Editor's Comment: In Pursuit of Truth - By Sarah Roland

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Saturday, April 28th, 2018

April was National Child Abuse Prevention Month. I’ve often wondered what month is National Exoneree Recognition Month (or some other synonymous title). Make no mistake, child abuse, in any and every form, is wrong and despicable. But what happens when an innocent parent or caregiver is wrongly accused, prosecuted, and convicted? We know it happens. It especially happens in the context of child abuse when everyone’s emotions naturally tend to outweigh reason, facts, and logic. Shaken Baby Syndrome (SBS), rebranded now as “abusive head trauma” (AHT) or “non-accidental head injury” (NAHI), is perhaps one of, if not the, most difficult cases to defend. There are no winners no matter the trial verdict. A baby has died. At best, the grief process can begin.

SBS has been termed “The Next Innocence Project.” Deborah Tuerkheimer, The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts, 87 Wash. U. L. Rev. 1 (2009). Available at: http://openscholarship.wustl.edu/law_lawreview/vol87/iss1/1. That terminology, by a former prosecutor, Tuerkheimer, is no mistake. Nor is the title of a new book on the subject matter, The Forensic Unreliability of the Shaken Baby Syndrome (2018). The book was written by a lawyer, Randy Papetti, and edited by a forensic pathologist, Dr. Chris Milroy. The book is a primer for anyone involved with or trying these types of cases. It addresses all aspects of the SBS debate.

The book isn’t so long and dense that it will just collect dust on the shelf. This book is readable and well organized. It’s manageable and understandable even for the person who hasn’t defended or researched a shaken baby (SBS) case. It also contains an appendix of diagrams and pictures that is especially helpful to understanding the relevant anatomy and pathology. For the reader unfamiliar with SBS, it would be helpful to start with the appendix for a visual understanding of the arguments to come in the book.

While it would certainly be advantageous for the reader to have a basic working knowledge of the genesis and metamorphosis of SBS before reading the book, the book does a thorough job of detailing the same. The book is divided into chapters and subchapters that make it easy to locate the precise subject matter sought. For instance, in Chapter Two, “The Origin and Rise of Shaken Baby Syndrome,” there is a subchapter which includes a summary of SBS beliefs as of 2001 and a detailed discussion of the same. Chapter Three, “The Challenges,” details the abundance of problems SBS has encountered by biomechanical engineers and forensic pathologists. SBS is necessarily intertwined with and reliant upon biomechanics since the premise involves acceleration/deceleration forces. The book explains how the biomechanical science does not, and has never, supported the premise of SBS—and how it’s without scientific basis to equate SBS forces to an unrestrained car accident or a fall from a multi-story building (as is commonly done by medical doctors in SBS cases). The problem, as Papetti notes, is this:

Pediatric doctors, however, typically have little to no training or experience in measuring the forces a human endures during particular trauma, or determining what injuries predictable will result from such trauma. There are experts in this area (p. 81) [emphasis in original].

After detailing the genesis and rise of SBS and identifying challenges to it, the book implores the judiciary to exercise greater judicial oversight on these cases. The chapter goes step-by-step through a Daubert analysis in an SBS case. As Papetti notes:

Amidst the whirling controversy, judges preside over the trials and issue the decisions, opinions, judgments, and sentences that rely on SBS testimony. Yet, to date, judges have mostly been passive participants in this controversy. They have largely just treated the issue as a battle of the experts. It is apparent that greater judicial oversight is necessary to prevent continuing injustice (p. 256–257).

Papetti is correct. If the pursuit is for the truth, everyone must do their respective part. No one should be simply a “passive participant” (an oxymoron, to be sure), and no one should be blinded by the emotion of the subject matter, hard as it may be. Papetti is equally critical of all players. Doctors must be loyal to the forensics. We, as criminal defense lawyers, must do our part in relentlessly challenging bad forensics wherever it may rear its ugly head. Prosecutors must always strive for justice above a conviction. And judges must be active gatekeepers. No one can fail in these endeavors if the pursuit is for the truth.

It is both the organization and substance of this book that make it uniquely valuable in these types of cases. I wish this book had been available for the SBS cases I have tried. It would have been infinitely helpful. The book is well documented and richly sourced. It contains footnotes for the articles relied upon by both sides of the aisle. Simply put, the source material in the book alone warrants picking up a copy.

In reading this book I was reminded of what the lead detective repeatedly told my young, unknowing client in the second SBS case I tried: “science doesn’t lie.” Indeed, it does not, and thankfully it did not in that particular case. But science can be distorted, manipulated, perverted, and corrupted. So, if the pursuit is for the truth, then reading this book is a must.

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The forensic community lost Dr. John Plunkett, a great pioneer in the forensics of shaken baby syndrome this April. Dr. Plunkett is responsible for disproving the SBS dogma that pediatric short falls cannot cause the SBS triad or death. See John Plunkett, Fatal Pediatric Head Injuries Caused by Short-Distance Falls, 22 Am. J. Forensic Med. Path. 1 (2001). He, too, was an advocate for the science who worked in pursuit of the truth.