome" were reversed.  One was in Mississippi, the case of Steven Hayne.   

The other was in my hometown.  In a proceeding challenging the conviction, the attorneys for Rene Bailey (from the New York Law  School Post-Conviction Innocence Clinic) sought and were granted a new trial, alleging among other grounds that the developments in science rendered the verdict unreliable. In a 28 page decision, Monroe County Court Judge James Piampiano detailed the testimony of scientific and medical witnesses, contrasting the science in the past with what is known now.  His review and analysis should be a starting point for a defender handling one of these cases, as a guide to the science, the medicine, the arguments, possible other causes for a death or injury with these physical symptoms, and even a list of potential experts or consultants (including and especially Ms. Adele Bernhard).  It is another tool to add to your arsenal when handling these cases, whether challenging shaken baby cases as they are charged today, or challenging convictions based on the erroneous claims made by "experts" in the past.