Flawed Convictions - Shaken Baby Syndrome - and The Inertia of Injustice-Oxford University Press (2015)

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indd ii 1/29/2014 8:18:48 PM

F L AW E D C O N V I C T I O N S
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FLAWED
CONVICTIONS
“Shaken Baby Syndrome” and
the Inertia of Injustice
Deborah Tuerkheimer
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Library of Congress Cataloging-in-Publication Data

Tuerkheimer, Deborah, author.
Flawed convictions : shaken baby syndrome and the inertia of injustice / Deborah Tuerkheimer.
p. cm.
Includes bibliographical references and index.
ISBN 978-0-19-991363-3 ((hardback) : alk. paper)
1. Child abuse—Law and legislation—United States. 2. Shaken baby syndrome—United States.
I. Title.
KF9323.T84 2014
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Printed in the United States of America on acid-free paper
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For my parents, Barbara and Frank
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CONTENTS
Acknowledgments ix
Introduction xi
1. A Medical Diagnosis of Crime 1

A Simple Diagnosis 5
The Prosecution Paradigm 7
The Lure of Blame 13
2. Complications 17
Scrutiny 17
The New SBS 20
Doubtful Convictions 27
3. The Triad Endures 31
Today’s SBS 31
Child Abuse Specialization 34
Prosecutorial Certainty 37
Staying Power 42
4. Trials 45
Deciding Guilt 46
Case on Trial 49
5. Missed Diagnosis 67
Diagnostic Error 70
A Legal Perspective on Differential Diagnosis 75
Anatomy of a Missed Diagnosis 82
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viii • Contents
6. Confessions 97
Non-Confession Confessions 97
Unreliable Confessions 99
Inside the Interrogation Room 105
7. Fluky Justice 127
Acquittals 128
Dismissals 145
No-Arrest Cases 150
8. Guilty Pleas 159
A System in Flux 160
When Innocents Plead Guilty 163
Case Studies in Lopsided Pleas 165
The Meaning of Lopsided Pleas 171
9. The Limits of Judicial Review 173
Sufficiency Challenges 173
Collateral Attack 181
10. Reform 195
Improving Medical Outcomes 195
Upstream Innocence Protection 197
Downstream Innocence Protection 207
Notes 219
Index 291
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ACKNOWLEDGMENTS
Years ago I began researching what would eventually become this book. Since
then, I have had many, many conversations with doctors, prosecutors, defense
attorneys, and post-conviction lawyers about the diagnosis of Shaken Baby
Syndrome. Each of these conversations informed my thinking, and I am
grateful to all who took the time to share their insights.
Readers of earlier versions of this manuscript provided enormously
helpful comments. Thanks to Susan Bandes, Stephanos Bibas, Ed Cheng,
Keith Findley, Brandon Garrett, Samuel Gross, Richard Leo, Andrea Lyon,
Julie Mack, Jennifer Mnookin, Song Richardson, Waney Squier, Barbara
Tuerkheimer, and Frank Tuerkheimer. When I was still conceiving the book,
Ronald Allen, Thomas Bohan, Judge D. Brock Hornby, Heather Kirkwood,
and Maurice Possley were kind enough to offer suggestions, as were my for-
mer colleagues at the University of Maine School of Law.
For help obtaining transcripts and other case materials, I thank Mark
Baker, Patrick Blegen, James Bradshaw, Christine Cave, Janeen D’Angelo,
Lindsay Evans, Jodi Garvey, Teresa Gracias, Seth Hutton, Carol McCracken,
James Mertes, Michael Nelson, Douglas Peters, Diane Redleaf, and Melissa
Staas. Their encouragement along the way was also much appreciated.
My earlier writing on the subject of Shaken Baby Syndrome appeared in
the Washington University Law Review (2009) and the Alabama Law Review
(2011). I am grateful to the student editors for publishing these articles, and
to the New York Times (especially Mary Duenwald) for printing my op-ed on
the subject. From the beginning, and to the end, my research was facilitated
by Christopher Knott, friend and law librarian extraordinaire.
DePaul University College of Law and Dean Gregory Mark supported
my writing in every possible way. Walt Baumann was unfailingly responsive
as I bombarded him with requests of the library. Lawrence Arendt read the
manuscript closely and with the greatest sensitivity, more than once. Michelle
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x • Acknowledgments
Cass, Courtney Mathews, Timothy Richard, and Kyle Simcox provided truly
outstanding research assistance.
Early chapters were presented at the UCLA School of Law Program on
Understanding Science, Technology and Law (PULSE); the University of
Iowa College of Law Faculty Speaker Series; the Loyola University Chicago
Law School Faculty Speaker Series; and the Northwestern University Law
and Psychology Colloquium. On each occasion, I received excellent feedback.
I thank Jennifer Gong for her editorial assistance, Alden Domizio for his
guidance through the publication process, and all those at Oxford University
Press whose work improved the manuscript. I also thank Michelle Lipinski,
who was there at the start.
This project would have stalled long ago were it not for family and friends
willing to talk about these tragic cases and their meaning for criminal jus-
tice. In particular, heartfelt thanks to Heidi Kitrosser, Nichole Williams
Miller, Jennifer Nicholson Paskus, Todd Smith, Alan Tuerkheimer, Barbara
Tuerkheimer, Frank Tuerkheimer, and Kimberly Wasserman. Andrew Gold,
Cynthia Ho, Bobbi Kwall, and Mark Weber were always eager to talk about
the writing process.
Throughout, Norman Guthkelch has inspired me with his integrity and
wisdom. So, too, have I been inspired by the courage of the wrongly accused.
Finally, to Dylan, and to Max and Leo, my gratitude is boundless.
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INTRODUCTION
con·vic·tion*
/kənˈvikSHən/
Noun
1. A formal declaration that someone is guilty of a criminal offense,
made by the verdict of a jury or the decision of a judge in a court
of law;
2. A firmly held belief or opinion.
A woman who spent over a decade in prison for shaking a baby

to death, all the while proclaiming her innocence, watched her
conviction at last unravel. The science thought to prove guilt had
advanced, said an appeals court, raising doubts about whether the
woman, Audrey Edmunds, had done anything whatsoever to harm
the baby. It was 2008 when she was freed.
In their standard formulation, Shaken Baby Syndrome (SBS)
prosecutions rested entirely on the claims of science—which
meant, as a practical matter, that they depended on the testimony
of medical experts. Doctors came to court and explained that, not-
withstanding the absence of any other signs of abuse, shaking could
be proved by three neurological symptoms: bleeding beneath the
outer layer of membranes surrounding the brain, bleeding in
the retina, and brain swelling. The relationship between these
three symptoms—“the triad”—and shaking was described as
pathognomic, meaning that shaking was the only causal explana-
tion possible. The science could also rule out an accidental jostle,
given how forceful the shaking must have been to generate these
injuries. The science could even identify a perpetrator—the care-
giver last with the lucid baby—since the infant’s loss of conscious-
ness would necessarily have been immediate. Remarkably, the
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xii • Introduction
state could present the testimony of doctors and use it alone to establish the
guilt of the accused.
SBS was a prosecution paradigm, a category of cases involving functionally
similar facts. Edmunds’s case fell squarely within this paradigm. Her trial took
place in 1996, when SBS-based charges were becoming increasingly common.
The caregiver consistently maintained her innocence. No witness purported
to have seen her shake the baby. There were no apparent indicia of trauma.
Yet solely on the basis of expert testimony regarding the triad, Edmunds, a
mother of young children, was found guilty of reckless homicide. The triad
convicted her, and she was sentenced to eighteen years in prison.
In the intervening decade, SBS diagnoses proliferated in the United States.
Over 1,000 new cases were identified each year, and an unknown number of
suspected perpetrators were sent to prison.1 A new crime model, one fully
constructed by science, had emerged. This development prompted no real
scrutiny—a failure best appreciated in retrospect. Because the science that
underpinned SBS was viewed as unassailable, few questioned whether the crim-
inal justice system was functioning as it should. Those who bothered to notice
that guilt was being proven in an unprecedented manner might well have mar-
veled at the wonders of scientific understanding and its utility for prosecution.
After Edmunds, however, doubt suddenly loomed large. In a case represen-
tative of the category, a conviction was undone because of changed science.
According to the Wisconsin appeals court, “a shift in mainstream medical
opinion” undermined the validity of the diagnosis, posing the distinct possi-
bility that Edmunds, who was still in prison, had done nothing whatsoever to
harm the baby. Without the science upon which her conviction fully rested,
there was good reason to believe she was innocent.
The opinion received little attention at the time, and Edmunds’s victory
went mostly unnoticed. When I happened upon the decision, it was the first
time I had thought about SBS since my time as a prosecutor in New York
County. During my years in the District Attorney’s office, I handled, among
other crimes, child abuse investigations, including allegations of shaking.
I had been taught that classic SBS cases fit a pattern—a pattern epitomized
by the facts of Edmunds. I read the court’s decision to vacate the caregiver’s
conviction in light of my prosecutorial experience, and I was struck by its
potential significance.
The criminal justice implications were staggering. The mainstream medical
rethinking recognized by the court could not undermine this one conviction
without undermining the convictions of others whose cases also depended
on the triad. If the Edmunds court was right in its assessment—as I would
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Introduction • xiii
later conclude—a great number of cases, likely many hundreds, would need
to be revisited. Science and law had been commingled, and science then pro-
gressed; the law would now need to adjust by unwinding itself. A categori-
cal challenge of this nature had never before confronted our justice system.
Edmunds seemed positioned as the impetus for a massive institutional effort
to correct error. The question would be how best to accomplish this feat.
Or so I thought. Instead, the story of SBS has turned out to be far more
complicated. It is not an account of systemic self-correction, at least not yet.
Rather, the account exposes a criminal justice system ill equipped to vet medi-
cal expertise, and even less capable of reversing direction to undo mistakes.
Throughout the process—from prosecutorial decisions, to evidentiary rul-
ings, to judicial review—we see a drive to push forward rather than revisit.
A diagnosis of SBS sets in motion systemic confirmation, first in the clinical
realm, and then the legal. The course of injustice is almost immovable.
But it can be moved. In the years since Edmunds, I have tracked the criminal
justice system’s response to SBS. I have gathered published and unpublished
judicial opinions;2 collected media accounts of arrests and case outcomes in
the hundreds; assembled hearing and trial transcripts; and spoken with doc-
tors, prosecutors, and defense attorneys, all in an effort to understand how
allegations of shaking are being resolved, and why. To be clear, my findings are
not quantitative. Rather, they are based on years of assembling what I believe
is a fairly comprehensive picture of our criminal justice system’s treatment of
the SBS triad. What I describe throughout the book should be viewed against
this backdrop.
The picture is limited in a number of ways. First, I focus on triad-only
prosecutions, rather than those involving medical evidence of abuse apart
from the triad. Cases involving the three classic neurological signs (or two of
the three) constitute the SBS archetype, and they arise with frequency. Other
fact patterns occur too, but they warrant separate consideration.
Second, I do not attempt to depict a worldwide response to SBS. Too
much of this account is bound up in American law and society; as we will
see, there are particular reasons for our embrace of SBS and our slowness to
reconfigure the legal approach to it. A look at the United Kingdom, Canada,
Australia, and Sweden would likely suggest that we lag behind greater institu-
tionalized skepticism on the part of other nations. But, again, I do not under-
take this comparison here.
Last, given how the diagnosis impacts child custody determinations, the
family court treatment of SBS merits its own examination. Again, my focus
remains on the criminal justice system.3
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xiv • Introduction
From this perspective, the book recounts the strange career of SBS. It
explains how three neurological symptoms became synonymous with homi-
cide, and why the diagnosis has kept hold of our collective consciousness—
and our law—despite the collapse of the triad’s scientific underpinnings. It
shows how the criminal justice system is primed to stay the course. And it
demonstrates that, even despite these limitations, the course can be altered.
Today, an acceptance of triad-based prosecutions that once was complete
has dissolved—alas, to be supplanted by a distribution of justice that is halt-
ing and unequal, with disadvantage breaking along familiar lines. The book
depicts a system adapting, yet in woefully inadequate ways.
We have yet to confront the cautionary tale of SBS. Though its particulars
are unique, its central themes are universal, raising questions about the work-
ings of justice.4 In this era of DNA exonerations, we acknowledge that inno-
cents are convicted. But we have not grappled with what to do when there
is no test for innocence. Surely science cannot always come to the rescue; at
times, an unyielding faith in its promise may be the very problem.
This is not a story about bad individual actors or any other discrete source
of error. It is instead about how interactions among institutional structures—
in this instance, medicine, law, and culture—can result in flawed outcomes.5
The fate of SBS affirms that good faith alone cannot forestall terrible mis-
takes,6 and that the surest of convictions may not stand in for truth.
Where guilt is supposedly backed by the authoritative declarations of sci-
ence, the challenge for criminal justice is compounded. Because the nature of
scientific knowledge is contingent, it can advance. Our system must better
deal with this eventuality, lest justice be in constant pursuit.
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1 A MEDICAL DIAGNOSIS OF CRIME
In 1971, a British pediatric neurosurgeon named A. Norman

Guthkelch first articulated the hypothesis that would become SBS.1
In a review of thirteen cases of infant subdural hematoma, five
showed no signs of direct violence to the head. Doctor Guthkelch
posited that the reason for this absence of external injury was that
the babies had been shaken, rather than battered. Two of his own
cases were cited for this proposition as well: one involved bruises
where the infant was likely gripped while shaken, and the other an
admission by a mother who had shaken her baby several times in
an effort to help him through an intense coughing fit. Analogizing
to a 1968 study of whiplash in adult rhesus monkeys, Doctor
Guthkelch suggested that subdural hematoma can result when
“repeated shearing strains of one sort of another are applied to
the cranial contents” of a human infant. Even where “only trivial
bruises or indeed no marks of injury at all” were present, he rec-
ommended that doctors “inquire, however guardedly or tactfully,
whether perhaps the baby’s head could have been shaken,” a mode
of discipline apparently not uncommon in England at the time.
A few years later, Doctor John Caffey, an American pediatric
radiologist, published two seminal articles on the “whiplash-shaking
and jerking of abused infants.”2 The first paper discussed
twenty-seven cases thought to involve force that included shaking,
by which Doctor Caffey contemplated “the grabbing and gripping
of an infant or younger child by the extremities or by one leg or arm
and then shaking.”3 In the cases examined, the impact of this kind of
force included bone fractures, lesions, grip marks, and, of particular
note, subdural hematomas. It was “probable,” according to Doctor
Caffey, that “practically all of the small cumulative subdural hema-
tomas which result from habitual shaking remain undiagnosed per-
manently.” The subdurals were there all along, undetected.
Accepted cultural practices were perceived as the problem, and
they would need to change if Doctor Caffey was correct that brain
injury could result from the “ordinary, casual, habitual, customary,
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2 • flawed convictions
repeated shaking of infants.” He concluded with a call for awareness: “The

wide practice of habitual whiplash-shaking for trivial reasons warrants a mas-
sive nationwide educational campaign to alert everyone responsible for the
welfare of infants on its potential and actual pathogenicity.”
In his second paper on what he now called “the whiplash shaken infant
syndrome,” Doctor Caffey attempted to explain an “extraordinary diagnostic
contradiction”—namely, the presence of injury to the brain without other
signs of abuse.4 In the face of an admittedly “meager” data set, he theorized
that whiplash forces could “stretch the brain and its blood vessels,” tearing
“cerebral bridging veins at the fixed sites of their attachments to the walls of
the sagittal sinuses.” Notably, Doctor Caffey did not contend that subdural
bleeding and retinal hemorrhages could only be caused by shaking. Rather,
he offered an explanation for how these signs might result from the applica-
tion of whiplash forces. He once again echoed his earlier call to inform the
public of the dangers of shaking, concluding that “[c]urrent evidence, though
manifestly incomplete and largely circumstantial, warrants a nationwide edu-
cational campaign on the potential pathogenicity of habitual, manual, casual
whiplash shaking of infants, and on all other habits, practices and procedures
in which the heads of infants are habitually jerked and jolted (whiplashed).”
The late 1970s and 1980s were a time of relative quiescence around the
“whiplash shaken infant syndrome”—or, as it would soon be renamed,
“shaken baby syndrome.”5 While researchers continued to explore the sub-
ject, the impact of SBS outside the medical community was marginal. No
comprehensive education campaign of the kind suggested by Doctor Caffey
would take place for almost twenty years.6 In the meantime, the relationship
between SBS and crime was slow to develop.
The first judicial opinion to reference SBS was reported in 1984. (It was
one of only fifteen SBS cases to reach the appeals courts before 1990. As a
point of comparison, consider that the following decade (1990–2000) saw
over two hundred SBS-related appeals, and the next (2000–2010) over eight
hundred.) The defendant, John Schneider, was convicted of involuntary man-
slaughter for shaking his baby daughter to get her attention. “There is very
little dispute as to the circumstances preceding the death of a four-month-old
infant,” stated the court. The case involved subdural hematoma and bilateral
retinal hemorrhages, which was, according to the coroner, “very definitely a
syndrome, the result of a syndrome of a shaken baby.”7
At Schneider’s trial, the testifying pediatrician explained that there
was considerable confusion among experts in the field regarding SBS. His
description of the kinds of force that could potentially bring about the baby’s
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A Medical Diagnosis of Crime • 3
symptoms reflected early understandings of the diagnosis, emphasizing the

possibility of a non-abusive cause. “Many people play with their children and
throw [them] up and down in the air,” noted the doctor, “and there are sev-
eral experts suggesting that that definitely should not occur because it can
cause small areas of brain damage and therefore injure your child. There really
is no real documentation of whether or not a tremendous amount of force
or several episodes can severely damage an infant.” Asked directly whether
the adults who shook their children “understand the ramifications of their
actions in these cases,” the doctor responded, “No. They do not know.” The
theory of the prosecution was that the father had acted recklessly in disre-
garding a risk of serious injury to his baby.
When it first appeared in criminal court, the syndrome was true to its
research origins on the question of force. In a later version, doctors would
claim that the kind of shaking alleged in the Schneider case (much less playful
jostling) could not have caused the neurological injuries that led to the baby’s
death. If a much higher force threshold was required, as medical experts
would come to insist, the state could distinguish between commonplace
conduct considered innocent enough; and violent shaking, which could be
equated with purposeful child abuse and, in cases of death, murder. But, at
the beginning, medical understandings were at odds with this conception.
The early syndrome was a poor fit for criminal prosecution in other ways.
The occurrence of lucid intervals was acknowledged throughout the seminal
SBS articles (though they were not yet referred to by that name). Doctors
were well aware that a baby’s neurological decline could occur over a period of
time, and that the ultimate discovery of a triad did not necessarily mean that
the bleeding had just begun. This recognition—that lucid intervals indeed
exist—is in profound tension with more recent insistence that an abuser can
be identified by the onset of symptoms. When asked, John Schneider told
the pediatrician that he had shaken the baby to get his attention. Without
this admission, even if doctors were correct that the baby’s injuries resulted
from shaking, there would have been no basis for prosecuting Schneider as
opposed to another of the infant’s caregivers.
The equation of the original syndrome with criminality was problematic
in yet another way. If the triad could result only from shaking, and the triad
was present, then shaking must have occurred. The assertion of a so-called
pathognomonic relationship between shaking and the triad would become
central to SBS prosecutions later. But early theories of SBS did not purport to
offer this kind of certainty as to causation. Rather, the original hypothesis was
that the observed symptoms could result from shaking.8 The logical fallacy of
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conflating the two propositions seems fairly obvious, at least in hindsight.9

But for the syndrome to form the basis of a criminal conviction, the triad
would need to take on unambiguous diagnostic significance. Expert testi-
mony that the triad could have resulted from shaking would not prove guilt
beyond a reasonable doubt. This more modest version of the diagnosis would
not last.
In 1992, the National Center on Child Abuse and Neglect funded a

three-year nationwide campaign—the first of its kind—to raise awareness
about SBS.10 As part of this effort, prosecutors around the country were
trained on how to investigate and pursue charges based solely on the triad.
The effects of this initiative proved rather self-sustaining. As more and
more defendants around the country were convicted of shaking babies as
a result of the triad, the presence of these symptoms became a proxy for
guilt. The adult last with the conscious child was identified as the suspect,
who could then be confidently pursued. Continuing prosecutions and
convictions of apparent baby shakers affirmed the validity of SBS. And so
the triad-based crime constructed by the medical establishment became
embedded in our justice system.
The following year, the American Academy of Pediatrics, the leading
organization of pediatricians in this country, published its first official state-
ment about the diagnosis.11 As a starting point, the Academy endorsed a more
reflexive orientation toward diagnosing head trauma. It explained, “Although
physical abuse has in the past been a diagnosis of exclusion, data regarding
the nature and frequency of head trauma consistently support a medical pre-
sumption of child abuse when a child younger than 1 year of age has intracra-
nial injury.” This presumption would remain in effect—officially for almost
two decades, and unofficially for longer.12 The same “medical presumption of
child abuse” would also take on remarkable legal significance as proof of guilt.
On the question of force, the Academy announced in its 1993 policy state-
ment that “the act of shaking/slamming is so violent that competent individu-
als observing the shaking would recognize it as dangerous.” While conceding
that the symptoms might be so subtle that a shaken infant would not be diag-
nosed for some time, if at all, the Academy nonetheless urged that SBS is “a
clearly definable medical condition.” As to what precisely characterized the
syndrome, the guidance was somewhat opaque.13 Central to its description,
however, was the presence of one or more of the three neurological symp-
toms.14 These authoritative pronouncements from the Academy represented
the beginnings of a new approach to the triad.
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A Simple Diagnosis
By the late 1990s, SBS had become entrenched in establishment medicine,
popular imagination, and criminal law. The prosecution of British au pair
Louise Woodward for the death of a Massachusetts baby captivated the
public, increasing the visibility and perceived legitimacy of the diagnosis.15
Along the way, the syndrome was revamped to make convictions a virtual
inevitability.
The medical testimony now established each element of the crime
charged: that the act of shaking caused the infant’s injury or death; that the
shaking was sufficiently violent to evince the mental state required for guilt;
and that the person who shook the baby was the defendant. This movement
toward an absolute diagnosis of crime occurred without corresponding devel-
opments in scientific research, and without attracting much attention. It
would take years—and the proliferation of triad-only convictions—before
the validity of these claims would be subjected to close inspection.16 Until
then, oddly enough, the diagnosis entailed certainty.
This diagnosis, classic SBS, rested on the constellation of injuries now
known as the diagnostic triad—again, bleeding beneath the outermost layer
of membranes that surround the brain (subdural hematoma), bleeding in
the retina (retinal hemorrhage), and brain swelling (cerebral edema). The
presence of the three symptoms—and, at times, just one or two of them—
meant, as a practical matter, that shaking was the only possible causal mech-
anism. Apart from a high-speed vehicle collision or a fall from a multistory
building, only violent shaking—typically quantified as equal to the forces
involved in the high-speed car crash or multistory fall—could bring about
the triad.17
In court, the kind of violence believed to result in SBS was demonstrated
with the aid of baby dolls.18 Grabbing the doll by the shoulders, the doctor
testifying as an expert would shake repeatedly and rapidly, using all available
strength, while the “baby’s” head snapped back and forth in a manner at once
grotesque and frightening. This was no jostle, no momentary lapse in judg-
ment; it was cruel, depraved, and, as conviction upon conviction confirmed,
criminal.
Not only could this rendition of SBS prove the commission of a crime; it
could also identify the abuser. Unlike the original understanding, a lag time
between injury and the onset of evident neurological impairment was now
deemed impossible.19 Because there could not have been a lucid interval, as it
became known, the caregiver with the baby when the baby lost consciousness
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was the only possible culprit. Remarkably, the same diagnosis used to estab-
lish that shaking injured the baby could also determine (and prove in court)
who shook the baby.
Retinal hemorrhages, in particular, had become definitive markers of the
syndrome.20 At times, certain types of bleeding within the eyes were said to
have special diagnostic significance. These patterns might include retinoschi-
sis (separation of the retinal layers), retinal folds (lifting and folding of the
retina), multilayered hemorrhages, or hemorrhages extending to the retina’s
outer perimeter (ora serrata). These claims would vary depending on the case
and would change over time.
Criminal courts readily accepted the classic formulation of SBS, which
was viewed as unassailable. Consider this fairly standard judicial treatment,
from a 1988 case:
The expert witnesses in this case testified that the injuries [the baby]
suffered were characteristic of those suffered by a severely shaken baby
and diagnosed her as suffering from “shaken baby syndrome.” As an
adjunct to that diagnosis, the expert witnesses ruled out the possibil-
ity of her injuries having been suffered by accidental means or from
natural causes. The salient question then is whether “shaken baby syn-
drome,” i.e., the constellation of symptoms that led to the opinion of
the physicians that [the baby’s] injuries were caused by a severe shak-
ing, is a “generally accepted” diagnosis in the medical field. We con-
clude that it is.
...
An excellent illustration of the degree of acceptance is the testi-
mony in this particular case. Six expert medical witnesses testified—a
specialist in pediatric intensive care, a pediatric neurologist, a pediatric
ophthalmologist, and three pediatricians—and all accepted the the-
ory and testified as to the symptoms and causes of “shaken baby syn-
drome.” Not one witness testified that it was not a medically accepted
diagnosis.21
In the 1990s, the new prosecution paradigm proliferated. Based on the

triad alone, doctors would routinely testify to complete certainty regarding
guilt. According to the medical experts, “[t]here was no doubt that the injury
to the baby was caused by a violent shaking.”22 SBS had become a simple diag-
nosis, and one that decisively established guilt. The outcome of triad-only tri-
als was almost assured.
02_9780199913633.indd 6 1/29/2014 1:01:25 PM

For decades, the typical evidentiary record remained much the same. In
2011, a New York court summarized the now-familiar evidence in a standard
SBS trial:
It is undisputed that the victim sustained subdural hematomas, retinal

hemorrhaging and cerebral edema [swelling], commonly referred to as
the triad symptoms indicative of Shaken Baby Syndrome (SBS). The
People’s expert witnesses testified that, in the absence of evidence of
external trauma, those symptoms in a baby can be caused only by shak-
ing the baby with great force. The People’s experts further testified that
there can be no “lucid interval” between the shaking and the baby’s
death or disability. Thus, because the victim lost consciousness while
in the exclusive care of defendant, it was reasonable for the jury to con-
clude that defendant shook the victim, causing his death.23
Although Audrey Edmunds’s conviction had been set aside three years
earlier, triad-only prosecutions that looked much the same kept coming.
The Prosecution Paradigm

For decades, medical testimony regarding the triad has been used to prove
guilt. A representative case from 2005 shows how this is accomplished.
Jennifer Del Prete cared for children throughout most of her life. An older
sibling; an assistant preschool teacher; a nanny; the head of a church nursery;
a youth librarian; a school “room mom”; and, most important, a single mother
of her school-age son and daughter, she was adored by children and admired
by the adults who observed her with them. When a long list of character wit-
nesses would later testify on her behalf, they would consistently remark on
her patience, kindness, and extraordinary way with young people.24
In August 2002, Del Prete began working at a small home day care in a
Chicago suburb, which was owned by a woman with whom she had shared
“room mom” responsibilities. The collapse of a baby in her care occurred just
after Christmas. It was the first holiday ever that Del Prete had paid all her
bills in cash. As she later recalled, “I was proud and relieved and happy. My
children were happy. It was a great week that turned out to be a nightmare.”25
Around noon, four-month-old Isabella awoke from a nap. Del Prete later
told the police that she changed the baby’s diaper and clothes on the couch
and prepared a bottle. When she returned, Isabella’s eyes were half open, her
02_9780199913633.indd 7 1/29/2014 1:01:25 PM

breathing was labored, and her body was limp. Del Prete attempted to revive
her with a slight shake while calling her name and patting her on her back to
dislodge whatever might have been blocking her airway. After an unsuccessful
effort to give the baby a bottle, Del Prete grew frantic and called 911 before
beginning CPR.26
Almost three years later, as the caregiver stood ready to be sentenced for
first-degree murder, she spoke directly to Isabella’s parents:
Isabella was my friend. I loved her, although I knew her only for a lit-
tle while. My kids loved her. We would sit together and smile at each
other. I would comfort her when she cried. I fed her, changed her, and
watched over her safety. I am sorry I couldn’t do more to help this
poor, defenseless baby while struggling to survive. Believe me, I tried
with everything I had. If your mom would have watched her that day,
it could be her sitting up here defending herself for something she did
not do. Or if you would have been with her that day, it could have been
you. I did everything in my power to help your little girl. I did not
snap. It was not in my nature.27
The judge who convicted Del Prete obviously saw it differently, finding
that the medical evidence established guilt beyond a reasonable doubt. What
persuaded the judge that the caregiver had indeed shaken the baby was tes-
timony by a pediatrician qualified as an expert in child abuse. The critical
moment in the trial came during this portion of the pediatrician’s testimony:
THE WITNESS: When you see hemorrhages to the ora serrata [on the perime-
ter of the retina] as in Isabella’s case, those kinds of extensive hemorrhages
are only caused by these acceleration/deceleration forces or seen in shaken
baby syndrome.
THE COURT: Ma’am, did you say only caused by?
BY THE WITNESS: Yes.28
When the judge later explained her reasons for convicting, she specifically
cited this testimony. Since neither the prosecution nor the defense presented
an eye specialist (that is, an ophthalmologist), the pediatrician’s opinion about
the pattern of retinal hemorrhages and their significance was the only word
on the subject. This made a real difference. As the trial judge later emphasized,
“injuries to [Isabella’s] eyes, the testimony before me was that only resulted
from severe shaken baby cases.” Although Del Prete’s version of events was
02_9780199913633.indd 8 1/29/2014 1:01:25 PM

not entirely discounted (“I don’t know if I believe her or whether or not I had
to”), the caregiver was convicted based on the medical testimony.29
Four physicians—Adrian N., Howard H., Emilee F., and Jeff H.—pro-
vided the body of evidence against her. (Because SBS cases follow such a
similar trajectory, their significance transcends the identities of individual
physicians involved in them. To underscore that the cases described are
functionally the same as many more in the category, I have chosen to abbre-
viate doctors’ names throughout the book where they appear in relation to
an SBS diagnosis.) The first to testify was Doctor Adrian N., the intensive
care specialist who treated Isabella when she was brought to the emergency
room. Soon after arriving the baby was given a CT scan. While Doctor
N. did not recall reading the scan, he was told by a neurologist that it
depicted both old and new bleeding in the brain.30 Doctor N.’s testimony
proceeded as follows:
Q: And when you get the [CAT] scan back and you noticed that there is
bleeds, what does that mean to you as the treating physician?
A: Well, it is very significant for a four month old, and obviously you have to
if he is not involved in a car accident or so, you have to assume that it was
a child abuse or baby shaking.31
On cross-examination, Doctor N. explained that the baby’s chronic bleeding

was “probably days or a week” older than her acute bleeding.32
The prosecution next called Doctor Howard H., the pediatric critical care
specialist who saw Isabella when she was transferred to a larger university
hospital in Chicago. In Doctor H.’s opinion, “the most likely” cause of the
bilateral subdural hematomas was that “she was shaken or had some other
accelerating/decelerating injury occur such as being dropped or thrown
or something like that.”33 When asked if he had considered the possibility that
Isabella had suffered an ALTE [Apparent Life-Threatening Event], Doctor
H. said yes and explained:
It used to be called a near miss SIDS. It is a description of an event

that occurs when an infant where there is an alteration in breathing,
most often cessation in breathing or apnea. There is a change in the
patient’s—in the child’s muscular tone. They can become stiff or floppy.
Typically they’re floppy. They have a color change in their skin. They
can become pale or dusky, or rarely or they can be reddish or purple,
and there is usually a frightened caretaker and often an effort at CPR.34
02_9780199913633.indd 9 1/29/2014 1:01:25 PM

Later, still on direct, Doctor H. was asked his opinion about whether
Isabella had suffered an ALTE. He answered:
Well, based on the description of what occurred she had an ALTE,

but what the cause of the ALTE was I don’t know. Was it because she
had a subdural hematoma? I mean that we found. We found subdural
hematoma. We had something that looked like a shaken baby, so . . . so
but whether that was primary, secondary, I don’t know.35
On cross-examination, Doctor H. agreed that in just under half of the

cases of ALTEs, a cause is never established. He also conceded that, if the his-
tory given in Isabella’s case was accurate, all of the indicators of an ALTE were
present.36 And then:
Q: Isn’t it true that you would not be able to medically determine whether
any shaking of the baby occurred before or after the ALTE occurred?
A: I could not.37
Finally, Doctor H. acknowledged that, because Isabella was transferred to

another hospital, he was never able to test her for reflux, which he would have
liked to do given the baby’s history of fussiness and difficulty eating. As he
explained, reflux is a factor that can lead to an ALTE.38
The heart of the prosecution’s case was the testimony of Doctor Emalee
F., the pediatrician and child abuse specialist. Doctor F. was the chair of her
hospital’s Child Abuse Team. Even before Isabella was admitted to the hos-
pital, Doctor F. reviewed the medical records and police report and spoke to
Doctor Howard H. Later, Doctor F. examined Isabella and concluded that
“Isabella had suffered abusive head trauma or also known to many people as
shaken baby syndrome.”39
It was Doctor F. who testified that extensive hemorrhages (“to the ora
serrata”) are caused only by acceleration/deceleration forces. The same was
true, she claimed, of the “extensive subdural hematomas like Isabella had
over extensive areas of the head.” As for the level of force needed for violent
shaking to cause the baby’s injuries, Doctor F. gave an explanation routinely
offered by prosecution experts: “Forces would be so severe that if anyone
witnessed that shaking occurring or someone shaking a child like that, they
would know that that child would suffer severe injury.” Despite the nonsci-
entific cast of this characterization, it did not draw an objection or prompt
subsequent cross-examination.40
02_9780199913633.indd 10 1/29/2014 1:01:25 PM

On the timing question, Doctor F. was certain that the baby’s injuries
would have manifested immediately. The prosecutor asked, “how long would
it take from the abuse to the effect that this caused, the breathing, the typi-
cal signs that you saw that would show you abusive head trauma?” Doctor
F. responded, without elaboration: “They would be immediate.”41
Cross-examination was brief and mostly limited to establishing that the
baby showed no external signs of abuse. No mention was made of the old bleed-
ing that appeared on Isabella’s CT scan. On redirect, Doctor F. suggested that
bruises on a shaken baby are “pretty uncommon.” Asked why this would be the
case, the doctor suggested that “maybe they’re not held that tightly. I would
just have to speculate.” Here, for the first time, she admitted, “I don’t know.”42
Isabella died almost a year after she was brought to the hospital with the
SBS triad. The cause of death was multiple system failure, which, according to
Doctor Jeff H., the forensic pathologist who performed the autopsy, resulted
from abusive head trauma. Microscopic examination at autopsy identified
no evidence of trauma but, based on the opinions of others, Doctor H. con-
cluded that the baby had been abused.43 Doctor H. conceded as much:
Q: Now in reference to the conclusions that you came to since you did not
make any findings yourself as to any trauma on this child, isn’t it true that
you were totally reliant on the medical records?
A: Yes.
Q: And in fact in reference to the conclusion you came to in reference to
the head trauma you relied on Doctor [F.’s] report in particular, is that
correct?
A: Yes.44
This was the end of the medical case against Del Prete. The prosecution
introduced no other experts—not an ophthalmologist, not even a radiologist
(nor an MRI, for that matter). All that remained was the presentation of Del
Prete’s version of events. Though the story she gave to the paramedics and
responding police officers was largely consistent and exculpatory, the state
portrayed the caregiver’s account as helpful to its case, since it did not provide
a satisfactory explanation for the baby’s condition.45
Del Prete also had maintained her innocence throughout a rather aggressive
police interrogation. She consistently denied any rough handling of Isabella.
During a short break, the interrogating detective was told by one of the doctors
that Isabella was “suffering from shaken baby syndrome.” The detective then
returned to the questioning using “a confrontation technique” he would later
02_9780199913633.indd 11 1/29/2014 1:01:26 PM

summarize at trial as, “we believe you were involved in this.” He “did not believe
her statements were consistent with the medical evidence,” the detective told
Del Prete. Having now heard from the doctor, he proceeded to question the
suspect in a manner that was “more direct, more certain” of Del Prete’s guilt.46
She never admitted to violent shaking or, even more to the point, to shak-
ing the baby other than in the course of revival efforts. The most incriminat-
ing statement, according to the detective’s testimony, was that “she [couldn’t]
remember exactly how things took place. It was a very stressful, very pan-
icked situation and . . . she could have shaken [the baby] a little harder than
she thought.” Still, in closing argument, the prosecutor implied that this state-
ment evinced a culpable state of mind.47
But the essence of the state’s case was expert medical testimony that the
triad proved guilt. In the prosecutor’s words, “the injuries are there from the
shaking”; “the only way to get that [kind of retinal bleeding] is from this
rapid acceleration/deceleration”; Doctor [F.] “testified very clearly, the inju-
ries are immediate . . . the effect is immediate.” Because there was old bleed-
ing, the prosecutor speculated (without supporting evidence) that “what the
chronic refers to is they keep happening because the way that her brain was
damaged inside her head due to the defendant’s actions. There was no place
for the blood to go.” In sum, the doctors had no doubt whatsoever.
A number of character witnesses appeared on Del Prete’s behalf. Pursuant
to the judge’s evidentiary ruling, the testimony was largely confined to the
defendant’s peaceful, honest, and law-abiding reputation, particularly with
regard to children, though a few witnesses were also allowed to speak to the
caregiver’s reputation for kindness, integrity, and trustworthiness.48
The defense presented only one doctor of its own: Doctor Wayne T., who
testified as an expert in pediatrics and pathology. Doctor T. had not practiced
pediatrics in twenty years and conceded that he had no training in the detec-
tion of child abuse; his board certification in pathology was no longer current.
Doctor T.’s involvement in the case can perhaps best be explained by his rela-
tionship with an investigator in the defense attorney’s office, with whom he
had served in the army reserves. Given these limitations, the only medical testi-
mony offered by the defense was in all likelihood discounted by the trial judge.
Even were this not the case, the substance of his testimony hardly undermined
the unified theory of guilt offered by the prosecution: Doctor T. failed to chal-
lenge the certainty with which the state’s experts identified Del Prete’s violent
shaking as the cause of death; he could not opine on the perceived pattern of
retinal bleeding that was critical to the ultimate finding of guilt; and, apart
from posing a number of vague, tentative explanations for the baby’s ALTE, he
02_9780199913633.indd 12 1/29/2014 1:01:26 PM

did little to amplify the uncontested fact that Isabella was already experiencing
neurological symptoms when she was left in Del Prete’s care.49
The judge found the defendant guilty of murder in the first degree and
immediately revoked her bond.50 Del Prete was sentenced to a term of twenty
years, which she continues to serve. When she was convicted, her two chil-
dren were separated and sent to live in different homes.51 Tia, the teenager, is
now an adult.
The Lure of Blame

The complete overlap between medical diagnosis and criminal prosecution
received little scrutiny when it first came to pass. To understand why the SBS
hypothesis was uncritically accepted as a legitimate marker of guilt, we can
begin by considering the functions served by blame. The drive to blame is
surely not the only possible explanation for SBS—other significant factors
will emerge in discussion of the triad’s endurance. But the psychology of
blaming provides a useful perspective on how SBS became a medical diagno-
sis with unprecedented legal status. So, too, is this vantage helpful in consid-
ering the diagnosis’s attraction in any individual case.
The death of a baby is one of life’s most devastating tragedies, as is the severe
neurological impairment of a once-healthy child. In the face of such mis-
fortune, finding fault can be irresistible. The impulse to blame is powerful,
not only for parents, but also for doctors, police, prosecutors, judges, and
jurors (many of whom are also parents themselves). Rather than confront the
absence of a wrongdoer, we identify a perpetrator who can be held respon-
sible for awful circumstances.
This tendency often results in misperceptions of causation.52 Extensive
literature documents this cognitive bias.53 Psychologists have shown that
we “make sense of seemingly random catastrophes” by distorting our under-
standing of their source.54 Because chance occurrences, like the sudden col-
lapse of a baby, cannot be controlled, they are deeply destabilizing.55 To avoid
confronting the prospect of such calamity, we attribute fault to someone who
can then be punished for the harm. Constructing a causal connection to an
offender allows us to better cope with the prospect of tragedies without vil-
lains, a deeply unsettling reality.
Psychologist Elaine Walster has aptly described this process of cog-
nitive distortion: “If a serious accident is seen as the consequence of an
02_9780199913633.indd 13 1/29/2014 1:01:26 PM

unpredictable set of circumstances, beyond anyone’s control or anticipation, a

person is forced to concede the catastrophe could happen to him. If, however,
he decides . . . that someone was responsible for the unpleasant event, he should
feel somewhat more able to avert such a disaster.”56 Converting catastrophe to
crime allows us to feel less helpless; if we can find and punish a perpetrator,
we may be able to dodge a blow like this in the future.57 Worse disasters, it
seems, only exacerbate the urge to psychologically protect against a similar
fate by assigning blame to a human agent.58 It seems that anger, the “principal
emotion associated with justice judgments,”59 also provides an outlet for our
vulnerability to unexpected suffering.
To observe that the SBS paradigm implicates a number of cognitive
biases is not to impugn anyone’s intelligence or morality. In the past five
decades, the ubiquity of these biases has become more apparent. “The
idea that our minds are susceptible to systemic errors is now generally
accepted,”60 remarks Daniel Kahneman, who along with Amos Tversky, is
responsible for much of the groundbreaking research in the area. Because
there are, as Kahneman notes, “distinctive patterns in the errors people
make,”61 we know that certain scenarios are likely to trigger the application
of particular cognitive biases.
The sudden, seemingly inexplicable, collapse of an infant is one such cir-
cumstance. Rage can further interfere with efforts to rationally evaluate the
facts.62 And where a baby—the quintessential innocent—is readily situated as
crime victim, the drive to locate an offender only gains force. Endeavoring to
make sense of unfathomable tragedy, blame beckons.
Working Moms
It is also worth considering whether SBS functions, at least in part, as a repos-
itory for more collective dimensions of blame. Deep cultural anxieties sur-
round working mothers of infants. Shortly before SBS prosecution gained
momentum, a developmental psychologist named Jay Belsky published “The
‘Effects’ of Infant Day Care Reconsidered.” According to the study, infants
subjected to more than twenty hours a week of non-maternal care were at
greater risk of psychological and behavioral problems.63 Belsky’s paper, which
was widely publicized in print and on television talk shows, provoked an
“explosive” public reaction. As one commentator wrote:
Newspaper reports about this finding sent shudders of guilt through

millions of parents. The headlines have long since subsided, but what
02_9780199913633.indd 14 1/29/2014 1:01:26 PM

remains is the misguided impression that Belsky scientifically estab-

lished what many of us secretly fear to be true: that mothers of infants
who do not devote at least most of their time to child-rearing risk com-
promising their children.64
The study drew heavy criticism from researchers and became fodder for
partisan political discourse. A national “infant day care summit meeting”
(which Belsky himself attended) was quickly convened.65 Development
experts expressed widespread agreement that the quality of care, not its
provider, is generally the best predictor of a child’s success.66 But a dispute
remained, centering, as it does even today, on the question of the first year
of life.67 This question was becoming increasingly urgent, since the major-
ity of mothers with infants one year old or younger now worked outside the
home.68 Angst regarding the effects of non-maternal care was exacerbated by
this new reality.
The post–World War II trend toward greater labor force participation on
the part of married women with babies reached its peak in the mid-1990s.69
Today, day care centers, babysitters, and relatives are the primary providers of
care for infants whose mothers have returned to work.70 There is every reason
to believe that this development will persist. According to the U.S. Bureau
of Labor Statistics, employment of child care workers is expected to grow by
20 percent from 2010 to 2020, faster than the average for all occupations.71
Despite this reality, or perhaps because of it, collective apprehension
about the meaning of non-maternal baby care endures.72 Since publication
of the Belsky study, research on the effects of day care has mirrored societal
anxiety while intensifying it.73 The potent mix of working motherhood and
infancy continues to implicate ideologically loaded issues surrounding wom-
en’s proper role. As legal scholar Carol Sanger explains, “mothers who sepa-
rate from children confound societal expectations about what motherhood
means and how mothers are supposed to behave.”74 This is especially true
when mothers leave their infants in order to work.75 Widespread discomfort
with non-maternal care arrangements tends to perpetuate an ideal of women
as child rearers, while defining deviations from this norm as problematic.76
Working mothers often internalize these attitudes, experiencing guilt, separa-
tion anxiety, inner conflict, and fear at the prospect of leaving their young
ones in the care of others—institutional or familial.77
SBS may be best understood against the backdrop of these same cultural
biases. The diagnosis accuses caregivers (mostly non-maternal caregivers78) of
abusing babies. It aligns perfectly with an impulse to condemn the caregiving
02_9780199913633.indd 15 1/29/2014 1:01:26 PM

arrangements themselves. And it facilitates a turn to judging the mother,

whose abdication of her maternal role may be seen as the ultimate cause of the
baby’s harm. All of this resembles in certain respects a moral panic.79
With social misgivings surrounding non-maternal care comes a strong
inclination to view perceived “mother substitutes” as harmful, even danger-
ous.80 Non-maternal caregivers are perfectly positioned as alleged abusers
because their guilt confirms a fundamental societal belief in the unnatural-
ness of mother/infant separation. From this standpoint, SBS is yet another
tangible proof that women belong at home with their babies.
02_9780199913633.indd 16 1/29/2014 1:01:26 PM

2 C O M P L I C AT I O N S
“The ‘triad’ is a myth,” declared a leading child abuse specialist and

advisory board member of the National Center on Shaken Baby
Syndrome in 2011. “No trained pediatrician thinks that subdural
hemorrhage, retinal hemorrhage and encephalopathy [brain dam-
age] equals abuse.”1
We can trace the undoing of classical SBS to the rise of
evidence-based medicine,2 a movement that urged doctors to “criti-
cally appraise” the information relied upon for diagnosis, in order
to ensure its “validity (closeness to truth).”3 With this shift in the
late 1990s4 toward “enlightened skepticism,”5 accepted medical
dogma became subject to new scrutiny. By a reasonably objective
measure of the quality of evidentiary support for the diagnosis, one
that ranked the evidence by accepted levels of scientific rigor,6 SBS
did not fare well.
“In hindsight,” acknowledges an authoritative textbook on
Abusive Head Trauma, “it appears that some of the earliest defi-
nitional criteria used by researchers to categorize cases as acci-
dental or inflicted were fundamentally flawed with inherent
biases or by circular reasoning.”7 Upon analysis, absolutist claims
made on behalf of the triad could not be supported. Ironically,
these deficiencies in the underpinnings of the diagnosis were
becoming more apparent just as triad-based prosecutions were
taking root.
Scrutiny
In medicine, clinical decision making depends in large part on the
research that supports it. If an underlying evidentiary foundation is
weak or nonexistent, the judgments that follow should, at best, be
received cautiously.8 This insight animated a turn in the mid-1990s
toward evidence-based medicine.9 The movement developed
new standards for evaluating the quality of research in order to
encourage methods both scientific and statistically rigorous.10 This
03_9780199913633.indd 17 1/29/2014 1:05:25 PM

commitment triggered a review of the evidence supporting a number of dis-

eases and conditions,11 including SBS.12
Application of the evidence-based framework to the body of research sup-
porting SBS resulted in a stark determination: the published studies were
profoundly flawed. As a whole, the medical literature contained “inadequate
scientific evidence to come to a firm conclusion on most aspects of causa-
tion, diagnosis, treatment, or any other matters pertaining to SBS.”13 More
specifically, “[s]erious data gaps, flaws of logic, [and] inconsistency of case
definition” meant that “the commonly held opinion that the finding of SDH
[subdural hematoma] and RH [retinal hemorrhage] in an infant was strong
evidence of SBS was unsustainable.”14
The SBS literature rested on a logical fallacy. Researchers had chosen
subjects for study based on the presence of subdural hematomas and retinal
hemorrhages (with brain swelling a common sequala); then with little or
no investigation into other possible causes of these symptoms, simply con-
cluded that the infants were shaken. By designating cases as “SBS” based on
the presence of retinal hemorrhages and subdural hematomas, the research
assumed precisely what it purported to establish.15 From this inference
came the generalization that subdural hematomas and retinal hemorrhages
must necessarily result from shaking. An influential 2003 review by Doctor
Mark Donohoe summarized the faulty reasoning: “if RH and SDH are
nearly always seen in SBS, the presence of RH and SDH ‘prove’ that a baby
was shaken intentionally.” It was rather predictable, then, that the studies
“tend[ed] to find their own case selection criteria pathognomonic of SBS.”16
The circularity of this reasoning can be represented by the following equa-
tion: “SBS = SDH + RH [inclusion criteria], therefore SDH + RH = SBS
[conclusion].”17
When considered in its entirety, “the evidence for SBS appear[ed] analo-
gous to an inverted pyramid, with a small database (most of it poor-quality
original research, retrospective in nature, and without appropriate con-
trol groups) spreading to a broad body of somewhat divergent opinions.”18
“Repeated opinions based on poor-quality data,” Donohoe’s analysis warned,
“cannot improve the equality of evidence.”19
There were other complications. Some studies purporting to show the
validity of SBS relied on “confessions” to establish the mechanism of injury.
When this research was subjected to the new evidence-based medicine stan-
dards, a number of problems surfaced.20 Even apart from the difficulty of
assessing the “truth value” of statements made during the questioning of SBS
suspects—which I will discuss later—the classification of a confession in these
03_9780199913633.indd 18 1/29/2014 1:05:26 PM

Complications • 19
studies was highly problematic from a methodological perspective. Because

acknowledgments of shaking in the course of revival efforts were deemed
confessions, these studies were of limited value in demonstrating causation.21
Here, too, a close look at the quality of the research substantially undermined
the scientific validity of the diagnosis.
Since SBS is used to establish criminal responsibility, the implications of
these research errors reach far beyond patient care. But, to place these fail-
ings in context, it is important to understand that SBS is not an isolated case
of medical research gone wrong. One of the world’s leading experts on the
subject—a Greek physician named John Ioannidis—has concluded that
most of the published literature relied upon by doctors is wanting in impor-
tant respects.22 In decades of analysis, he has uncovered problems with the
ways researchers frame their questions, design studies, recruit subjects, measure
results, analyze data, and present their conclusions.23 The meta-explanation
for these various failures is that researchers seek certain results and, in the
process of experimentation, manipulate outcomes, however unconsciously.24
The studies are biased.
As the turn to evidence-based medicine revealed, early studies used to
establish that shaking caused the triad suffered from many of these defects.
In 2002, the National Institutes of Health (NIH) convened a conference at
which major deficiencies in the SBS evidentiary base were widely acknowl-
edged.25 Many remarks echoed those of the NIH doctor whose comments
prefaced the proceedings: “Because there is very little scientific experimental
or descriptive work, the pathophysiology remains obscure, and the relation-
ship to mechanics even cloudier. What we need is science—research and evi-
dence that just isn’t there right now.”26
Around this time, magnetic resonance imaging (MRI) revolutionized the
field of radiology and dramatically altered the diagnostic universe. Compared
to its precursor, computed tomography (CT), MRI enabled a far more
detailed assessment of the “pattern, extent, and timing” of central nervous
system injuries.27 New radiological findings challenged what had become akin
to scientific gospel, revealing the presence of triad symptoms in the so-called
“mimics” of abuse.28 It became apparent that accidental injury and medical
disorders could indeed manifest as SBS.
Once the foundation for the diagnosis cracked, researchers began look-
ing beyond the child abuse literature to the expertise of radiologists, neuro-
surgeons, pathologists, and biomechanical engineers. As we will see, insights
from these disciplines further dispelled the notion of a pathognomonic
relationship between shaking and the triad, proved the possibility of a lucid
03_9780199913633.indd 19 1/29/2014 1:05:26 PM

interval, and undermined the hypothesis of shaking that was central to the
diagnosis.
As technology and science advanced, the number of doctors expressing
doubts about the absolute worth of the triad reached a critical mass.29 Even
those who continued to believe in the legitimacy of SBS revised their defense
of it in the face of undeniable evidentiary shortcomings. In the words of
one prominent adherent, “[t]he lack of an evidence base . . . does not negate
the syndrome: it just means the support for the syndrome is incomplete.”30
This concession to the limits of existing knowledge is significant—
especially since the syndrome has functioned to convict people of crimes.
Since we are to presume innocence unless guilt is proven beyond a reasonable
doubt, the “lack of an evidence base” matters a lot, even if it does not “negate
the syndrome.” We will return to this concern. But, for now, let us consider
how the parameters of SBS were adjusted to accommodate more nuanced
understandings of the triad.
The New SBS

SBS is no longer a simple diagnosis. Whereas the triad once was believed to
result only from forceful shaking by the last caregiver with the baby, the diag-
nostic picture is now considerably more ambiguous. In particular, in pub-
lished medical discourse (as opposed to practice, which will require separate
discussion), the triad has become far less absolute as a marker of criminality.
At times, the triad is even treated as if it is not a meaningful construct.31
With this change, the ability of the diagnosis to prove guilt has been sub-
stantially compromised. To better grasp why, let us look closely at the new
unknowns.
Unknown Mechanism
For decades, SBS was exclusively associated with shaking, mostly because
doctors felt certain they understood the physiological pathway connecting
the trauma of shaking to the triad. As conventional wisdom had it, rapid
acceleration-deceleration forces caused the brain to rotate, physically tear-
ing bridging veins that traverse the dura (the outermost meningeal layer of
the brain) and shearing neural axons (nerve fibers), thereby causing further
damage to the brain. Retinal bleeding was often said to result from the same
application of physical force.
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Challenges to the theory of traumatic injury first emerged in 2001, with

the publication of two papers by Doctor Jennian Geddes, raising quite a dif-
ferent explanation for the triad.32 Upon close pathological examination of the
brains of allegedly abused infants, it appeared that the nature of the injuries
was not direct physical trauma (i.e., shaking causing damage to nerve fibers).
Instead, the damage seemed hypoxic-ischemic, meaning due to a shortage of
oxygenated blood. This finding was inconsistent with a view of the triad as
necessarily caused by shaking, since the brain can be deprived of oxygen for
any number of reasons having nothing to do with abuse. If these studies were
correct that the cerebral and axonal damage that defined SBS could result
simply from a lack of oxygen, the relationship between shaking and the triad
would have to be reevaluated.
Following the publication of Doctor Geddes’s findings, further research
reinforced the idea that the triad can result from non-traumatic origins.33 As
understandings of infant physiology expanded,34 the medical establishment
became increasingly willing to accept that the pathophysiology involved in
head trauma might be hypoxic-ischemic, rather than directly traumatic.35 This
recast the mechanistic theory underlying the triad.
Reflecting these developments, in 2009 the American Academy of
Pediatrics adopted the “less mechanistic term” of “Abusive Head Trauma”
(AHT) “to describe the constellation of cerebral, spinal, and cranial inju-
ries that result from inflicted head injury to infants and young children.”36
Shaking remains one of the recognized causes of AHT,37 according to the
Academy, qualifying it as a “subset” of the new diagnosis—albeit one that
cannot be specifically distinguished from other kinds of inflicted head injury.
Because SBS was a more precise label than the science allowed, shaking was
removed from the syndrome, especially as its identifying feature.38 In recog-
nition of the unknowns, pediatricians were urged to replace SBS with the
vaguer designation of AHT. This directive was categorical; it did not refer to
any basis for doctors in an individual case to designate shaking in particular as
the mechanism of injury.
The latest nomenclature incorporates a growing uncertainty regarding
the pathway of injury in SBS cases. Even assuming that shaking, among other
causes, can bring about the triad, its ways of doing so are less understood than
originally posited. As a leading treatise explains, “in recent years, more and
more clinicians and researchers are choosing to use more inclusive and less
specific labels (e.g., ‘abusive head trauma’ or ‘inflicted head trauma’) when
referring to these cases, avoiding labels that imply unrealistic certainty regard-
ing the specific injury mechanisms (e.g., ‘shaken baby syndrome’).”39
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Awareness that the former SBS “implied unrealistic certainty” runs

throughout the most recent (2009) statement on the subject by the American
Academy of Pediatrics. Although the label of “abuse” continues to attach to
the Academy’s terminology (despite the absence of a physiological account),
the longtime presumption of abuse has been formally eliminated. In its place
is a requirement of diagnostic “restraint,” at least until “the medical evalua-
tion has been completed.”40 In marked contrast to the earlier version of SBS,
which was said to be “clearly definable,” the latest iteration contemplates a far
less-definitive clinical assessment. Today, “there is no single or simple test to
determine the accuracy of the diagnosis.”41 In the absence of injury to mul-
tiple organs—in other words, injury beyond the triad—the diagnosis is, per
the Academy, “less certain.”42
Unknown Force
Now that shaking is no longer advanced as the only cause of the triad,
impact has become a more defining aspect of the syndrome.43 The concept
of “abuse” central to AHT, or the new SBS, encompasses both shaking and
impact; indeed the two causal mechanisms hypothesized cannot normally be
differentiated.44
Though impact plays a key role in the new SBS, its introduction raises
more questions than it answers. In this context, the idea of “impact” is a nebu-
lous concept, and one that lacks scientific foundation. As we will see, the spec-
ulation ranges: babies are shaken then slammed; babies are thrown; babies are
hit against a hard surface like a floor; babies are hit against a soft surface like
a bed. The possibilities abound; unmoored from shaking, the diagnosis drifts
considerably.
The ambiguities are compounded by questions about the levels of force
involved in bringing about the triad. Once impact (of whatever kind) is
acknowledged as a potential cause, quantifying the force that could injure an
infant becomes critical. If only minimal force is needed, the syndrome is not
necessarily “abusive.”45 This is not an academic point. Caregivers suspected of
SBS often describe a fall by way of explanation for a baby’s condition.46 If this
kind of impact could account for the triad, their stories should no longer be
dismissed as impossible, like in the past.
Since 2001, researchers have documented that relatively short-distance
(i.e., less than three to four foot) falls can indeed cause the triad,47 and at times
be fatal.48 While, happily, the infant mortality rate from short falls is small,49
it affects the proper evaluation of cases said to involve this very scenario.50
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Conventional thinking about short falls has shifted so decisively that a Texas
appeals court recently granted a new trial to a woman on death row based
on the new science.51 At her 1995 trial for killing an infant in her care, the
caregiver, Cathy Lynn Henderson, claimed that she had accidentally dropped
the baby from her arms—a contention rebutted by the testimony of prosecu-
tion experts, who unanimously insisted that the brain injuries were caused
when the infant’s head was slammed against a hard surface. As was typical, the
medical examiner testified that the neurological injuries could have resulted
only from the kind of force generated by a fall from a two-story building.
This parallel, along with the high-speed car crash analogy (again, routinely
advanced under the old SBS framework), foreclosed any innocent explana-
tion for the baby’s injuries.
After revisiting the assertions of the prosecution experts at an extensive
evidentiary hearing, the Texas appeals court affirmed that there was “credi-
ble, new scientific evidence” that an accidental short fall onto concrete could
have resulted in the baby’s death.52 Although this did not prove Henderson’s
innocence—the science was too uncertain to definitively establish a cause of
death53—it did fatally undermine the state’s proof of guilt.54 The testimony
of the prosecution experts at trial had been unequivocal and damning: the
witnesses against Henderson characterized her account of a short distance
fall as “impossible” and “incredible.” Without this emphatic testimony, now
known to be “scientifically unreliable,” the jury may well have found the
defendant not guilty. “Changing science has cast doubt on the accuracy of
the original jury verdict,” pronounced the court. The belief that short falls
cannot cause fatal infant trauma “no longer enjoys acceptance in today’s sci-
entific community.”55 It is, at its core, “scientifically flawed.” A truer scientific
reckoning left uncertainty sufficient to require that Henderson’s conviction
be reversed.
In the past, the violence of the shaking was built into the SBS diagno-
sis. But certitude surrounding the mechanism of “abuse” and the force it
entails has dissipated, undermining fundamental tenets of the diagnosis and
its capacity to prove guilt. “What kinds of forces are needed to generate the
kinds of injuries that you see with respect to these abusive head trauma cases?”
one leading prosecution expert was asked in 2012.56 The neurosurgeon’s can-
did reply: “We don’t know.”57
Adding to the mystery is a body of biomechanical research that suggests
the forces generated by human shaking could not possibly bring about the
triad without implicating the cervical spinal cord or neck,58 a relatively infre-
quent finding in these cases.59
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Unknown Timing
Back when doctors were confident that the triad’s cause was the shearing of
bridging veins and nerve fibers, they were also sure that the symptoms associ-
ated with SBS would be immediately apparent. Neurological impairment was
seen as the result of nerve fiber damage due directly to trauma; therefore, its
onset established a time frame for the abuse. In other words, because the act
of shaking was believed to physically tear the veins and axons, there could be
no period of lucidity. The chronology was simple: the person with the baby
before the collapse was responsible for it.
This straightforward narrative began to unravel with rising awareness of
hypoxic-ischemic injury as a likely contributor to the triad.60 But what ultimately
proved fatal to the theory of virtually simultaneous neurological deterioration
was the documented existence of periods of lucidity prior to collapse—even in
suspected abuse cases where babies were under hospital observation throughout
the relevant time frame.61 Doctors now realize that there can be a stretch during
which an infant remains conscious and seems reasonably well.62 This possibility
must be considered whenever shaking or impact is assumed to have caused neu-
rological injury. And, of course, a sizable interval of lucidity is likely involved
whenever a natural disease process is among the causal factors.63
The triad’s seemingly extraordinary ability to pinpoint a perpetrator has
thus come undone. The new diagnosis cannot “time” injuries, as even doctors
who continue to diagnose SBS must grant. Leading child abuse pediatricians
accept that infants can “present initially for medical treatment with acute and
severe but delayed clinical deterioration following an earlier, unrecognized
or unreported head injury event.”64 In one study of children diagnosed with
SBS/AHT, almost one-third had seen a doctor for symptoms of head trauma
before the cause was eventually characterized as abuse.65 In these cases most
obviously, but also in others—where the baby’s symptoms for any number
of reasons never led parents to seek medical attention—science can estab-
lish neither a time frame nor a perpetrator. Lucid intervals exist; research has
shown it, and case reports confirm it. What immediately precedes a baby’s
collapse may not provide a full diagnostic picture.
The difficulty of dating blood is compounded by the high percentage
of babies who present with the triad and chronic subdural bleeding: up to
70–80 percent, according to one published estimate; by others, somewhat less,
but still significant.66 Researchers are developing an understanding of the ori-
gins of chronic subdural blood,67 but its presence tends to suggest that the clin-
ical course often extends back in time, in some cases perhaps even to birth.68
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Old bleeding confuses an already convoluted physiological picture. Babies

with chronic subdural hematomas may be vulnerable to “second impact syn-
drome,” in which a head injury in the days or weeks prior to collapse is exacer-
bated by a second, often very mild, trauma.69 And, regardless of their source,
chronic subdurals may “re-bleed” upon slight impact.70 What doctors have
learned about old bleeding further belies earlier claims to certainty. Not only
does the presence of old blood give the lie to surefire medical identifications
of an abuse perpetrator, it also undermines assurances that there was abusive
trauma at all.
Unknown Origins
The discovery of SBS “mimics” over the past decade transformed the diagno-
sis.71 It turns out that there are many natural (i.e., non-traumatic) sources of
the symptoms previously thought to prove shaking. This is true of all three
triad symptoms, including retinal hemorrhages,72 which some doctors now
view as part of a cascade of neurological events as opposed to independent
indicia of trauma.73 The medical establishment has laid to rest the idea that
the triad can result only from abuse.74
The standard list of non-traumatic alternatives includes congenital mal-
formations, metabolic or genetic disorders, hematological disorders, infec-
tious diseases, and autoimmune conditions.75 Other possibilities include
aneurysms, stroke, and chain reactions to cardiorespiratory arrest, hypoxia,
resuscitation, and seizures.76 The implications for clinical practice are enor-
mous, as (at least in principle) doctors agree on the need to “rule out” other
causes before settling on a diagnosis of AHT,77 which is now a diagnosis of
exclusion. The methodology of differential diagnosis, as it is also called, has
become a hallmark of the new SBS.
Differential Diagnosis
The indeterminacy surrounding differential diagnosis creates real dilemmas
for criminal justice. This is most obvious when we consider old SBS convic-
tions, which rest on medical conclusions derived without consideration of
now-acknowledged alternatives. Because the earlier formulation of the diagno-
sis overlooked explanations for the triad that have since been discovered, spe-
cific deficiencies have become clear in hindsight. But the diagnosis was faulty in
another, more global way: in denying that a universe of potential non-traumatic
alternatives might even exist, the classic diagnosis falsely promised certainty.
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The differential diagnosis currently in place is at odds with the legal

requirement that guilt be proven beyond a reasonable doubt. While there are
many recognized explanations for the constellation of symptoms associated
with SBS, the default source of the triad remains abuse. (Note that the con-
ventional medical term for natural causes of the triad is “mimics of abuse,”
which impliedly accepts the presumptive connection between the triad and
abuse.) Where the ambiguities associated with the “mimics” are quite appar-
ent, doctors may concede an inability to reach a diagnostic conclusion.78 But
far more often, doctors do not acknowledge uncertainty, even when the med-
ical findings are subject to considerable interpretation.
In practice, there is little agreement regarding what must be “ruled
out”79 and how, if at all, such exclusion is possible. Many potential causes
of the triad are controversial, which means that the differential diagnosis
is highly variable.80 For example, though research in the area is still emerg-
ing, there is strong support for the proposition that the differential diag-
nosis should include cortical vein and/or sinus thrombosis (often referred
to as Cerebral Venous Thrombosis, or CVT), in which a blood clot forms
in the veins or sinuses draining the brain.81 Yet some doctors vehemently
refuse to consider this possibility. “The claim that venous thromboses
cause the triad is blatantly false,” contends one prominent neuropatholo-
gist.82 According to another prominent neuropathologist, CVT is “one of
the most frequently overlooked pathologies, clinically and pathologically,
in babies with the triad.”83
Also disputed is the role of Benign External Hydrocephalus (BEH)
(known too as Benign Enlargement of the Subarachnoid Spaces, or BESS)
in predisposing infants to subdural bleeding.84 The condition is commonly
defined by a large or rapidly growing head circumference in infants (though
this is not required85), combined with enlarged subarachnoid spaces, which
lie just beneath the dura.86 Researchers have shown that children with BEH
may be more susceptible to developing subdural bleeding upon little or no
trauma.87 And BEH may help explain why boys, who disproportionately suf-
fer from macrocephaly, are also overrepresented among infants ultimately
diagnosed with SBS.88 But clinicians have not universally accepted this under-
standing. Many continue to discount the idea that BEH can contribute to an
infant’s neurological vulnerability, even when a baby with the triad presents
with telltale signs like a large or rapidly growing head.
The differential diagnosis is complex and very much a work in prog-
ress insofar as the universe of possibilities is still expanding.89 The diffi-
culty of excluding the non-traumatic alternatives to a reasonable degree
03_9780199913633.indd 26 1/29/2014 1:05:26 PM

of certainty—much less, beyond a reasonable doubt—is compounded by

the fact that some tests can be performed only clinically, and others only
on autopsy.90 As medical science continues to advance our understanding
of natural causes of the SBS triad, the folly of claiming certitude becomes
evermore obvious.
A last difficulty with using differential diagnosis to prove guilt in SBS
cases is that it is not a helpful descriptor of the actual methodology. Despite
the zeal with which the concept of differential diagnosis has been embraced,
it does not accurately describe what happens when doctors determine, based
on the triad, that a baby was abused. SBS is a diagnosis of etiology—meaning
that it identifies an external cause. As such, it implicates a methodology
known within the law as differential etiology. This kind of diagnostic inquiry
is very different from the sort that doctors typically pursue, and its outcomes
are far less reliable. As we soon will see, courts in civil cases—unlike their
criminal counterparts in the SBS context—have recognized these concerns.
When expert claims result from differential etiology, in the civil context, they
are treated with far more skepticism.
As compared to its predecessor, today’s SBS reflects a much greater awareness

of the limits of science. No longer can it identify a time frame (and thus, a
perpetrator). No longer can it pinpoint a specific causal mechanism—violent
shaking—that in the past established not only how a crime was committed,
but that the person responsible possessed the requisite mental state. And no
longer does it render the triad synonymous with a baby’s abuse. Over time,
the meaning of the triad has become less sure as new explanations for it have
emerged. No longer a determinate diagnosis, but one steeped in unknowns,91
modern SBS rests on unstable foundations. When it comes to proving guilt,
the new diagnosis simply cannot do the work of the old SBS. Many convic-
tions, however, rest on the old SBS.
Doubtful Convictions
In early 2007, the judge who presided over caregiver Audrey Edmunds’s trial
more than a decade earlier conducted a five-day evidentiary hearing in sup-
port of her motion for a new trial.92 Edmunds made her motion based on
newly discovered evidence—in this case, the science of SBS. Edmunds was
represented by Professor Keith Findley and the Wisconsin Innocence Project,
a clinical program at the University of Wisconsin Law School. It is worth
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noting that, like others of its kind, the Innocence Project has more resources,
greater access to experts, and more extensive research capabilities than what is
available to most defendants seeking post-conviction relief, factors that surely
contributed to the result in this case.
Edmunds presented the testimony of a panel of experts, including the
chief of pediatric neuroradiology at Stanford’s Children’s Hospital, a pedia-
trician, an ophthalmologist, and two forensic pathologists, plus the autopsy
pathologist who appeared as a prosecution witness at Edmunds’s original
trial. According to these experts, a still-emerging body of literature had cast
new doubt on previously accepted medical dogma. They explained what was
now in dispute: whether shaking alone could cause the constellation of symp-
toms defined as SBS; whether a specific mechanism for the symptoms could
be accurately identified; whether considerable force, as opposed to a minor
impact, was necessary to cause the symptoms associated with the syndrome;
whether previously unrecognized “mimics” of child abuse could cause the
triad of symptoms said to be pathognomonic of abusive head trauma; and
whether the occurrence of the type of neurological damage leading to serious
brain injury inevitably caused immediate unconsciousness.93
The defense experts testified that, given the state of the science at the time
of Edmunds’s 1996 trial, they would have testified as had the prosecution’s
experts. But the changed science had altered their opinions as to the likely
cause of death. Regarding the particular circumstances of the baby’s death,
the defense experts testified that the evidence upon which Edmunds was con-
victed was undermined by a number of scientific developments.94
Studies using biomechanical models, animal models, and computer simu-
lations suggested that the infant’s brain injuries could not have been caused by
shaking alone. Even if her death was caused by trauma (i.e., impact), consid-
erably less force than previously suspected could have caused her symptoms.
New research had uncovered a number of alternative causes of the retinal
hemorrhages that, at trial, were said to conclusively prove that the baby had
been shaken. Emerging science revealed that chronic subdural hematomas—
like the one discovered on autopsy—may re-bleed with little precipitation,
causing further brain injury. The differential diagnosis had evolved consider-
ably in recent years. And, finally, the evidence thought to be dispositive on
the timing of symptoms was contradicted by the lucid interval studies, dis-
solving past certainty that the infant was injured during the hour that she was
in Edmunds’s care.95
In short, the scientific foundation for concluding beyond a reasonable
doubt that Edmunds had shaken the baby to death was no longer intact. The
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appellate court summarized the evidentiary record of the post-conviction

hearing as follows:
Edmunds presented evidence that was not discovered until after her
conviction, in the form of expert medical testimony, that a significant
and legitimate debate in the medical community has developed in the
past ten years over whether infants can be fatally injured through shak-
ing alone, whether an infant may suffer head trauma and yet experience
a significant lucid interval prior to death, and whether other causes
may mimic the symptoms traditionally viewed as indicating shaken
baby or shaken impact syndrome. Edmunds could not have been neg-
ligent in seeking this evidence [at the time of the trial], as the record
demonstrates that the bulk of the medical research and literature sup-
porting the defense position, and the emergence of the defense theory
as a legitimate position in the medical community, only emerged in the
ten years following her trial.96
The state maintained that the baby’s death was caused by some combina-
tion of violent shaking and impact, and that this trauma could only have been
inflicted immediately prior to the onset of unmistakable and severe neurolog-
ical damage.97 But even the state’s experts acknowledged, to varying degrees,
that the science of SBS had evolved since the mid-1990s.98
While expressly acknowledging that “[s]tanding alone and unchallenged,
the defense witnesses provide[d] a sufficient evidentiary basis to order a new
trial based upon newly discovered medical evidence,”99 the trial judge denied
the motion based on his interpretation of the applicable legal standard. But an
appellate court reversed this decision and concluded that there was a reason-
able likelihood that at a new trial, a jury would find Edmunds not guilty. In
an unprecedented opinion, the court noted the “shift in mainstream medical
opinion since the time of Edmunds’s trial.”100 While there were “now compet-
ing medical opinions as to how the infant’s injuries arose and . . . the new evi-
dence does not completely dispel the old evidence,” the court was persuaded
that “the emergence of a legitimate and significant dispute within the medical
community as to the cause of those injuries . . . constitutes newly discovered
evidence.”101
According to the appeals court,
[at trial] the State was able to easily overcome Edmunds’s argument
that she did not cause [the baby’s] injuries by pointing out that the
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jury would have to disbelieve the medical experts in order to have a

reasonable doubt as to Edmunds’s guilt. Now, a jury would be faced
with competing credible medical opinions in determining whether
there is a reasonable doubt as to Edmunds’s guilt. Thus, we conclude
that the record establishes that there is a reasonable probability that a
jury, looking at both the new medical testimony and the old medical
testimony, would have a reasonable doubt as to Edmunds’s guilt.
Audrey Edmunds was granted a new trial. Months later, all charges against
her were dismissed.102
Edmunds tells that SBS has been meaningfully transformed. The court recog-
nized that many of the previous “knowns” are now, at the very least, in ques-
tion—and that claims formerly made on behalf of the diagnosis have been
upended. Given that the caregiver was granted relief based on revised under-
standings of the triad, one might have expected that her victory would mark a
sea change in the post-conviction treatment of triad-based cases.
Edmunds served eleven years in prison—over half in a maximum-security
institution—before she was released.103 Reflecting on her time as an inmate,
she described that “[i]t is something I never got used to. I didn’t take it a day
at a time or an hour [at] a time—it was a second at a time. Even with faith it
was a very, very hard thing to endure.”104
Edmunds’s children were five, three, and one when she was sentenced to
serve eighteen years; they were sixteen, fourteen, and twelve when she was
freed. While she was in prison, her husband divorced her and her father died.
“He took what happened very hard,” Edmunds said of her father. “He always
believed in the system. After teaching about our justice system for 25 years, it
just exploded in his face. I think he just couldn’t understand how this could
happen.”105
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3 THE TRIAD ENDURES
Despite profound shifts in the scientific underpinnings of SBS, the

diagnosis continues to operate in familiar ways. Most notably, the
SBS that convicts defendants in criminal court remains unambigu-
ous and fully certain—even though the AHT formally recognized
by the medical establishment makes real concessions both to ambi-
guity and uncertainty.
Today’s SBS
Because it covertly deviates from the sanctioned formulation,
today’s SBS is an elusive construct indeed. Still, common features
of the contemporary diagnosis can be identified.
Old SBS, Redux

One variation of the new SBS is easy to describe, for it is much
the same as the version it supposedly displaced. Even today, clini-
cal practice and expert testimony in criminal prosecutions often
remain rooted in old ways of thinking. Despite superficial changes
in appearance, debunked mythologies of the triad continue to
thrive in criminal court.
In a recurring pattern, the presence of subdural bleeding leads
doctors to assume there was abuse when a baby presents with acute
neurological deterioration. Once this presumption is in place, a
series of consultations, especially with the child abuse doctor, con-
firms the initial impression. If an ophthalmologist finds retinal
hemorrhages, SBS is considered a certain diagnosis. Even without
retinal bleeding, subdural hematoma and brain damage are at times
enough to establish that the baby was shaken. A few tests may be
performed in an attempt to rule out natural causes. Doctors com-
monly obtain a coagulation profile, which screens blood for a
number of factors associated with abnormal clotting. Though the
profile cannot capture all clotting-related problems, if it uncovers
04_9780199913633.indd 31 1/29/2014 1:06:20 PM

nothing, doctors are nevertheless confident that they have excluded the pos-
sibility of a bleeding tendency. A coagulation profile alone may be used to
confirm that the source of the triad is abuse.
Even in prosecutions that proceed to trial, the soundness of the diagnos-
tic methodology is rarely subjected to scrutiny. Differential diagnosis, if it
is mentioned at all during the course of a trial (this varies), tends to be ref-
erenced in only cursory fashion. When pressed, experts for the prosecution
define the differential diagnosis as including precisely those alternatives—
and only those alternatives—considered by doctors in the case at hand. This
is true regardless of departures from accepted best practices.1
Prosecution experts tend to testify with certainty that the triad symptoms
were caused by shaking, though impact might also be mentioned as a possi-
bility. Typically, discarded hypotheses are presented as accepted truths: doc-
tors explain that the triad resulted from sheared bridging veins (perhaps using
computer simulations to depict this); they provide the car crash/multistory
fall force analogy and perform the shaking doll demonstration; they dispel
the lucid interval possibility by assuring that the loss of consciousness must
immediately have followed the shaking episode. All this means that the ver-
sion of events given by the caregiver with the child at the time, whatever that
explanation might be, is deemed incredible. There can be no doubt: the care-
giver is guilty.
This account of the triad’s meaning persists without regard for its formal
demise, defying basic tenets of evidence-based medicine. Despite the official
stance of the American Academy of Pediatrics, despite the guidance of lead-
ing medical treatises on the subject, and despite published documentation of
lucid intervals and the “mimics” of abuse, outdated teachings on the triad are
maintaining their hold.
The practice of evidence-based medicine requires that, after applying the
best available evidence to the task of diagnosis, “clinicians must be ready to
accept and live with uncertainty.”2 As indicated by resistance to the revised
SBS diagnosis, however, certainty is tenacious. In this case, it has beaten back
the new unknowns. This dynamic is powerful testament to the lasting nature
of incorrect medical beliefs.3 Though disconnected from the best available
science, the old SBS continues to convict caregivers of the very worst crimes.
The Primacy of Clinical Experience

The other variation of SBS that routinely appears in court is a tweaked ver-
sion of the old diagnosis. Claims made on behalf of the triad are similar, and
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The Triad Endures • 33
they prove guilt in much the same way they always did. But now these claims
seem customized to the individual case. Experts testify that this triad equates
exclusively with abuse and precludes the possibility of a lucid interval; that
these symptoms mean that there was shaking (or perhaps impact); that in this
case, there are no other explanations. Doctors maintain that—in this case—
they are sure.
The claims are no longer articulated as general propositions, a major
concession to the unknowns. But the certainty that once attended the triad
has not dissolved. At trial, experts still testify that the baby must have been
abused. Only now, this unwavering conclusion is tailored to the triad symp-
toms presented in the case on trial. For instance, as we will see, doctors may
assert that bleeding so severe could only result from abuse; that injuries this
serious could only have been inflicted just before the loss of consciousness;
and that a particular pattern of retinal hemorrhages could be caused only
by trauma. At times, doctors even venture to speculate about the particular
mechanism of abuse: the baby was shaken and slammed against the floor,
shaken and thrown against the wall, shaken and tossed onto the bed.
Without scientific evidence for their beliefs about the origins of a spe-
cific triad, it is unclear how doctors divine them.4 The ipse dixit quality of the
testimony is discomfiting, given that a diagnosis of SBS is ultimately used to
establish causation, and therefore prove a crime. Even so, when prosecution
experts fail to cite research, the lack of science to support their conclusions
usually goes without remark. Any connection between case-specific claims of
pathognomony and science seems almost beside the point.
Outside the courtroom, the justification to emerge has mostly been that
clinical experience allows for individualized interpretation of triad symp-
toms. Pediatricians in particular have argued that they possess special insight
in this regard, as compared to other medical professionals (especially that of
pathologists).5 The perceived benefits of pediatric expertise tend to align with
a clinically based diagnostic orientation. This might help to explain why pedi-
atricians are generally more likely than pathologists to classify neurological
symptoms as abusive,6 and why some are willing to justify a diagnosis of SBS
based on their practice treating babies. Despite an inadequate evidentiary
basis for claims still being advanced on behalf of the triad, clinical experience
is purported to trump science.7
The applicability of this approach to SBS is questionable. Doctor Norman
Guthkelch, whose seminal work first identified the possibility of shaking,
remarked in a retrospective look at the diagnosis, “Of the several hundred syn-
dromes in the medical literature, almost all are named after their discoverer
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(e.g., Adie’s Syndrome) or for a prominent clinical feature (e.g., Stiff Man
Syndrome). In contrast, the appellation shaken baby syndrome (SBS) asserts
a unique etiology (shaking).”8 First and foremost, SBS is a diagnosis of causa-
tion. It is unclear how the experience of seeing patients would enable a doctor
to determine that shaking actually caused a baby’s triad symptoms.9 Unlike
other diagnoses, which imply a treatment approach that can either confirm or
refute the accuracy of the clinical judgment, the doctor has no effective means
to assess the conclusion that a baby suffers from SBS. Perhaps the experience
of diagnosing SBS based on the same symptoms every time is thought to qual-
ify as special expertise. But this circularity does not advance the proposition
that clinical experience with SBS matters.
If caregiver “confessions” obtained in clinical practice are the source of
confidence in a given diagnosis, this too is problematic. Given the sample size
of any population of “confession cases” in individual clinical practice, deriving
grand conclusions from this subset hardly qualifies as sound methodology,
clinical or otherwise.10 Even in the aggregate, as we will see, reliance on con-
fessions as support for the diagnosis is dubitable.
The instincts of clinical practitioners have their place, but it is sensible to
ask whether this place is criminal court, as proof beyond a reasonable doubt
of guilt. There are reasons why, in a medical setting, we might be willing to
accept inadequately vetted clinical judgments. Still, we would recognize that
we were placing our faith in something other than science, and presumably
approach these clinical judgments with a measure of circumspection.
In the criminal context, case-specific claims on behalf of the triad have not
been treated with such caution. This may be because the assertions often mas-
querade as science; at trial, the clinical judgment component of the diagnosis
remains mostly obscured. It is striking that the proclamations of prosecu-
tion experts receive such little scrutiny, especially since the relevant scien-
tific research often contradicts the testimony offered as definitive evidence
of guilt. In theory, the new, more equivocal version of the diagnosis remains
a challenge to the testimony of doctors who adhere to the simpler (defunct)
test for guilt. In practice, however, the old model has real staying power.
One wonders why.
Child Abuse Specialization

Child abuse emerged as a significant medical issue with the 1962 publication
of C. Henry Kempe’s “The Battered-Child Syndrome.”11 The article prompted
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a sea change in the medical profession’s attitude toward unexplained inju-

ries.12 Doctors began accepting that abuse is real and identifying it based on
the presentation of particular physical symptoms. In the process, the histories
provided by caretaking adults were given far less credence.13
A number of important developments can be traced to the emergence of
child abuse as a medical problem. One is the rise of the current mandatory
reporting regime. In the years following publication of Kempe’s article, every
state in the nation passed legislation requiring doctors to report suspected
abuse to child protection agencies.14 Though existing statewide standards
for reporting vary, typically a referral must be made whenever there is reason
to believe that a child may have been abused—a low threshold designed to
facilitate further investigation by child protection workers (and, on occasion,
police) to determine the facts.
As medical attention to child maltreatment increased, so too did collabora-
tion between doctors and other institutional actors in the field of abuse. A coor-
dinated community approach is now viewed as key to an effective system-wide
response.15 To implement this approach, multidisciplinary child protection
teams have become standard fare around the country.16 These hospital-based
teams take many different forms, but usually include, along with doctors, child
protective workers, police, and prosecutors.17 Depending on the team, the mis-
sion may vary. But in general, the criminal aspects of abuse have come into
greater focus. Multidisciplinary teams also advise, consult, educate the commu-
nity, and monitor the resolution of cases; but investigating abuse has become
what one national survey characterized as “the most common function.”18
Internally, the medical profession has structured itself to attend more
to child abuse. In 1990, the American Academy of Pediatrics formed the
Section on Child Abuse and Neglect. Almost twenty years later, the field
of child abuse pediatrics was formalized with the administration of its first
board examination. Board certification in child abuse guarantees the growth
of a “cadre of pediatricians who are dedicated to diagnosing, treating, and
preventing child abuse and neglect.”19 Child abuse specialization affects how
doctors are educated and trained,20 along with what they publish.21
The medical profession’s emphasis on abuse has led to the formation of
organizations with this as their primary orientation. A notable example is the
Ray Helfer Society, self-described as “an honorary society of physicians seek-
ing to provide leadership to enhance the prevention, diagnosis, and treatment
of child abuse and neglect.”22 The National Center on Shaken Baby Syndrome
was incorporated in 2000 to target SBS exclusively.23 The Center’s advisory
board consists largely of doctors with an expertise in child abuse. According
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to the organization, “ongoing training efforts reach thousands of medical,

legal, child protection and law enforcement professionals worldwide.”24 In
2010, the nonprofit received over two million dollars in revenue, and the fol-
lowing year its offices moved to a bigger space to accommodate a decade-long
programmatic expansion.25
To summarize, modern medicine has witnessed the creation of a mandatory
reporting regime, the rise of multidisciplinary teams with an investigatory bent,
increased (and now formalized) child abuse specialization, and the advent of
organizational structures designed to support child abuse expertise. To observe
these developments is of course not to condemn them. Many of these conse-
quences—those most apparent—are positive: more prevention of child abuse;
coordination and improvement of the treatment of child victims across the sys-
tem; greater legal accountability for child abusers. But the changes I described
also have other, less noticed, implications that should give us pause. These unin-
tended effects may help to explain the ascendance of SBS and its durability.
For instance, an organization dedicated to a particular syndrome might
understandably have an interest in defending its diagnostic validity. Consider
the National Center on Shaken Baby Syndrome. Its website contains a section
called “All About SBS/AHT,” which includes brief summaries by nationally
recognized leaders in the field.26 One such synopsis cites the proposition that
“the lack of an evidence base . . . does not negate the syndrome: it just means
the support for the syndrome is incomplete.”27
Alongside the development of national organizations, the role of the med-
ical professional has been shaped by the rise of a multidisciplinary approach
to the problem of child abuse. By formalizing the alliance between doctors,
police, and prosecutors, team approaches to abuse have subtly reconceived
the function of the physician. For just one example of how this works in
practice, consider the arrangement in place in Chicago.28 At the University
of Chicago Medical Center, Children’s Hospital has a unit within it called
the Department of Child Protective Services, which was established to “coor-
dinate the flow of information from hospital workers to the police and state
agencies.”29 The hospital participates in a statewide program created in 2001
to support a multidisciplinary network of doctors “skilled in the detection
of child abuse.”30 The state pays the hospital in exchange for its physicians
reviewing suspected abuse cases and for their subsequent consultation with
police and child protection workers.31
The medical professionals involved in this arrangement are eff ectively
state actors.32 A federal district court so held when a doctor’s allegedly
incorrect diagnosis of shaking resulted in the removal of two children.33
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The court determined, “it cannot be disputed that the governmental task
in the field of child abuse could not function responsibly without the
invaluable input provided by medical professionals. And when those pro-
fessionals are not themselves governmental employees, it is equally beyond
dispute that the interrelationship between those professionals and the
purely governmental people involved in the decision-making process is
truly a close entwinement.”34
Working together with child protection workers and law enforcement
officials, doctors are subject to many of the influences that operate in non-
medical settings where investigation and prosecution are paramount. Even
apart from these external effects, institutional structures internal to child
abuse medicine—those designed to facilitate child abuse diagnoses—may
well reinforce certain diagnostic tendencies. There will be times when these
tendencies result in an accurate assessment. But a general proclivity toward
finding abuse is not likely helpful in this regard. Instead, it may increase the
odds of diagnostic errors weighted toward the false positive. As the old adage
instructs, if your tool is a hammer, the world looks like a nail.
SBS has survived the demise of its foundational tenets—a triad pathog-
nomonic of shaking with no possibility of lucidity—due in part to the
dynamics of child abuse specialization. These same dynamics also suggest
reasons for misgivings about the diagnosis that has become its formal sub-
stitute. Even apart from whether external causation falls within the clini-
cal bailiwick (a subject to which we will return), identifying a universe of
alternatives and eliminating every one but abuse “to a reasonable degree of
medical certainty” is a highly malleable endeavor. In practice, the meth-
odology is quite variable; it introduces a new and rather striking level of
subjectivity.
Race and socioeconomic class, for instance, have been shown to affect
similar diagnostic determinations.35 This raises important questions about
the impact of a class divide between caregiver and employer, to say nothing of
national origin and immigration status. These influences may well affect the
extent to which alternatives to abuse are pursued, suggesting that in practice
differential diagnosis is not appreciably different from what has come before.
Prosecutorial Certainty
SBS has been fortified by decades of triad-only convictions. Over and over
again, people have been sent to prison based on the triad, lending credibility
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to its status as a marker of guilt. Through this process of reification, whereby

an abstraction is elevated to the status of concrete reality, the criminal justice
system has in essence validated the idea that the triad proves violent shaking.
The role of prosecutors is critical to the production of these decades of
convictions. If, either when SBS was first offered as a medical diagnosis of
crime, or later, when it softened and became AHT, prosecutors generally
declined to pursue criminal charges based on the triad, SBS would be his-
tory. As this counterfactual suggests, prosecutors are integral to the vitality
of the diagnosis. To be clear, the law enforcement response to SBS is not
monolithic. Around the country, some prosecutors routinely handle these
cases and others seldom do; some are quite aggressive in their charging deci-
sions, while others approach the triad with far more skepticism. But, overall,
prosecutors have been willing to accept the say-so of doctors and proceed
accordingly.
Deference to experts is not unique to SBS cases. But, in this context, the
relationship between prosecutor and allied physician is a particularly close
one. Here, the expert is the case: there is no victim who can explain what hap-
pened, no eyewitness, no corroborative physical evidence, and no apparent
motive for the violence. Doctors identify the occurrence of a crime and its
perpetrator, and their assurances are essential for a conviction. In conversa-
tion, prosecutors explicitly cite the certainty of their medical experts as jus-
tifying the pursuit of charges. (All the while, doctors tend to minimize the
importance of their own contributions to SBS convictions, noting that pros-
ecutions are brought by the state.)
When SBS was still relatively new to the criminal justice system, prosecu-
tors had little incentive to critically examine the scientific basis for claims of
pathognomony. The medical opinion was the proof, and prosecutors needed
to fully rely on it. Believing in the case required believing the doctor. Due at
least in part to a distinct disadvantage in evaluating research methodologies,
prosecutors did not press their experts hard enough to expose weaknesses in
the scientific foundation of the old SBS.
The scientific revision of SBS might have been expected to transform law
enforcement’s response to the triad; it did not. Despite a shifted consensus
that, by all rights, should promptly have ushered in a new era of prosecutorial
restraint, triad-only cases kept coming. Years passed before there was even a
hint of abatement—the logical result of increasing acquittals, dismissals, and
overturned convictions on strikingly similar facts. What explains the willing-
ness to prosecute triad-based charges even after the medical establishment
disavowed pathognomony, the nonexistence of lucid intervals, and the ability
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to pinpoint shaking as causal? What accounts for the commitment to perse-

vere when confronted with competing expert opinion regarding an alterna-
tive cause of the baby’s condition?
To answer these questions, we may assume that most prosecutors are moti-
vated by a desire to hold the guilty responsible for their actions, and that they
generally do not charge defendants believed to be innocent of wrongdoing.
Prosecutors pursuing these cases are convinced of guilt, meaning that SBS has
lingered because prosecutors genuinely believe it proves a crime. The triad
continues to exert an almost talismanic effect.
Training
Prosecutorial training is especially critical in SBS cases, where a complex and
evolving body of science is outcome determinative.36 As one leading instruc-
tor in the area urged, “investigators and prosecutors should obtain a basic
education on medical issues common to all of these cases.”37 Since most pros-
ecutors encounter SBS cases infrequently, few become experts in the issues
they raise.38 It is unsurprising, then, that a nationwide training apparatus
developed to disseminate information about the basic structure of an SBS
prosecution. For instance, the American Prosecutors Research Institute of the
National District Attorneys Association transmits newsletters,39 organizes
conferences, and provides other support for prosecuting the SBS case.40 The
National Center on Shaken Baby Syndrome has hosted and collaborated on
more than a dozen conferences since its incorporation in 2000.41 And prose-
cutors who are leaders in the field have published book chapters with instruc-
tion in handling SBS cases from investigation through trial.42
These training materials present a view of the science refracted through an
advocate’s lens. For instance, a 2001 publication asserts, “the [prosecution]
expert can testify that the forces the child experiences are the equivalent of a
50–60 m.p.h. unrestrained motor vehicle accident, or a fall from 3–4 stories
on a hard surface”;43 and “current research and professional consensus within
the medical literature clearly supports the conclusion that . . . there is no lucid
interval.”44 But these contentions had already been refuted (see chapter 2).
Similarly, from a book chapter entitled “Prosecuting a Case,” published
in 2006, “there is emerging consensus among credible medical experts that
when children have suffered serious or potentially fatal head injuries, they will
start to experience symptoms almost immediately after injury”;45 “[t]he col-
lection of ocular damage, subdural or subarachnoid bleeding over the brain,
axonal damage, and severe brain swelling is not seen in the same patterns in
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any forms of accidental trauma, but is seen in cases involving severe and vio-
lent shaking”;46 and “the medical field has reached substantial consensus con-
cerning many of the issues pertinent to criminal [SBS] cases.”47
When prosecutors are trained on the science of old, they remain unaware
of the ways in which the meaning of the triad has been revised. The digested
science describes a diagnosis upon which prosecutors can securely rely.
Because much of what prosecutors learn about the triad fails to acknowledge
the changed science, they are left ill equipped to evaluate their experts’ claims,
or to decide whether these claims can satisfy the legal standard of proof
beyond a reasonable doubt.
Caregiver Accounts
Prosecutors are often persuaded that the triad proves guilt—and thus that the
diagnosis is sound—by what their medical experts tell them (and what they
may have already been taught about the diagnosis). This strong belief in guilt
is then sealed by the suspect’s version of events, whatever its content.
There are three accounts most commonly offered to explain an infant’s
loss of consciousness or similarly severe neurological symptoms. One is that
their onset was unprovoked or without explanation. The second is that the
infant fell from a short distance. And the third is that the baby was shaken in
the course of revival efforts, or shaken only gently.48 Research over the past
decades has shown that each of these explanations is plausible. Natural disease
processes, even if undetected at the time, can cause the triad. So can short
falls. And re-bleeds can occur upon little force. But whatever the suspect’s
explanation, law enforcement officers conducting the interrogation tend to
“know” that the infant’s injuries were caused by violent shaking—the science
is still thought to prove this definitively. Any narrative is viewed as false and,
therefore, incriminating.49
Moreover, if the suspect’s story seems to change in response to interroga-
tion techniques, this fact itself may be used to support an SBS diagnosis.50
The ensuing interrogation confirms the suspect’s guilt. According to one vet-
eran SBS prosecutor, “[e]ach of the three most common histories, and others,
may be combined in patterns of changing histories as guilty adults attempt to
fabricate new explanations to respond to the probing or suggestive questions
of one or multiple interviews.”51
But even if the caregiver’s story remains constant, it too may be consid-
ered evidence of guilt.52 The “discrepant history”—commonly understood
as manifesting “when the history does not match the physical condition in
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front of you”—is seen as proof that the infant was shaken.53 Whatever con-
tradicts the scientific “givens” is deemed “discrepant” and a confession. Police
and prosecutors confirm their suspicions of SBS whenever a suspect provides
“a false, discrepant, evolving or absent history.”54 The suspect cannot avoid
self-incrimination; the investigator’s certainty of guilt must be reinforced.
Reiteration Effects
Researchers have established that the repetition of a statement (whether
true or not) increases certainty about its truth.55 This dynamic, referred to as
reiteration effects, has a direct bearing on the path of SBS. Across the coun-
try over decades, defendants were proven guilty of shaking babies to death
based on the presence of retinal hemorrhages, subdural hematomas, and cere-
bral edema. The presence of these three symptoms thus came to stand for
the proposition that someone shook a baby to death. As more convictions
occurred, the confidence level rose until it approximated certitude.56 This
suggests why, even as scientific understandings of the triad have become less
absolute, prosecutors maintain that it proves guilt. For many, new evidence
has no effect on fidelity to the diagnosis. “I think we’re still looking at cases
where children were injured,” explained one prosecutor. “How we prove that
may change.”57
Unwillingness to revisit the diagnosis as a general matter translates into a
case-specific stance that is much the same. With rare exception, prosecutors
remain wedded to their initial determination of a suspect’s guilt even when
presented with evidence of other possibilities, however probable.
Take the case of a man named Drayton Witt. Ten years after Witt was
convicted of murder, a new analysis of the autopsy report revealed an over-
looked blockage in the baby’s brain.58 When the medical examiner who
performed the autopsy was made aware of this blockage, he submitted an affi-
davit acknowledging that the baby likely died from a natural disease process.59
Even so, when Witt’s conviction was overturned, the County Attorney was
determined to try the case again. He remained convinced of the defendant’s
guilt: “[o]bviously, we believed it the first time around.”60 Eventually, in a
carefully worded motion, the state did dismiss the charges against Witt—not
because prosecutors had revisited their own assessment of Witt’s guilt, as the
County Attorney made clear, but because their retained expert was “unable to
offer an opinion with the requisite reasonable degree of medical certainty due
to the quality of the remaining evidence, leaving the state with no reasonable
likelihood of conviction.”61
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Staying Power
The triad retains its power to convict defendants of shaking babies to death or
serious physical injury. Prosecutors continue to bring cases, which they prove
with the usual testimony of medical experts. For these defendants, not much
has changed.
A few typical cases show how the old SBS lives on.
Stephanie Spurgeon
Stephanie Spurgeon ran an in-home day care in a small community north of
Tampa, Florida. In August 2008, she was convicted of murdering a baby in
her care, based on the triad.62
The state deliberately avoided the use of “shaken baby syndrome” through-
out the trial. This is probably because the county medical examiner, Doctor
Jon T., who performed the baby’s autopsy, was skeptical of the legitimacy of
the diagnosis. And he was willing to admit this under oath. “Do you believe
in [SBS]?” asked the defense attorney on cross. “No,” Doctor T. replied, later
adding that shaking a baby violently enough to cause severe brain injures
would in all likelihood cause injury to the neck or torso. Rejecting the SBS
label, Doctor T. instead identified the cause of the baby’s death as “blunt head
trauma.”63
Other prosecution witnesses offered various characterizations of what the
triad meant in this case. Doctor Sally S., a pediatrician and director of the
hospital’s child protection team, testified that “it was not accidental, it was an
abusive injury.” Asked how injuries could be so severe internally without any
injuries to the outside of the head, Doctor S. suggested that a child might be
thrown repeatedly onto a soft surface like a bed.64
The experts did not purport to know what Spurgeon did to the baby, only
that she somehow killed her. The triad was said to prove this, since the neu-
rological injuries were so traumatic that they must have occurred while in
Spurgeon’s care. Once the state conceded that shaking might not have been
the causal mechanism—as it had to, given that the main cause-of-death wit-
ness was, with respect to SBS, a nonbeliever—the theory of guilt became
noticeably vague. Spurgeon was guilty of aggravated child abuse, accord-
ing to the prosecutor, because she had thrown the baby against something
soft.65 As for proving the homicide, “[t]hat injury to that child occurred in
her [Spurgeon’s] home,” argued the prosecutor on summation. “That makes
her guilty of murder.”66
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Experts for the defense testified that clotting in the brain meant that the
bleeding began before the baby was dropped at the caregiver’s home. But
Spurgeon was convicted of manslaughter and, in August 2012, sentenced to
fifteen years in prison.67
Robert Wilkes
Robert Wilkes is serving a forty-year sentence in Montana for the death of
his three-month-old son. The baby had spent the day at a neighbor’s house.
But the prosecution contended that Wilkes, who was recently awarded legal
custody of his son, shook the boy upon their return home. The 911 call came
less than an hour after the two left the neighbor’s house, upon Wilkes finding
the baby vomiting from his nose and mouth. According to the state’s experts
at the 2010 trial, because the infant drank from a bottle just before leaving the
neighbor’s with Wilkes, the injury could only have occurred later, when the
father had custody of his son. Aware of the debates regarding SBS, the pros-
ecutor carefully avoided using the term, referring instead to non-accidental
trauma, or abuse.68
The defendant presented no alternative cause of the baby’s injuries. His
only expert, a forensic pathologist, did little to dispute the state’s theory. In
contrast, the state had what the prosecutor called “a row of doctors” to explain
that the triad proved Wilkes’s guilt.69
Wilkes is appealing his conviction after his new lawyers consulted experts,
who discovered that the baby suffered from a number of medical conditions,
including a rare liver disease, a chronic subdural hematoma, and venous sinus
thrombosis.70
Carolyn Bellamy
Carolyn Bellamy, a sixty-year-old Oregon woman, was convicted in 2011 of
criminally negligent homicide. Based on the presence of a small subdural
hemorrhage and minimal retinal bleeding, the state alleged that Bellamy had
shaken to death her two-year-old granddaughter.71
According to Bellamy, the toddler began to convulse after falling off the
bed.72 But the state’s child abuse specialist diagnosed SBS, rejecting the possi-
bility that the child’s neurological symptoms could have resulted from a short
fall.73 To cause the bridging veins to tear, as occurred in this case, the doctor
explained, violent shaking would be required.74 “If anyone would see this kind
of action, they would recognize it immediately as likely to cause significant
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harm to the child,” proclaimed the doctor.75 Bellamy, already in jail for over
a year, was sentenced to the maximum of eighteen months incarceration.76
Aritzaid Santiago
Aritzaid Santiago, a Texas mother of twin toddlers, was sentenced in 2008
to five years in prison for causing injury to a five-month-old in her care.77
Santiago’s lone expert testified to the baby’s unusually large subarachnoid
space and explained that it predisposed the brain to bleeding.78 But the state’s
pediatric neurosurgeon insisted that only shaking could cause the infant’s
brain injury, which included minimal retinal bleeding.79
Tina Sardisco
In 2012, Tina Sardisco, a mother raising three young girls in suburban
Rochester, New York, was convicted of shaking a six-month-old baby in
her care.80 Sardisco told police, and later the jury, that she was feeding the
infant a bottle when the girl began choking.81 After patting the baby’s back,
Sardisco dropped to her knees and attempted the Heimlich maneuver.82 She
then dialed 911, frantically calling, “Help me please. The baby’s choking.”83
But when retinal hemorrhaging and subdural bleeding were found, doctors
diagnosed SBS.84
By the time of trial, the baby’s condition had improved substantially,
though doctors were unsure whether she would experience future health
problems.85 According to the state, the medical evidence proved that the baby
was violently shaken.86
Even after she was convicted, Sardisco continued to deny wrongdo-
ing and insist that she had done everything she could to revive her friend’s
choking baby.
“I should have been better trained,” she suggested at her sentencing. “I just
ask for your mercy. Please don’t take me away from my children.”87
Sardisco was sentenced to three years in prison.88
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4 TRIALS
Caregivers who went to trial when the triad was considered

“pathognomonic” of abuse were bound to lose. The case for guilt
was uncomplicated: the diagnosis itself proved that the baby was
shaken. The shaking must have been awfully rigorous, moreover,
since the force required to bring about the infant’s neurological
symptoms was as great as the force generated by a head-on car
crash or a multistory fall. Often an expert would demonstrate this
shaking in court with a baby doll. Over and over again, the doll’s
head would snap back and forth while the doctor used every bit of
strength to demonstrate the perpetrator’s criminal mindset.
The identity of the abuser was also established by the prosecu-
tion’s expert testimony. Since doctors dismissed the possibility that
an infant could experience any period of normalcy following the
onset of the triad (which, again, must have resulted from shaking),
it was obvious that the perpetrator was the person last with the
conscious baby. If the child died, SBS became a diagnosis of mur-
der. Medical testimony established the mechanism of death, the
identity of the killer, and a criminal mental state. If the child lived,
doctors diagnosed felonious assault in much the same manner.
The defense could do very little at trial. In many cases, no expert
testimony whatsoever was offered, since a challenge to the science
of SBS was not viewed as viable. There was little known basis for
suggesting alternative causes of death or injury, especially where the
prosecution pre-dated widespread recognition of abuse “mimics.”
Rather, defendants tended to argue that someone else could have
done the shaking, or that the shaking wasn’t quite violent enough
to warrant a murder conviction. Either way, the jury was rarely per-
suaded. Presented with uncontroverted medical evidence of guilt,
jurors voted to convict.
The softening of SBS has changed how these cases are tried.
(I will later describe growing reluctance on the part of prosecutors
to try triad-only cases at all.) As a general proposition, the prosecu-
tion no longer introduces doll demonstrations or analogies to car
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crashes and building falls. The same is true for categorical claims regarding
what now is often referred to as Abusive Head Trauma, or AHT. Claims of
pathognomy have been discarded, at least in the abstract. So has a singular
commitment to shaking as the causal mechanism. Experts now insist that pos-
sible explanations other than abuse have been ruled out.
Yet in fundamental ways, SBS trials continue to look much like they
always did. Though surface features of the diagnosis have been retooled in
notable ways, its essence as a crime-proving construct abides. In recognition
of the new unknowns, prosecution experts acknowledge that retinal hemor-
rhages and subdural hematomas can have non-abusive origins. But as usual,
they maintain that—in this particular case (the case on trial)—shaking is the
cause of the triad. Similarly, while conceding the existence of lucid intervals
as a general matter, experts assert that, in this particular case, the caregiver
with the baby last was responsible. Notwithstanding a different way of talking
about SBS, doctors continue to diagnose crime.
Defendants increasingly, though not invariably,1 mount challenges to the
science, presenting one or more doctors to offer a competing understanding
of the triad’s evidentiary worth. Even in the face of conflicting medical testi-
mony, however, juries still convict.
Deciding Guilt
Consider the courtroom dynamics that bear on SBS verdicts. To begin, a baby
has died or become permanently impaired. This fact alone may well influ-
ence the tenor of jury determinations. The tragedy that confronts a juror (or
sometimes a judge acting as fact finder) presents as a need to resolve the case
on trial. A guilty verdict is portrayed by the prosecution as a way of mitigat-
ing tragedy—or, as the typical closing argument urges, “doing justice” for the
baby, the quintessential innocent. The other option, a not guilty verdict, is
easily perceived as the opposite—that is, failing to do justice for the baby,
leaving tragedy unmitigated. Under these circumstances, the pull toward con-
viction is powerful indeed.
Moreover, jurors come to the courtroom with an expectation that a
crime has been committed. The archetypal investigation and trial center on
the mystery of “whodunit,” not whether there is in fact an “it.” According
to this conventional trial narrative, the task at hand is to determine whether
the defendant on trial is the culpable party. Identity is a perennial concern,
and it tends to displace inquiry into whether any bad act transpired. (This
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Trials • 47
inquiry is similarly supplanted by “state of mind” defenses.) Given the stan-

dard trial model, no-crime prosecutions, as SBS cases may be, tend to lie out-
side the bounds of effective evaluation.2 Jurors may well take for granted that
the involvement of law enforcement was triggered by a crime—in this case,
the abuse of an infant—and focus their deliberations on testing the connec-
tion between the crime and the defendant, as opposed to questioning the
occurrence of a crime.
The default presumption that the baby was wronged is deeply seated,
priming receptivity to “justice for the baby” arguments.
From the prosecution, jurors hear a coherent account of guilt: each medical
expert testifies to the same basic version of events. In contrast, most defen-
dants are unable to establish a definite mechanism of injury. The current state
of the science typically does not allow for identification of a single cause with
the same “reasonable degree of medical certainty” claimed by the prosecu-
tion’s doctors. Instead, the defense offers jurors a complex forensic picture
suggesting multiple potential sources of the infant’s neurological symptoms.
The state has the formal burden of proving guilt. But, as a practical matter,
the defendant must provide a better, more satisfying, account to prevail. Th is
burden is often insurmountable.
Even if the plausible explanations advanced by its experts fall short of a
unified account that proves innocence, the defense might argue that the alter-
natives cast doubt on the prosecution’s theory that no other scenario could
explain the baby’s symptoms. But research shows that this mode of persuasion
tends to be largely ineffectual.3 Burdens of proof notwithstanding, a single
narrative will almost always trump an amalgam of possibilities that contest it.
In SBS cases, what the defense asks of the jury is to surmount this psychologi-
cal barrier and acquit.
As a matter of law, the jury must not convict unless it is convinced of the
defendant’s guilt beyond a reasonable doubt. In triad-only cases, if the science
cannot bear this burden, the jury is supposed to acquit, even in the absence
of a known cause. But the reality is quite different on the ground where, to be
found not guilty, a defendant must disprove the version of SBS shared by the
state’s doctors. As we will see, jurors are not well suited to assess expert claims,
much less to adjudicate outstanding differences between opposing experts.
To the general public, SBS has come to be understood as a meaningful
marker of criminality. In its revamped formulation, the diagnosis commands
the faithful adherence of many physicians. These measures of accep-
tance serve as proxies for truth. Jurors often discount the various medical
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possibilities raised by the defense and accept in their stead what is far more
satisfying: professed certainty as to guilt. The basis for this certainty usually
goes unplumbed.
The Mantle of Science

As a medical diagnosis of crime, SBS falls squarely within the domain of
forensic medicine.4 The connection to other branches of forensic science is
rarely articulated, however. This is odd, since the work of physicians involved
in diagnosing SBS—pediatricians, radiologists, ophthalmologists, neurosur-
geons, and pathologists—is quite likely destined for the courts. There, the
scientific pedigree of SBS confers persuasive power.
In general, forensic science5 is highly captivating, quite apart from its
actual scientific value.6 For jurors, the “temptation” of forensic science is real.7
Researchers debate whether this effect is more pronounced in this age of
CSI.8 (For those unfamiliar with it, CSI: Crime Scene Investigation is among
the most popular television shows in the world; it focuses on forensic tech-
niques, real and imaginary.) But we need not rely on the so-called CSI effect
to understand why forensic science claims are seductive.
In this regard, the work of Tom Tyler is useful. Tyler, a professor of both
psychology and law, cites “widespread evidence indicating that people already
overestimate the probative value of scientific evidence,” irrespective of a CSI
influence.9 When scientific claims are used to establish guilt, they are instru-
mental to jurors, who “see within scientific evidence the level of certainty that
makes them comfortable with a guilty verdict.”10 The claims of science are
accepted “because jurors seek a form of justification that is plausible and com-
pelling to bolster their own desire for certainty.”11 Tyler further observes that,
“[a]lthough people could legitimate their conclusions in any number of ways,
viewing scientific evidence as conclusive is an obvious approach.”12 When the
motivation to punish a wrongdoer is high, this tendency to “exaggerate the
value of scientific evidence” is even stronger.13 These dynamics directly impact
SBS prosecutions, where jurors are highly motivated to punish. (The use of
science to establish guilt lends credibility to a guilty verdict outside the court-
room, as well.14)
The draw of forensic science helps explain not only the lure of SBS, but
also its pitfalls. Of late, endemic problems with forensic science have been
uncovered, leading the U.S. Supreme Court, per Justice Scalia, to acknowl-
edge that “[s]erious deficiencies have been found in the forensic evidence
used in criminal trials.”15 A number of important developments cast in
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Trials • 49
doubt the reliability of a body of evidence considered sacrosanct. In 2009,

the National Academy of Sciences (NAS) released its report on forensic sci-
ence, which the Supreme Court cited in discussing the “serious deficiencies”
that had become apparent. The NAS committee, comprised of an august
group of forensic and legal experts, articulated a simple “bottom line”: “In
a number of forensic science disciplines, forensic science professionals have
yet to establish either the validity of their approach or the accuracy of their
conclusions.”16
The problem was especially acute in the forensic identification sciences,
which purport to match crime scene evidence with its source. The report
challenged generally accepted truths about voiceprints,17 compositional
bullet lead,18 handwriting,19 hairs,20 fibers,21 bite marks,22 tool marks,23 shoe
prints and tire tracks,24 latent fingerprints,25 bloodstain patterns,26 and fires.27
The committee’s conclusion was emphatic: “With the exception of nuclear
DNA analysis . . . no forensic method has been rigorously shown to have the
capacity to consistently, and with a high degree of certainty, demonstrate a
connection between evidence and a specific individual or source.”28
For decades, scholars had warned of this very problem.29 Still, given the
prestige of the National Academy30 and the process by which it reached its
conclusions,31 publication of the report was rightly understood as a “water-
shed moment for the forensic sciences.”32 Across a wide spectrum of forensic
methodologies, scientific validity was suddenly suspect.33
Faith in SBS has not yet been subjected to the same institutional cri-
tique. The diagnosis was not mentioned in the National Academy’s report,
and overall it has remained largely insulated from the insights of the failed
science movement—in particular, that individuation-like claims may not be
warranted. Prosecution experts still testify to certainty regarding the triad,
and the patina of science continues to sway jurors.
Case on Trial
The following cases provide a more detailed account of how SBS trials result
in convictions.
Beverly Moore
In 2005, Beverly Moore was convicted of murdering two-year-old Avery by
shaking him to death.34 Moore and her son Anthony, then five, lived with
05_9780199913633.indd 49 1/29/2014 4:19:39 PM

Avery and his father, Todd Snyder, outside of Oklahoma City. On the day
in question, Moore had been alone with Avery for less than an hour before
she called 911 to report that he had lost consciousness. When the paramed-
ics arrived, Moore explained that she had stepped away from the boy for a
moment when she heard a “thud,” and returned to find him in an unrespon-
sive state.35
Eventually, at Moore’s trial, a prosecutor would describe for the jury how
Avery came to be diagnosed with SBS. Paramedics arriving on the scene
immediately “knew” that the toddler had been abused. “Avery couldn’t talk,”
told the prosecutor, “but his body was talking, and he was exhibiting all the
signs and symptoms of closed head trauma. . . . [Paramedics] knew that he had
suffered severe head trauma and they knew that what [Moore] told them and
the explanation that she gave didn’t in any way match with what they were
seeing in him.” Despite the absence of any grip marks or bruises, paramedics
were sure that this was a case of abuse.36
The director of the hospital’s pediatric intensive care unit, Johnny G., who
first saw Avery in the emergency room, quickly reached this same conclusion.
As the prosecutor would later explain to the jury, Doctor G. “immediately
knew, again, as the paramedics, that Avery had suffered severe closed head
trauma. . . . With the symptoms that Avery was having and with his exami-
nation into the eyes, [Doctor G.] was able to determine that Avery was the
victim of a very violent type of abuse called shaken baby or shaken impact
syndrome.” Retinal hemorrhages were the “telltale signs for shaken baby,”
according to the prosecutor, “so [Doctor G.] at that point, of course, knows
the story doesn’t match at all. He knows that Avery has been abused,” and that
the “effects of this shaking are almost instantaneous.” Police were dispatched
to the hospital to question Moore. But at this point, “Avery’s body had already
told the doctors what had happened.”37
The first officer to speak with Moore, Keith Medley, responded to the hos-
pital after receiving information that a child had been admitted. Already the
police “felt there was child abuse,” Officer Medley would recall in his trial
testimony. After learning that the ambulance team was suspicious of Moore’s
account, he then spoke with Moore himself. Moore again recounted the same
version of events involving a “thud” and the discovery of Avery in a clearly
impaired neurological condition. Officer Medley concluded that “something
didn’t add up.”38
When Inspector Sergeant Randy Kirby began questioning Moore, he had
already spoken with Doctor Johnny G., the pediatric intensive care physi-
cian.39 The conversation persuaded Inspector Kirby and his partner in the
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Trials • 51
interview room that Moore was guilty of shaking Avery. The detectives’ con-
fidence in Moore’s culpability—a confidence utterly derivative of the doc-
tors’—was a theme that recurred throughout the interrogation. At various
points, one of the two detectives told Moore,
“I know you did something in there.”

“I don’t think you did. I know you did.”
“It’s not a matter of maybe it happened. It’s not like a broken arm and maybe
you broke his arm, maybe you didn’t. It’s not a case like that. This hap-
pened okay. And the doctor has said it happened.”
“The doctor has told us that there’s only one thing that caused this boy’s
injuries. Somebody shook him. Beverly, there was only two people in the
house. You and Avery.”
“There’s nothing that could have happened in the living room or in that
kitchen that would have caused the injuries that baby’s got. There’s noth-
ing. There’s only one thing.”
“This is not a situation where we say, oh, maybe she’s telling the truth, maybe
she’s not. We know you’re not telling the truth. The evidence proves it.”
“And you think if you’re charged with this, and they parade five or six doctors
in there with all these slides and everything else on how this occurs and
how this is the only way that it occurs, and then Beverly gets up there and
says, well, I don’t know. He disappeared for a few seconds and next thing
I know, his tongue is hanging out and he’s pale. What do you think the
truth is going to say? It doesn’t happen that way. It ain’t going to fly.”
“We’ve got years of medical science to prove that it happened and a bevy of
doctors to testify that it happened and what caused it. And it wasn’t a kid
throwing himself down on the floor throwing a tantrum.”40
For her part, Moore could only speculate about what happened during
the few seconds when Avery was out of her sight, prior to the “thud.” (She
guessed he may have “threw himself down in a temper tantrum.”) But, as to
the larger question of what caused Avery’s collapse, Moore had no idea. She
wasn’t a doctor; she told Inspector Kirby over and over again, “I don’t know
what happened.” And, “I wish I knew what happened.”41
For most of the interrogation, Moore was adamant about what did not
occur: “I did not shake him.” She said it again and again. “I didn’t do any-
thing. There’s nothing to come clean about, sir.” At the suggestion that she lost
her temper because Avery was upset at his father’s departure, she responded,
“that’s extremely crazy. I mean—he’s like that every time.”42
05_9780199913633.indd 51 1/29/2014 4:19:40 PM

At one point, there came a repeated exchange of accusations and denials:
Moore: I did not hurt him.

Detective 2: Yes, you did.
Detective 1: You did hurt him.
Moore: I did not hurt him.
Detective 1: You did hurt him.
Detective 2: Yes, you did.
Moore: I did not.
Detective 1: If you didn’t hurt him, he wouldn’t be up there.
Moore: I did not hurt him. . . . This is a nightmare.43
After some time, Moore said she wanted to see her son, Anthony. She was
informed: “We need to know what (inaudible) and that (inaudible). You
need to tell us what happened. Please tell us the truth. For everybody’s sake.
For Avery’s, for Todd’s, and for Anthony’s. And for your own.” To this, Moore
replied, “I already know I’ll be in jail no matter what I tell you.”44
After hearing that “the truth is what determines that,” she described the
only version of events that, according to detectives in a position to let her see
her son, might be deemed truthful. She finally uttered the words, “I shook
him,” and demonstrated three or four shakes—shakes so gentle that, as doc-
tors called by the state later agreed, they could not possibly have caused
Avery’s symptoms.45
A court reviewing Moore’s conviction six years later would characterize
her “confession” as an “insist[ence] that she had not lost her temper and had
shaken the boy mildly.”46 According to Moore’s trial testimony, she told the
detectives what they wanted to hear in hopes that they would release Snyder
(who police were also questioning) to be with his son as he lay dying.47
Regardless, evidence uncovered after the trial established that Moore’s admis-
sion to shaking Avery, even if believed, could not support a finding of guilt.48
In other words, the defendant’s conduct—supposing it did include shaking—
was not the cause of Avery’s death. But, as we will see, this evidence would not
emerge until many years after Moore’s interrogation.
When she came to trial in 2005, Moore was confronted (as predicted)
by a bevy of medical experts convinced, based on the triad, of her guilt. But
first, Avery’s father, Todd Snyder, testified. He explained that his son was
acting “tired” but “normal” on the day in question. Snyder left the house
in the early afternoon for somewhere around thirty minutes; when he
returned, paramedics had arrived.49 Next, one of the responding paramedics
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Trials • 53
testified that Moore’s story was not consistent with Avery’s condition. Over
a defense objection to the witness’s lack of qualifications for making this
medical determination, the paramedic was permitted to opine, “I felt like
what she had been telling us was a lie and that she had done something to
the baby.”50
As the prosecutor indicated to the jury at the outset, the crux of the case
against Moore was the testimony of Doctor Johnny G., the pediatric inten-
sive care physician. In the course of his initial exam of Avery, after hearing
from the emergency room nurse that the boy had rolled off the sofa, Doctor
G. “immediately noticed” hemorrhages in both eyes.51 The questioning at trial
proceeded as follows:
Q: And the specifics of having the hemorrhages in the back of both of the
eyes, does it give you any type of indicator or any type of initial warning,
if you will, about what type of trauma this baby has suffered?
A: It starts to clue me in to suspect intentional injury to a child.
Q: And why is that?
A: As I have done my cursory exam on this child, I’ve noticed no evidence of
trauma to the skin, no bruising, no cuts, no scrapes, nothing that looks like
there’s any external signs of trauma that I can see on my just flesh exam,
number one. Number two, the history does not go along with the clini-
cal findings that I’m seeing. A normal, well two-year-old doesn’t roll off
the sofa and now he’s unconscious and he’s got evidence of brain injury.
So that concerns me; that the history does not go along with what I’m
actually seeing. And then, thirdly, when I look into the back of the eyes
and I see evidence of hemorrhages on both sides, that keys me into that
I should consider this as a brain injury and that’s consistent with shaken
baby syndrome which heightens my awareness that this is an intentional
injury to this child.52
Later, Doctor G. reiterated, “it is my medical opinion that he could not

have inflicted the degree of brain injury that he had when he arrived at the
hospital by a trivial fall onto the floor.” Having ruled out this possibility,
Doctor G. concluded that the baby was shaken “to the degree that any inno-
cent bystander would recognize that that degree of shaking would be hazard-
ous to that child.” In other words, Avery “was shaken back and forth violently.
Not trivially. Violently. Enough to snap the baby’s head back and forth (indi-
cating) and throw his brain up against his skull both front and back,” tearing
blood vessels in the brain and eye.53
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Doctor G. conceded that “the actual true mechanics of exactly what hap-
pens has not been really, really truly defined.” He was, however, confident
that, because of the “degree of injury” revealed by the CT scan, Avery could
not have been injured without immediately losing consciousness. Indeed,
Doctor G. felt “within a medical certainty that it would have been absolutely
an immediate onset.” When asked on cross-examination whether it was pos-
sible that Avery had any other brain damage before this incident, Doctor
G. said no.54
The next witness was Doctor David K., an ophthalmologist, who was
asked by the doctors treating Avery to confirm the SBS diagnosis—in Doctor
K.’s words, “to look at the eyes and see if there was a consistency of, you know,
eye findings with shaken baby syndrome.” Finding what he described as
“thousands” of retinal hemorrhages in Avery’s eyes, some “flame shaped,” and
one detached retina, the doctor concluded that trauma was the only reason-
able explanation for the child’s condition.55
Doctor K. repeatedly emphasized that a fall could not possibly bring
about the observed symptoms, and he was adamant that shaking could be
the only cause: “this is the type of injury that, you know, you can definitely
see that there’s definitely been shearing force of someone shaking the baby
to cause these types of injuries”; and “this has to be a shaken type of injury.”
(The American Academy of Pediatrics would soon adopt the nomenclature
of AHT to account for doctors’ inability to differentiate between types of
force.56) Doctor K. assured the jury that the mechanism of injury was shak-
ing, not impact. “Hitting against the floor doesn’t cause it,” he declared. “It’s
more the violent shaking back and forth that causes the injury. And that’s
why they call it shaken baby syndrome, not, you know, multiple trauma to
the head syndrome.”57 (Again, AHT contemplates multiple mechanisms of
trauma.58)
Doctor K. could estimate only that the injuries were less than a week old
when Avery was brought to the hospital. On the timing question, he deferred
to Doctor Johnny G., the pediatric intensive care doctor, admitting that he
(Doctor K.) is “the guy that gets called in at the end that says, you know, what
happened—you know, are the eye findings consistent with shaken baby syn-
drome. I mean, that’s what I get called in for.”59
The final medical witness for the state was Doctor Chai C., a forensic
pathologist. Before beginning Avery’s autopsy, Doctor C. learned “some
background information”—in particular, that “the child was admitted to
hospital with a head injury with impression of shaken impact syndrome,” and
that this was “a normal child.”60
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Trials • 55
Doctor C.’s direct examination proceeded as follows:
Q: Were you given any type of information as to the story as to how Avery
ended up in the condition that he was in?
A: Well, just including through our agent which contact through the hospi-
tal, it was the—the father of the girlfriend put him in a bedroom and con-
tinued to cry so she put him on the carpeted floor and shook him while
hitting his head on the floor.”
...
Q: The information that you received comes from other sources, the hospital,
the police, is that correct?
A: I believe that is correct.
Q: . . . You told us earlier that before you begin an autopsy you want to know
how the body has ended up with you and the medical history. Are those
things—things that you take into consideration as part of your diagnosis
and as part of your autopsy report?
A: Yes.61
Doctor C. found subdural bleeding and swelling in Avery’s brain, along

with injury to the back of his head, and retinal hemorrhages that were “highly
suggestive of shaken baby syndrome” because they were in the anterior cham-
ber (front of the eye), rather than the posterior (back part), which would be
connected with natural disease. Despite the absence of neck injury, Doctor
C. concluded that Avery’s death was caused by a combination of shaking and
impact (the findings were “consistent with . . . a shaking episode where [Avery
was] being slammed onto the floor). The doctor called this “blunt force head
trauma” (which generally refers to trauma that does not penetrate the skin)
and classified the “manner of death” as “child abuse, homicide.”62
The state’s remaining evidence came from the interrogating police officer,
Inspector Kirby, who summarized the session with Moore. The videotaped
interrogation was then admitted in evidence.63
At trial, the defense did not contest the prosecution’s basic theory of the
case, conceding that Avery was shaken to death, and shaken on the afternoon
he was brought to the hospital. As defense counsel told the jury during his
opening statement, “there’s no disputing what they’ve said in medical. We’re
not here to say that didn’t happen.” The baby “died violently,” defense counsel
told the jury, but it was not Moore, but Snyder who was the abuser that day.64
On the validity of a triad-based SBS diagnosis, defense counsel acqui-
esced to the state’s experts. His deference was so extreme that, during
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cross-examination of Doctor Johnny G., Moore’s attorney candidly remarked,

“I don’t mean in any way to attempt to challenge you, because you’ve been a
doctor way too long.”65 In keeping with this orientation, defense counsel did
not question Doctor G., or any of the other prosecution experts, regarding
their failure to mention, much less perform, a differential diagnosis in the
case. This left the jury with an uncontested impression of the triad as pathog-
nomonic of shaking. Moore’s attorney neglected to explore the basis for this
opinion, or even to question the state’s experts about any alternative expla-
nations for the child’s symptoms (with the exception of the possibility that
Snyder played too roughly with Avery before leaving the house). Overall,
defense counsel did little to challenge the notion that, since the doctors pro-
fessed to know Moore had done this, she must in fact be guilty.
After the prosecution rested its case, Moore testified in her defense. The
jury learned that she was president of her son’s elementary school PTA and
that she and Snyder were raising Anthony and Avery together as a family.
Moore once again relayed the version of events she had given to the paramed-
ics and police officers. She said that she had never shaken Avery. When asked
about changing her story toward the end of her interrogation, Moore said, “I
wish I could explain how that whole day felt. I can’t. I kind of felt like—like
everything that I cared about was gone.” As she described it, “my whole world
had just fell apart. . . . My son was in DHS custody, Avery was at the hospital
and they said that he wasn’t going to live, and Todd told the police that I had
shaken my son. I just kind of felt like nothing was reality at that point.”66
On cross-examination, the prosecutor asked Moore whether she believed
that Snyder inflicted Avery’s injuries. She first answered, “I don’t know,” and
then later, “I know that I did not.”67 In a bizarre sequence, the prosecutor
(without drawing what should have been an obvious objection) questioned
Moore on her own assessment of the expert medical testimony presented at
trial by the state. Moore’s responses demonstrate the unassailable quality of
claims regarding the triad.
Q: Do you agree with the medical testimony that this jury has heard that
Avery Snyder died as a result of shaken baby impact syndrome?
A: I don’t know anything about the logistics of it. I would have to agree.
Q: Okay. So you agree somebody shook him and struck his head on some-
thing and that resulted in his death?
A: Yes, according to what they testified to.
Q: Who else could have done that but you or Todd Snyder, in your opinion?
A: Only the two of us were present in the house that day.68
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Trials • 57
Even as she steadfastly maintained her innocence, Moore was forced to

accept the single narrative offered by the state’s doctors. These experts allowed
for no competing versions of fact, nor did they acknowledge that alternatives
might exist. Despite the burden implicitly placed on Moore to explain Avery’s
injuries, she could not do so. She was not a doctor.
Her own lawyer consulted only one expert witness, who agreed that Avery’s
death was caused by shaking, while suggesting that the timing of the shaking
was unknown.69 This was little help to Moore. The state and its experts had
shrunk the universe of potential explanations for Avery’s condition so com-
pletely that, though she testified on her own behalf, Moore could not move
beyond these parameters. Although it would later prove faulty, the medical
evidence admitted against her at trial became synonymous with truth.
On cross-examination, the truth status of the medical evidence was used
against Moore:
Q: Through the course of 19 months it’s taken to get this case to trial, you
learned about shaken impact and medical and things that go on in a baby’s
brain whenever they go through this type of trauma, correct?
A: No.
Q: You just learned it this week?
A: Yes, sir.
Q: At some point, ma’am, did you believe that Avery just did this to himself
in throwing a temper tantrum?
A: I didn’t know.
Q: You do not contest that Avery had bilateral retinal hemorrhages.
A: (No response.)
Q: You don’t contest that, correct?
A: Correct.
Q: You don’t contest that he had bilateral vitreous hemorrhages?
A: Correct.
Q: You don’t deny that he had retinal detachment?
A: Correct.
Q: You don’t deny that [Doctor K.] said the only way for him to get this is
from a violent shaking to his head, correct?
A: Correct.70
Moore, of course, had no basis for an opinion about the medical findings
in Avery’s case or their significance. These questions called for a kind of exper-
tise that she simply did not possess. The absurdity of asking her about bilateral
05_9780199913633.indd 57 1/29/2014 4:19:40 PM

retinal hemorrhages suggests the futility (and the unfairness) of asking her
to determine what happened to Avery. Moore’s answer all along—“I don’t
know”—may well have been the honest answer. But, though innocence is to
be presumed, a jury faced with prosecution-side certainty is seldom moved
to acquit if the defense cannot provide a plausible medical explanation for
a baby’s condition. Even when defendants insist that they are innocent, this
task necessarily falls upon a medical expert. Moore had no such expert, for
reasons that would become clear only after the trial. After presenting a few
character witnesses, the defense rested.
In closing argument, Moore’s lawyer reiterated, “we didn’t dispute that this
baby had been shaken. No question about it.”71 The prosecution emphasized
the very same point on summation: “Avery’s body talked to us. And there’s
not a credible doctor who’s going to disagree with that. And you didn’t hear a
credible doctor that will disagree with that.”
In conclusion, the prosecutor told the jury that Moore’s explanations
“don’t respect the evidence,” and—partly because of this disrespect—she
should be held accountable for Avery’s death by imposition of the maximum
authorized punishment: life without parole. The jury was told, “that is what
justice requires, and that’s what Avery Snyder requires.”72
Less than three hours later, and just three days after her trial began, Moore
was found guilty of murder in the first degree. The jury fixed punishment at
life in prison and Moore was sentenced accordingly.
Alma Calderaro
In 2001, Alma Calderaro arrived in the United States as a political refugee
from Albania.73 Calderaro had been pursuing a nursing certificate but, after
settling in Queens, New York, unable to speak English, she found work as a
restaurant hostess and a sitter, first for her sister, then for a friend.
In 2009, now married and the mother of a four-year-old boy, Calderaro
stood accused of assaulting a seven-month-old baby—Fiona, the daughter of
her friend—causing permanent developmental impairment. The diagnosis
was SBS and, to support it, the state called twelve expert witnesses to testify
about the meaning of the triad. The slate of doctors presented PowerPoint
slides, a computerized enactment of a shaking episode and its hypothesized
effects, and an in-court demonstration using a doll. The account they pro-
vided was consistent, coherent, and unequivocal: the baby had been violently
shaken just before her neurological collapse. In this case, the triad could mean
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Trials • 59
only that the caregiver with the infant, Alma Calderaro, was guilty of abuse.
All other possibilities were ruled out.
In what might seem a complicating factor, chronic subdural bleeding was
discovered on Fiona’s CT scan. Yet this finding turned out to be unimportant
at trial. According to the state’s experts, the old bleeding in Fiona’s brain was
irrelevant. Some even ventured to say it was proof of earlier shaking, though
this theory was never developed. Overall, the doctors’ certainty that the
defendant shook the baby was in no way diminished by the fact that her brain
was already bleeding when she was dropped at Calderaro’s that morning. And
the jury was given no reason whatsoever to question damning testimony that
the triad proved the defendant’s guilt. The defense called not a single expert
witness.
So the jury did not hear alternative interpretations of the chronic sub-
dural bleeding or other explanations for Fiona’s neurological collapse. Nor
did it learn about major revisions to scientific claims made on behalf of the
triad: the move away from shaking as exclusive etiology; the recognition of
lucid intervals; the unfolding of research on abuse “mimics.” Not only was the
state’s proof of guilt overwhelming, considering both the number of experts
and their confidence level, but the medical evidence went essentially unchal-
lenged. It is difficult to imagine a jury not convicting.
Doctor Debra E., a pediatrician and the director of the hospital’s child
protection center, was the state’s child abuse expert. A member of the Ray
Helfer Society, the prominent organization of doctors dedicated to child
abuse, Doctor E. had served as the chair of her hospital’s child protection
team for over a decade. She first provided the jury with a brief primer on
SBS. “Shaken baby syndrome is a severe form of child abuse that results
when an infant is violently shaken or violently shaken and slammed and
causes cranial rotational acceleration and deceleration,” the pediatrician
explained.74 In lethal cases, she added, up to 70 percent of SBS cases show
neck involvement.75 (Doctor E. was not asked to provide support for this
proposition.76 )
In Doctor E.’s testimony discounting the possibility of a lucid interval,
“violent shaking” was posited as the causal mechanism:
Q: To a reasonable degree of medical certainty, when do brain injury symp-

toms occur in relation to a violent shaking?
A: They occur immediately or almost immediately following a violent shak-
ing episode.
05_9780199913633.indd 59 1/29/2014 4:19:40 PM

Q: And to a reasonable degree of medical certainty, can an infant suffer severe

brain injury and be normal after a violent shaking?
A: No.77
Doctor E. recounted that, when she was called to consult on Fiona’s case
the night the baby was brought to the emergency room, the state’s child pro-
tection hotline had already been notified by the hospital of suspected abuse.
Doctor E. further described that, when there is a subdural hemorrhage found
on a head CT scan and “no explanation” for that bleeding, “that clearly falls
under the category of suspicion.” The doctor’s “preliminary assessment” was
that “the likely etiology was shaken baby syndrome.”78
Under hospital protocols, Doctor E. was responsible for mobilizing the
requisite medical team and requesting the necessary tests. Before “fully diag-
nosing” Fiona, she felt she needed an official reading of the CT scan, a screen-
ing for bleeding disorders (which came back negative), a skeletal survey (also
negative), and an eye exam (which found retinal bleeding). By the end of
the day, Doctor E. had confirmed her initial impression. She concluded that
“Fiona’s clinical presentation, clinical findings and history were consistent
with the diagnosis of shaken baby syndrome.”79
Fiona’s case was presented by all of the state’s experts as paradigmatic
of SBS. The pediatric neurologist, Doctor Joseph M., explained the basis
for his opinion that Fiona was shaken: “Well, the clinical story was typi-
cal for somebody with shaken baby syndrome. One moment the baby is
quiet or going about her business of being an infant and happy. And in an
instant she changes, she becomes unresponsive and eventually has seizures.
And, of course in our findings, our finding of retinal hemorrhage and dif-
fuse brain injury or what we call encephalopathy, when the entire brain is
not functioning.” In short, the mechanism of injury must have been violent
shaking.80
When asked about the timing, the doctor’s testimony was precise and
unequivocal. That day, Fiona had apparently eaten, played, and napped with-
out incident. The shaking occurred around 5:00 p.m., according to Doctor
M., just before Calderaro called Fiona’s father to tell him that something—
she didn’t know what—was very wrong with his baby.
Q: [Doctor M.], if you learned that up until 5:00 p.m. on January 11 Fiona
was eating and behaving normally and that around 5:00 p.m. Fiona became
lethargic, had difficulty breathing, suffered an altered mental status, based
on the extent of her brain injury and her complete clinical findings, do
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Trials • 61
you have an opinion to a reasonable degree of medical certainty as to the

timing of the infliction of her injury?
A: I think the timing was around 5:00 p.m. the date that you mentioned.
Q: And what is the basis for your opinion?
A: The basis is, you have an infant doing well and happy and in an instant her
disposition changes completely. She becomes unresponsive, ill, seizures, so
I think that’s a pretty acute event.81
On cross-examination, Doctor M. was not questioned about the docu-

mented cases of lucid intervals (also involving the triad), or the medical estab-
lishment’s general acceptance of lucid intervals as real. Nor was he pressed on
the reasoning that led him to conclude that “a pretty acute event”—meaning
just-inflicted injury—must have caused Fiona’s collapse.
Much of the remaining testimony on the part of the state’s experts was
conjecture. The pediatric critical care doctor, Doctor Mayer S., opined on the
significance of the retinal bleeding: “the more hemorrhages, the harder, the
more vigorous, the more violent the shaking was.” Doctor Alan J., the neuro-
radiologist who testified using a PowerPoint presentation, suggested, “if there
was a re-bleed of a subdural hematoma we will see the bleed in the setting
of in the middle of a chronic subdural hematoma.” (The doctor did admit
that “blood shifts and makes it tricky,” but this point was never developed
on cross-examination.) Doctor J., like the others, rejected the possibility of a
lucid interval by explaining, “whenever that child became acutely ill, that’s the
time that the baby was injured.”82
The state’s doctors insisted that they performed a “differential diagnosis”
in the case. But on closer analysis, the consideration of non-abusive alterna-
tives was decisively framed by SBS as the default. Doctor Mayer S. described
the potential causes of subdural bleeding in infants as trauma, aneurysm, or a
blood clotting disorder—“that’s basically it.” Because the coagulation profile
received was normal, Doctor S. explained, “we couldn’t entertain the possibil-
ity of [the baby] bleeding spontaneously without being shaken.”83
The state’s doctors dismissed the significance of the old bleeding by
ignoring it entirely or, in the alternative, interpreting it as yet another indi-
cation of shaking, albeit by an unknown perpetrator. The first approach
was adopted by Doctor M., the neurologist, who admitted that the older
bleeding in Fiona’s brain was not a factor in his diagnosis. Focusing on the
importance of this issue, the judge directly asked Doctor M., “do you know
if there was a subdural chronic hematoma?” Doctor M. did not respond to
the question, but reiterated his view that “[t]here is enough evidence and
05_9780199913633.indd 61 1/29/2014 4:19:40 PM

clinical ground and radiological ground, the baby was afflicted with severe
brain injury.”84
As a clinician, Doctor M. explained, his “utmost duty is to, based on all
the data, to assume that this is an acute injury.” He stressed that, where a child
in neurological crisis presents with subdural hemorrhage, there is a presump-
tion of abuse. (It was not Doctor M.’s place, as a witness, to reconcile this
presumption and its resulting diagnosis with the presumption of innocence
to which Calderaro was entitled at trial.) As to the radiological findings of old
bleeding, the neurologist explained, “it is fine. I am putting it in the back of
my mind and I’ll consider it. But I am not taking my eyes off the main issue
here, that I have a child who was well 24 hours ago and now is completely
obtunded [functioning at a reduced level of consciousness] and unrespon-
sive. And there is hemorrhage between the skull and the brain and diffuse
edema involving the whole brain. I think this is the whole issue. That’s the way
I would look at it and I cannot go and deliberate and evaluate the interpreta-
tion of the MRI as per the radiologist.”85
The exchange continued:
Q: You would want to know about [a chronic subdural], wouldn’t you?

A: Specifically to this case every information, every bit of information
is important. But specifically to this case I think the most important
thing [is] the findings that indicate that the baby was acutely injured.86
The judge posed one final question on the topic: “since there was an indica-
tion by someone else that there might have been chronic blood, did that affect
your diagnosis or treatment of this patient?” Doctor M. was emphatic: “No,
absolutely not.”87
Rather than discount its significance altogether, other prosecution doctors
interpreted the old blood as proof of prior shaking—and then discounted its
significance. On cross-examination of Doctor S., the pediatric critical care
physician, defense counsel attempted to probe the relevance of the chronic
subdural:
Q: Could you give me any explanation why there was prior blood?
PROSECUTOR: Objection.
THE COURT: No. You were aware that there was chronic blood?
THE WITNESS: Yes.
THE COURT: To what degree was it significant to your diagnosis?
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Trials • 63
THE WITNESS: The significance of this would be that the baby may have been
shaken more than once.
Q: On a prior occasion?
A: On a prior occasion.
Q: How many days prior?
A: I have no idea.88
Without considering that the older bleeding might have contributed to

the more recent episode, or that it might indicate an undetected medical
condition, Doctor S. assumed that Fiona presented a case of serial shaking,
because subdural bleeding was deemed diagnostic of SBS. In the doctor’s
words, “if you take the subdural hematomas as one of the features or the
symptoms or findings, rather, of shaken baby and activate the retinal hemor-
rhages that could be of different ages, although it is very difficult to ascertain
that, I would assume that perhaps this baby was shaken more than once, on
two different occasions.”89
Apart from whether this assumption was warranted (or whether it should
have been introduced against Calderaro, given the absence of a connection
between the hypothesized earlier episodes and the caregiver), Doctor S.’s tes-
timony is perplexing. If past shaking is presumed to have caused the earlier
bleeding, lucid intervals must exist. Yet the possibility of lucid intervals is
denied. This inconsistency in the doctor’s testimony was not explored on
cross-examination. Nor was the tension between contending that the most
recent shaking episode “activated” retinal hemorrhages of different ages, and
claiming that a high degree of force is necessary to bring about the triad.
Doctor Debra E., the child protection center director, shared Doctor S.’s
view of the old bleeding. When asked if the chronic subdural could explain
the acute symptoms, the pediatrician answered “absolutely not.” The basis for
her opinion was that “in order for somebody to be acutely symptomatic like
she presented, there had to have been a violent shaking episode. A chronic
subdural hemorrhage usually is a result of an acute [hemorrhage] that is heal-
ing over time. It usually is not symptomatic, causing any symptoms for the
child, except sometimes, if it’s very, very large, over time it can cause the head
to get bigger.”90
It turns out that the baby’s head was growing at an abnormal rate, but
this fact would become important only after Calderaro was convicted, when
her new lawyer consulted experts who realized its significance.91 Fiona’s neu-
rological symptoms could be explained, according to these experts, by the
05_9780199913633.indd 63 1/29/2014 4:19:40 PM

condition known as BESS (Benign Enlargement of the Subdural Space),

which can lead to complications associated with SBS.92
But at trial, the chronic subdural hemorrhage was given only one read-
ing: if it meant anything at all, it meant that there was a “prior abusive
episode.” Doctor E. insisted that the older bleeding must have occurred
“following a violent shaking episode.” But she also maintained that this ear-
lier shaking was irrelevant to the question of what caused Fiona to collapse,
since again her collapse could only indicate that violent shaking immediately
preceded it. While Doctor E. acknowledged that a “prior abusive episode”
could cause subdural bleeding but no other symptoms, she was never asked to
explain how this fact was consistent with the repeated claim that neurological
decline must immediately follow violent shaking.93
Rather than pursue the question why there was old bleeding, and observe
that there was no evidence that shaking was the cause, the defense attempted to
show through cross-examination of the state’s experts that Fiona was vulnerable
to a re-bleed on little or no impact.94 But without doctors of her own to explain
why this was so, the defendant was at a pronounced disadvantage. The prosecu-
tion witnesses flatly denied that this was a possibility in the case. The following
exchange, on cross-examination of Doctor J., the neuroradiologist, was typical.
Q: Can a fresh episode of subdural bleeding occur spontaneously in infants

that harbor chronic subdural hematomas?
A: Yes.
Q: If these can occur spontaneously without any apparent shaking, would it
be fair to say that it might take little or no significant force to induce such
a secondary hemorrhage?
A: Yes. Where you can have re-bleeding. But it doesn’t explain all the other
findings where you see the diffuse damage to the brain and the retinal
hemorrhages.95
Doctor M. similarly maintained that while re-bleeds can occur, they do

not cause brain injury, retinal hemorrhages, or seizures.96
Doctor Randall A., a Florida pediatrician and advisory board member
of the National Center on Shaken Baby Syndrome, was hired as an expert
by the Queens District Attorney’s office. Doctor A. insisted that he knew
that Fiona suffered acute trauma “because the brain injury is from mechani-
cal brain injury with immediate symptoms, and they would show up right
away.” He explained that, when doctors see the triad, “that’s probably going
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Trials • 65
to make us say shaken baby syndrome. Although we’re always open to some
other quirky circumstances, that’s pretty much—there’s not too much that
looks like that.”97
Doctor A. testified using a PowerPoint show that was selected “from
a larger presentation that actually is sponsored by the National Center on
Shaken Baby Syndrome.” (Doctor A. did not indicate when the presentation
was produced.) When the show was admitted in evidence, the trial judge
instructed: “Now, jurors, you are about to watch an animation, a computer
animation illustrating, consistent with the doctor’s testimony, the effect
of shaken baby syndrome. It is being shown to you for a limited and spe-
cific purpose, and the purpose is to explain shaken baby syndrome for you.”
Without emphasizing that the evidence would explain the state’s theory of
SBS, the court gave its imprimatur to a diagnosis that proved Calderaro’s
guilt.98
The presentation depicted the triad as resulting from shaking in particu-
lar. ( Just months later, the American Academy of Pediatrics would announce
its disavowal of rigid mechanistic claims.99) In a similar vein, Doctor A.’s
testimony concluded with the violent shaking of a doll, an apparently dra-
matic moment in the trial. “The face he made when he shook that doll,” was
recalled in closing argument by the defense attorney, who further suggested
that Doctor A. “came here for one reason, to shock you. And I saw the look
on your faces, you were shocked.”100
The court took pains to stress that the demonstration was not to be con-
sidered as “a re-enactment,” or “evidence the defendant shook the infant in
the manner of the doctor doing it.” But, after standing for the demonstration,
Doctor A.’s testimony proceeded as follows:
A: So the nature of the forces that we would think of in shaken baby syn-
drome is similar to this (indicating).
Q: Doctor, please, have a seat. In your expert opinion, and to a reasonable
degree of medical certainty could Fiona[’s] injuries have been caused by
anything but shaken baby syndrome?
A: No.101
On cross-examination, apart from suggesting his bias as a paid prosecu-

tion expert, the defense had no questions for Doctor A.
In closing argument, the defense attorney asked the jurors to transcend
their emotional reactions to the doll shaking and to the tragic facts of the case.
05_9780199913633.indd 65 1/29/2014 4:19:40 PM

He pointed to the fears engendered by Fiona’s collapse. “Do you know what
is really scary people?,” he asked. “What is scary is that we all know this could
have happened to our child. And somehow we want to make the world safe
and we want to sort of say, no, no, this could not happen. There has to be a
reason. . . . You want to go home at night knowing if we take care of our chil-
dren this is not going to happen to them.” Jurors had heard the heartbreaking
testimony of Fiona’s mother: “[M]y baby was born perfectly fine and all this
happened because—because I wasn’t there. I should have been the one to take
care of her.”102
On summation, the prosecutor told the jury that it could “rely on the cred-
ible medical evidence that I have presented to you in order to confidently con-
clude beyond a reasonable doubt that the defendant violently and repeatedly
shook Fiona.” The doctor’s diagnosis was “unequivocal” that Fiona suffered
from SBS. As to the old bleeding, “either Fiona was shaken before January 11
or she wasn’t. But either way, the credible evidence proves beyond a reason-
able doubt that she was definitely shaken on January 11 at 5:00 p.m.” The
prosecutor speculated that crying was the trigger for Calderaro’s violent epi-
sode; “the noise of her life and of her day just wouldn’t stop and she erupted.”
In closing, the prosecutor asked the jury to give Fiona justice.103
Faced with uncontested medical evidence of guilt, the jury deliberated.
It considered Calderaro’s testimony regarding the day in question—how she
heard a choking noise and ran to the living room, where Fiona’s lips were turn-
ing purple. She tried to resuscitate the baby, first with mouth-to-mouth, then
with gentle shaking. But, she protested, “I didn’t shook the way the doctor
shook that baby doll. That was horrible. I didn’t do that to her.”104 She called
out to her husband, who was in the apartment along with her son, but quickly
realized that she needed emergency responders and dialed 911. The recording
of the call was in evidence, and the defense suggested that it too supported
Calderaro’s case for innocence: “the tape speaks for itself.”105
The jury believed the doctors and found Calderaro guilty. She was sen-
tenced to eight years in prison.
05_9780199913633.indd 66 1/29/2014 4:19:41 PM

5 MISSED DIAGNOSIS
In late 2005, Melonie Ware, the mother of two young children,

was convicted of murder and sentenced to life in prison. Based on
the triad, the state alleged that the Georgia caregiver had shaken to
death an eight-month-old boy. Six prosecution doctors dismissed
the possibility that that baby, Jaden, had suddenly and inexplicably
collapsed during a feeding, as Ware described. The experts were cer-
tain that the medical evidence proved her guilt. Even the defense
conceded the correctness of the SBS diagnosis, arguing that Jaden
had been shaken before he was left in Ware’s care. But the jury was
convinced by the state’s doctors’ professed ability to precisely time
the baby’s injury: it must have been inflicted during the period
when he was with his caregiver.1 The trial was standard fare for
these prosecutions.
Shortly after Ware was sentenced, she hired a different lawyer,
who promptly moved for a new trial based on the ineffective assis-
tance of trial counsel. After first granting Ware an evidentiary hear-
ing, the same judge who had just sentenced her to a life term made
the remarkable decision to set aside the conviction.2 Ware had been
so greatly disadvantaged by her lawyer’s subpar performance that,
but for it, according to the trial judge, “a reasonable possibility,
even a strong possibility, exist[ed]” that she would have been found
not guilty.3 This assessment proved to be correct. At her subsequent
retrial, Ware was acquitted. She had served one year in jail on a life
sentence imposed wrongly. Though financially wrecked, the family
was reunited.4
What saved Ware was the discovery that Jaden had apparently
died of complications from sickle cell disease. Seven experts, includ-
ing a pathologist, a pediatric neurologist, an ophthalmologist, a
pediatrician, and a hematologist/oncologist (blood cancer special-
ist) testified to this effect on behalf of the defense. The evidence
that sickle cell disease caused Jaden’s death was overwhelming.
Blood test results were consistent with disseminated intravascular
coagulation, which occurs when blood cells meet blood clots that
06_9780199913633.indd 67 1/29/2014 1:08:11 PM

rip apart the cells. Jaden’s blood culture revealed signs of bacterial infection
consistent with sickle cell disease. And autopsy slides revealed the presence of
sickle cells in the eyes and parts of the brain.5
Early in his life, Jaden was actually diagnosed with sickle cell disease; the
fact that he suffered from this genetic blood disorder was not in dispute.6
Even so, Jaden’s condition was barely mentioned at Ware’s first trial. Rather
than pursue a “medical defense,” Ware’s lawyer decided not to question the
SBS diagnosis—he would keep the case “so simple and straightforward,” as he
later put it, that the jury would be able to follow.7 By pointing the finger at an
unknown abuser, the lawyer hoped to conjure the conventional “whodunit”
archetype of criminal investigations. But, as Ware’s conviction after her first
trial suggests, this model is inapt when no crime whatsoever has taken place.
As a substitute for advancing a causal account of a natural disease process—a
medical defense, as it were—the “other abuser” strategy is counterproductive.
The decision to forego an attack on the doctors’ SBS diagnosis might well
have stemmed from the trial lawyer’s limited understanding of the relevant
scientific research. “I don’t think anybody would feel comfortable with the
science in this field unless they were a medical doctor or had one sitting next
to them,” he admitted.8 An SBS defendant whose lawyer feels daunted by the
science surrounding SBS is at a pronounced disadvantage. This is a problem
that reaches far beyond Melonie Ware’s case. Although a defense attorney’s
failure to engage the science is not necessarily viewed as ineffective for pur-
poses of constitutional analysis, it still falls short of adequate representation.
Yet, for many lawyers, the task of mastering a body of complicated scientific
research is overwhelming. Even those who have successfully defended SBS
charges remark on the toll it exacts. Articulating a widely shared sentiment,
Ware’s post-conviction counsel noted, “defending an individual with charges
related to Shaken Baby Syndrome is one of the most difficult cases that a
criminal defense attorney will face in his or her career.”9
At Ware’s first trial, her lawyer’s failure was sufficiently egregious to require
a remedy.10 Not presenting the “critical, material, available medical evidence”
amounted to what the post-conviction counsel aptly referred to as a “break-
down in the adversary system.”11 Across this system, equally egregious failures
may never come to the attention of a judge, and failures less egregious may not
entitle a defendant to relief. But for Ware, a court was prompted to undo the
injustice. The case epitomizes the importance of decent defense representa-
tion and what that entails in SBS cases.
What happened to Melonie Ware also raises important questions about the
functioning of prosecutors and prosecution experts. Consider that evidence
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Missed Diagnosis • 69
of Jaden’s sickle cell disease was not newly “discovered”—rather, it was known
at the time of the first trial. Prosecutors were well aware that the baby suffered
from this condition; they were even on notice that he had recently been hos-
pitalized for engorgement of the spleen as a result of his disease.12 The state’s
response to this evidence was to deny its relevance altogether.
At Ware’s first trial, Doctor Beatrice F., a pediatric hematologist, testified
that Jaden’s death could not have resulted from his sickle cell disease. Doctor
F. summarily explained that she was responsible for transfusing Jaden’s blood
in a prior hospitalization, and that this transfusion eliminated the possibil-
ity that complications from sickle cell were the cause of the baby’s death.13
Defense counsel neglected to cross-examine Doctor F. regarding a potential
conflict of interest arising from the prior treatment of Jaden and how this
might bias her testimony.
The problems with Doctor F.’s testimony became apparent at Ware’s
second trial. Doctor Michael D. is a pediatric hematologist/oncologist and
director of the Sickle Cell Treatment and Educational Center at a leading
medical school and a metropolitan children’s hospital specializing in the
treatment of sickle cell disease. Never having appeared as an expert witness
in a criminal case, he testified on Ware’s behalf at her retrial. According to
Doctor D., there was no evidence that transfusion treatment is effective to
prevent engorgement of the spleen, and there are significant risks associated
with the particular transfusions that Jaden received, including just the kind of
brain injury presented in this case.14
Doctor D. suggested that decisions made in the course of caring for Jaden
prior to his collapse might have contributed to his death. The child had appar-
ently received too much blood, causing a thickening reaction that can lead to
clotting in the brain. There was powerful evidence that this “hyperviscosity
syndrome” was a factor in Jaden’s collapse: three transfusions had occurred
within a four-week period; on the final transfusion, the amount of blood
provided doubled; Jaden’s CT scans were consistent with bleeding over the
course of weeks; and, finally, the autopsy report indicated the presence of
thrombosis (clots). In Doctor D.’s estimation, complications from sickle cell
disease, or from the treatment of the disease, or from a combination of the
two, led to the baby’s death.15
This opinion cast new light on the testimony of Doctor Beatrice F., again,
one of the doctors responsible for Jaden’s prior transfusion treatment. In ret-
rospect, it is clear that defense counsel at Ware’s first trial should have pur-
sued the argument that sickle cell was causal in Jaden’s death. Even at the
time, we might have expected the prosecutor to realize that Doctor F. was
06_9780199913633.indd 69 1/29/2014 1:08:12 PM

potentially conflicted by her role in Jaden’s earlier care. But a belief in SBS can
stifle critical analysis. In Ware’s case, the state was utterly convinced of Ware’s
guilt and remained so: even after listening to the (unrebutted) testimony of
Ware’s experts at the hearing on her new trial motion; even after receiving
the judge’s decision to vacate the conviction based on the “strong probabil-
ity” that—with the benefit of a fuller evidentiary record—Ware would be
acquitted. As evidenced by its decision to retry her, the state still could not
see reasonable doubt.
Ware’s case places in stark relief the limitations of “differential diagnosis.”
Less than a week before the alleged shaking incident, Jaden had received a
massive blood transfusion in relation to his sickle cell disease. Yet his condi-
tion was ruled out as a factor; the presence of a simple medical explanation
for Jaden’s death did not in any way diminish the confidence of the experts.
Their certainty is troubling. It led them to ignore the presence of sickle cells
on autopsy slides and to rationalize a problematic blood workup. It kept them
from asking difficult questions about Jaden’s transfusions and from a truly
searching inquiry into why treatment for his sickle cell disease failed.
The state’s experts were unanimous that the triad proved Ware’s guilt.
Doctors can, of course, be convinced and be wrong. But this phenomenon
is especially jarring when the presumption of abuse generated by the triad
obscures an obvious alternative explanation for neurological decline.
Diagnostic Error
Incorrect medical beliefs are sticky, meaning they endure.16 Even after a
research error is uncovered, its influence can linger.17 According to Doctor
John Ioannidis, a leading expert on the subject, the appropriate response is to
invert our collective expectations of science: we ought to stop perceiving the
claims of medicine as akin to truth. Physicians in particular should acknowl-
edge the limits of the research endeavor.18
But, when it comes to the triad, no such inversion has occurred; expres-
sions of certainty as to its diagnostic significance persist. One consequence is
that non-abusive origins of the triad have mostly been a secondary research
concern as compared to efforts to establish a connection between the triad
and abuse. Even so, understandings of abuse “mimics” have advanced. It
might then be supposed that better individual diagnosis would result. Instead,
clinical practice has lagged behind research on causes of the triad other than
shaking.
06_9780199913633.indd 70 1/29/2014 1:08:12 PM

The association between quality scientific research and accurate diagnosis

is a basic postulate of evidence-based medicine.19 In theory, there is good rea-
son to believe that this relationship exists. But the reality of clinical diagnosis
is more convoluted. Doctors generally struggle to translate the best available
scientific knowledge into practice, often reaching conclusions akin to “edu-
cated guesses.”20
In discussing the distinctive epistemology of modern medicine, legal
scholar Lars Noah explains that clinicians are disinclined to rely upon the lat-
est scientific research—particularly when it conflicts with previously accepted
lore.21 This is true even when the latest research improves on earlier studies,
since physicians treating patients tend not to engage with questions of meth-
odology or research quality.22 As Noah observes, “we most certainly do not
enjoy evidence-based medical practice.”23
This description of clinical decision making bears directly on SBS. Noah’s
account hints at why, despite having been universally disavowed by research-
ers, the pathognomonic triad persists in clinical practice to this day. It suggests
how the medical profession might have uncritically perpetuated—through
widespread diagnosis—an unproven hypothesis declaring that the triad,
without any other signs, could result only from forceful shaking.
But if the role of science in medical diagnosis is more limited than we
might like to believe, what does affect the “flesh and blood” decision mak-
ing of physicians?24 In the past decade, researchers have begun to apply the
insights of behavioral science to better understand diagnostic error.25 We now
know that, like everyone else, physicians take shortcuts when processing com-
plex information.26 Unfortunately, mistakes in diagnosis often result. In the
SBS context, these misdiagnoses help to sustain the triad’s lasting sway.
Researchers have made great progress in understanding the impact of “cog-

nitive dispositions to respond,” which may be defined as “cognitive errors,
especially those associated with failures in perception, failed heuristics, and
biases.”27 Default to cognitive dispositions to respond is especially likely
under certain conditions, such as those encountered by doctors in urgent
medical situations.28 As one literature review noted, “cognitive diagnostic
failure is inevitable when the exigencies of the clinical workplace do not
allow . . . Olympian cerebral approaches.”29
What we have learned about cognitive errors in medicine allows for
greater insight into the origins of misdiagnoses. A 2005 study of one hundred
diagnostic errors provides a helpful taxonomy of causal factors.30 The study’s
findings are directly relevant to the diagnosis of SBS. First, faulty processing
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of the available information is the most common source of cognitive error,

followed by faulty data gathering.31 Analyzing the relationships between vari-
ous error sources, researchers were able to identify “clusters of cognitive fac-
tors that tended to co-occur.”32 As one illustration, “a mistake relatively early
on (e.g., an inadequate history or physical examination) is likely to lead to
subsequent mistakes (e.g., in interpreting test results, considering appropriate
candidate diagnoses, or calling in appropriate specialists).” Researchers con-
cluded that “diagnostic error is typically multifactorial in origin.”33
Even so, one error stood out as a primary contributor to misdiagno-
sis: “[t]he single most common phenomenon was premature closure: the ten-
dency to stop considering other possibilities after reaching a diagnosis.”34 This
cognitive process has also been called “satisficing,” and it is well documented.35
Regardless of the term used, this tendency toward too quickly foreclosing
alternatives sits uneasily with an idealized notion of differential diagnosis. In
SBS cases, the problem is especially salient, since early diagnosis is the rule.
As we will see, premature closure is just one of many cognitive strategies
relevant to SBS. The typical progression of a triad-only diagnosis follows a set
pattern. A baby presents with acute neurological symptoms and no external
signs of abuse. Emergency room doctors promptly discover a subdural hema-
toma, which triggers a deeply held belief that shaking was causal. An ophthal-
mologist is called to validate the diagnosis; the ophthalmologist finds retinal
bleeding. A child abuse expert intervenes early on and further confirms what
the others already strongly suspected: the caregiver with the child at the time
of collapse has not provided a satisfactory explanation for the bleeding.
Doctors now believe they know that this person shook the baby. Child
protective services and the police are called. Perhaps doctors will make efforts
to “rule out” the alternatives perceived as possible. But the presumed diagno-
sis from the outset is shaking and this intuition is hardly ever disturbed. The
trajectory of the diagnostic process seems almost to guarantee that intuition
will harden into conviction. In short, when a baby presents with one or more
triad symptoms, physicians—emergency room doctors, pediatricians, radi-
ologists, ophthalmologists, and, on autopsy, forensic pathologists—tend to
default to SBS.
To understand why, it is helpful to further contemplate the cognitive
shortcuts that readily present themselves in this diagnostic setting and to
observe how these shortcuts may lead to misdiagnosis. Psychologists have
identified over thirty major cognitive dispositions to respond that contribute
to error (some are overlapping).36 The descriptions of these dispositions are
striking for their parallels to the conditions that give rise to an SBS diagnosis.
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Consider first, errors associated with the initial diagnostic hypothesis. When
a baby (who will later be diagnosed with SBS) presents in the emergency
room with acute neurological symptoms, the first notable feature discovered
is normally subdural bleeding. This raises the prospect of “anchoring,” which
psychologists describe as a “tendency to perpetually lock onto salient features
in the patient’s initial presentation too early in the diagnostic process.”37 For
the doctor attending the child, the discovery of subdural bleeding prompts an
immediate hypothesis: abuse.
Because the triad of symptoms (including subdural bleeding) was once
thought to be exclusively diagnostic of shaking, it is not surprising that
doctors—most of whom have past experience, some extensive, with these
cases—would reflexively associate subdurals and abuse. This dynamic impli-
cates a bias known as “availability,” which is “the disposition to judge things
as being more likely, or frequently occurring, if they readily come to mind.”38
Whether accurate or not, the past diagnosis of subdural bleeding as SBS may
“inflate the likelihood”39 that subdural bleeding will again be diagnosed as SBS.
In questioning the adults who were caring for the child, the focus remains
on the time period closely preceding the baby’s collapse, since the likelihood
of a lucid interval is considered slim to none. This tendency implicates the
“unpacking principle,” which warns that a doctor’s “failure to elicit all relevant
information (unpacking) in establishing a differential diagnosis may result in
significant possibilities being missed.”40 The suspect is fast identified, consis-
tent with a diagnostic strategy of “going for the obvious” while giving other
possibilities short shrift.41
Since SBS is now a diagnosis of exclusion, doctors are supposed to rule out
alternatives. Thus begins the process of “differential diagnosis,” which tends to
implicate a number of common sources of diagnostic error. The explanation
for the triad with which medical professionals are most accustomed is SBS.
Other possibilities are less defined; they may be complicated, uncertain, and
far less attractive than resorting to shaking. This scenario raises the problem
of “multiple alternative bias,” where doctors “simplify” the diagnostic process
“by reverting to a smaller subset” that is “familiar.”42 The result is “inadequate
consideration” of other alternatives.43
In the typical scenario, a child abuse specialist, if not yet involved, is con-
sulted and becomes responsible for subsequent management of the case. An
ophthalmologist is asked to look for retinal hemorrhages. A radiologist is
sought for a more expert opinion on a CT scan. Blood is often sent to the lab
to test for disease or disorder, though bleeding specialists are not ordinarily
called upon for input into what is causing blood on the brain. All of these
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decisions suggest the possibility of “triage cuing,” which “results in patients

being sent in particular directions, [cuing] their subsequent management.”44
The choice of which specialist to consult (or not) may well dictate the ulti-
mate diagnosis—hence the adage that “geography is destiny.”45
Doctors commonly find no alternative to shaking. In many cases, the
dynamics in place suggest the operation of a powerful confirmation bias,
which psychologists explain as a “tendency to look for confirming evidence
to support a diagnosis rather than look for disconfirming evidence to refute
it, despite the latter often being more persuasive and definitive.”46 Put differ-
ently, “people selectively focus upon evidence that supports their beliefs or
what they want to believe to be true, while ignoring evidence that serves to
disconfirm those ideas.”47
In the clinical context, confirmation bias is a main source of diagnostic
error.48 The doctors’ maxim that expresses this phenomenon is “you see what
you look for, and you look for what you know.”49 When multiple physicians
are involved in a case, as happens with SBS, it is common for each doctor
to “verbally confirm a diagnosis or reinforce the initial diagnostic impres-
sion,” regardless of its accuracy.50 (This same potential for bias inheres in the
autopsy, since pathologists are told what the baby’s physicians concluded.)
The drive to confirm the original intuition may constrain the workings of the
differential diagnosis: the alternatives it includes; the specialists consulted;
the tests required; the significance attached to test results; the willingness to
withhold judgment for a time; and whether uncertainty is deemed tolerable,
or even acknowledged. In a “conspiracy of concurrence” known as group-
think, doctors may avoid voicing dissent.51
Too soon, the diagnostic process is cut short. This “premature clo-
sure . . . account[s] for a high proportion of missed diagnoses.”52 Doctors
are quickly certain: this is SBS. With few exceptions, once the investigation
has concluded, doctors have little impetus to revisit the causal question.53
In a phenomenon known as “feedback sanction,” diagnostic errors are com-
pounded when they go undetected, or when the passage of time blunts the
impact of their discovery.54 The problem of “sunk costs” predicts that clini-
cians will cling to a diagnosis to preserve investments in “time and energy and,
for some, ego.”55
From start to finish, the prototypical process by which a triad of symp-
toms comes to be labeled SBS is vulnerable to biasing mechanisms. Of course,
the recognition of doctor error as a factor contributing to the stream of SBS
diagnoses can coexist with recognition of abuse as one potential cause of
head trauma. However, the effects of cognitive dispositions to respond raises
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real questions about the rigor of differential diagnosis in this realm, and thus
about the reliability of the conclusion so often reached.
A Legal Perspective on Differential Diagnosis

In SBS cases, judges have been willing simply to accept doctors’ professed reli-
ance on differential diagnosis. Expert testimony that purports to rest on a
proven methodology is thus admitted without analysis. This deferential treat-
ment is problematic, as is a complete judicial failure to probe whether differ-
ential diagnosis is an apt justification for the claim of external causation upon
which SBS rests. In fact, it is not: reference to differential diagnosis not only
obscures, but mischaracterizes, the methodological questions central to the
conclusion that a baby was shaken.56
Though the faulty description of SBS as a differential diagnosis has been
uncritically adopted by criminal courts, this reflexive judicial stance is not inev-
itable. We see the alternative in the civil realm, where a far more sophisticated
framework for evaluating experts’ methodological claims has developed. Most
important, courts have been able to distinguish between the methodologies
of “differential diagnosis” and “differential etiology.”57 The difference is more
than semantic, as it points to a key substantive difference between the two pro-
cesses: the former suggests a measure of validity, while the latter does not.
For one elaboration of this concept, consider a 2007 tort action called
Bowers v. Norfolk Southern Corporation, which involved injuries sustained
by a train operator who then sued the train company.58 The plaintiff offered
the testimony of Doctor Arthur Wardell, an orthopedist who opined, using a
method of “differential diagnosis,” that the injuries at issue were caused by the
vibrations of the locomotive. But the federal district court did not just adopt
the doctor’s characterization of this methodology. Instead, upon examina-
tion, the court observed, “Dr. Wardell did not perform a ‘differential diagno-
sis’ on Plaintiff.”59
The problem was not (or not primarily) related to technical inadequa-
cies in the diagnostic approach. Rather, a proper understanding of differ-
ential diagnosis placed the doctor’s mode of reasoning outside its ambit. To
reach this conclusion, the court relied on two medical dictionary definitions.
According to the first, differential diagnosis is “the determination of which
one of two or more diseases or conditions a patient is suffering from, by sys-
temically comparing and contrasting their clinical findings.”60 Per the second
definition, differential diagnosis is “the determination of which of two or
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more diseases with similar symptoms is the one from which the patient is
suffering, by a systematic comparison and contrast of the clinical findings.”61
Both meanings demarcate the bounds of differential diagnosis: as a rule, it
does not provide an adequate basis for establishing external causation. As the
Bowers court emphasized, differential diagnosis “focus[es] on diagnosing the
disease, not on determining the etiology or cause of the disease.”62
According to the court—which cited for support the Federal Judicial
Center’s Reference Manual on Scientific Evidence—differential etiol-
ogy, by contrast, involves “the investigation and reasoning that leads to the
determination of external causation . . . by a process of elimination.”63 This
process demands the tools of science and justifies its conclusions by refer-
ence to an adequate evidentiary basis. This level of rigor was missing from
Doctor Wardell’s methodology, which resulted in identification of the loco-
motive seat’s vibrations as the cause of the plaintiff ’s neck and back injuries.
Differential diagnosis could perhaps establish degenerative disk disease as the
likely cause of the plaintiff ’s pain, but that would be the extent of it.
The district court refused to rubber stamp the methodological label of
“differential diagnosis,” excluding Doctor Wardell’s opinion from evidence.64
The U.S. Court of Appeals for the Eleventh Circuit affirmed, noting that the
lower court’s analysis was “both thorough and careful.”65 Confronted with
differential etiology in the guise of differential diagnosis, other courts in civil
cases have reached similar results.66
Because it purports to locate an external source of a patient’s medical
condition, differential etiology implicates validation concerns that are not
typically raised by differential diagnosis. As the Bowers court emphasized,
“the differential diagnosis method has an inherent reliability; the differential
etiology method does not.”67 In general, doctors have particular motivations
to diagnose accurately. If a doctor misdiagnoses a patient’s condition, serious
health consequences, including death, may follow. Misdiagnoses can also lead
to medical malpractice suits.68 But mistakes regarding external causation are
unlikely to result in either of these outcomes. (The Bowers court offered these
explanations for the reliability differential between the two methodologies.)
There are other reasons to treat skeptically conclusions derived from dif-
ferential etiology, particularly in the medical context.69 Rejecting an effort to
characterize differential etiology as differential diagnosis, one court pointed
to physician expertise as the key factor.70 It was wrong to “conflate[] a doctor’s
expertise in diagnosis with a doctor’s expertise in etiology,” noted the court,
adding, “[m]ost treating physicians have more training in and experience
with diagnosis than etiology.”71
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Even when physicians do think about etiology in the clinical setting,

they do so in ways that tend to undermine arguments for admissibility.72
Causation in clinical practice reflects what one court described as a “pre-
cautionary principle.” By way of explanation, the court offered that, “[i]f a
particular factor might cause a disease, and the factor is readily avoidable,
why not advise the patient to avoid it? Such advice—telling a welder, say, to
use a respirator—can do little harm, and might do a lot of good.”73 This pre-
cautionary principle, however appropriate for the clinician, far from assures
the reliability required of expert testimony. The “low threshold for making
a decision serves well in the clinic but not in the courtroom,” warned the
court, “where decision requires not just an educated hunch but at least a
preponderance of the evidence.”74 (In civil cases, the burden of proof is much
lower than in the criminal context; and still expert testimony on causation
is often excluded.)
For good reasons, then, when a doctor’s methodology is accurately clas-
sified as differential etiology, many courts in civil cases have been extra cau-
tious about admitting the expert opinion.75 This perspective on causation
bears directly on SBS, which is a diagnosis of external causation: shaking (or
abuse of some sort) caused these symptoms.76 Whatever its ostensible label, a
diagnosis of causation raises the very concerns underlying judicial reluctance
to admit opinions based on differential etiology.77 In civil cases, the presump-
tion of reliability that attends true differential diagnosis (when performed
adequately) is often suspended when external causation is at issue. Thus far,
this same judicial attitude has not applied when the triad leads doctors to con-
clude that a baby was shaken—in effect, that the baby’s condition was caused
by a specific human act. But insisting that SBS entails “differential diagnosis”
does not make it reliable.
The etiological foundations of SBS warrant greater scrutiny of expert claims,

regardless of whether they are styled as differential diagnosis. In civil cases—
even those that stay within the framework of “differential diagnosis”—this
cautious orientation is reflected by rigorous judicial analysis of opinions on
causation.78 A developed, albeit inconsistent, body of law limits the admissi-
bility of testimony when it purports to identify a source of injury.79 In contrast,
criminal courts afford almost total deference to these same opinions when
advanced by prosecution experts.80 Given that testimony regarding the triad
is functionally the same in kind as the expert opinions routinely excluded in
civil cases (where, again, the burden of proof is lower), the automatic admis-
sion of this testimony in SBS cases is striking.81
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There are multiple barriers to the admission of causation testimony in civil

cases. Here, courts demand proof of both general causation and specific cau-
sation82—what, in the parlance of differential diagnosis, might be called “rule
in” and “rule out.” By distinguishing between general causation and specific
causation and insisting that each be demonstrated, courts have developed
a rather sophisticated framework for assessing the adequacy of a proffered
expert opinion.
Consider one court’s overview:
The process of differential diagnosis is undoubtedly important to the

question of “specific causation.” If other possible causes of an injury
cannot be ruled out, or at least the possibility of their contribution to
causation minimized, then the “more likely than not” threshold for
proving causation may not have been met. But, it is also important to
recognize that a fundamental assumption underlying this method is
that the final, suspected “cause” remaining after this process of elimina-
tion must actually be capable of causing the injury. That is, the expert
must “rule in” the suspected cause as well as “rule out” other possible
causes. And, of course, expert opinion on this issue of “general causa-
tion” must be derived from scientifically valid methodology.83
On the need to first “rule in” in order to satisfy admissibility standards,

expert testimony must establish that the cause in question could contribute
to the result in question. To do this, judges have recognized the importance
of identifying the specific casual mechanism at issue. As one court observed,
“the underlying predicates of any cause-and-effect medical testimony are that
medical science understands the physiological process by which a particular
disease or syndrome develops.”84 In this regard, both clinical experience85 and
case reports86 may be insufficient to demonstrate the causal mechanism with
the requisite precision.87 Where general causation has not been adequately
proven, courts have excluded expert testimony that purports to rest on a pro-
cess of differential diagnosis.88
In SBS cases, lurking questions involving general causation have gone
unaddressed by courts. Even discounting the biomechanical research that
challenges the validity of a triad-only diagnosis,89 prosecution experts admit-
tedly don’t know how shaking causes the triad (physiologically), or whether
impact or another “abusive” mechanism might instead be at issue. This level
of knowledge falls short of what courts have generally required for admissibil-
ity in the civil realm.
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In similar fashion, experts’ inability to scientifically determine the force

levels involved in SBS (or AHT) is somewhat analogous to problems of dos-
age arising in toxic tort actions.90 Here, a high degree of precision is required
before expert opinion on causation can be admitted. As one court remarked,
“a fundamental tenet of toxicology is that the ‘dose makes the poison’ and that
all chemical agents, including water, are harmful if consumed in large quan-
tities, while even the most toxic substances are harmless in minute quanti-
ties. . . . Therefore, in determining whether plaintiffs’ exposure to PCBs could
have caused any illness that they have, it is necessary to establish the dose/
response relationship between PCBs and those particular illnesses.”91
Scientific understandings of the causal mechanism supposedly responsible
for the triad have largely unraveled in recent years—hence the move from
shaking-only to AHT. The new unknowns are reflected in the testimony of
prosecution experts who posit an array of options to explain the triad: the
baby was thrown on a bed, or banged on the floor, or shaken, or perhaps some
combination. Testimony regarding the forces required to cause the triad is
likewise unmoored from science. “A reasonable person would know that this
kind of shaking could cause injury,” which is a common refrain, is not a sci-
entific standard. In civil litigation, it is unlikely that a court would allow this
kind of expert testimony on causation. In SBS cases, courts have yet to fasten
on deficiencies in evidence of general causation.
When juxtaposed with admissibility requirements in tort actions, proof of
specific causation in SBS prosecutions is also weak. Like “ruling in,” the “rul-
ing out” aspect of expert testimony is subjected to a rather stringent analysis
in the civil context, where large amounts of money are often at stake.92 There
are various facets to this more exacting review in civil actions.
First, courts are unwilling to defer to assertions that an expert eliminated
reasonable possibilities other than the hypothesized cause. Whether the pro-
cess of foreclosing alternatives was adequate is for a judge to decide, not a
doctor.93 According to one court, “[a]n expert who supplies nothing but a
bottom line supplies nothing of value to the judicial process.”94 According to
another court, “in evaluating the reliability of an opinion based on a differen-
tial diagnosis, courts look at the substance of the expert’s analysis, rather than
just the label.”95 Testimony is excluded if the quality of the diagnostic process
is unacceptable.96
Courts are even willing to question whether the method supposedly at
issue was relied upon at all.97 As one court noted, “simply claiming that an
expert used the ‘differential diagnosis’ method is not some incantation that
opens the Daubert gate to allow an expert’s opinions to be admitted at trial.
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Indeed, it can easily amount to nothing more than medico-legal sophistry used
in an attempt to avoid the Court’s reliability analysis.”98 (Daubert v. Merrell
Dow Pharmaceuticals is the U.S. Supreme Court case establishing the com-
monly accepted standard governing the admissibility of expert testimony.)
Before admitting an opinion based on a process of elimination, courts
require a high level of methodological precision. An expert must “systemi-
cally and scientifically rul[e] out specific causes until a final, suspected cause
remains.”99 Where an expert “does not explain how or why he ruled out”
alternatives, his opinion may be excluded.100 An “analysis” is needed to satisfy
the reliability standard.101 Courts will not merely accept an expert’s summary
conclusion—even one based on professional judgment102—that all causes but
the cause left standing were ruled out.
In many cases, it turns out that experts’ causal claims are based (explic-
itly or implicitly) on the chronology of events, often referred to as temporal
order.103 Judges in civil cases have been wary of this reasoning. These reserva-
tions are illustrated by a product liability action against the manufacturer of
herbal weight loss supplements, Metabolife, for causing serious injuries to its
users.104 In its discussion of reliability, the court was careful to identify what is
widely known as the post hoc ergo propter hoc fallacy:
[P]roving a temporal relationship between taking Metabolife and the

onset of symptoms does not establish a causal relationship. In other
words, simply because a person takes drugs and then suffers an injury
does not show causation. Drawing such a conclusion from temporal
relationships leads to the blunder of the post hoc ergo propter hoc fallacy.
The post hoc ergo propter hoc fallacy assumes causality from tempo-
ral sequence. It literally means, “after this, because of this.” It is called
a fallacy because it makes an assumption based on the false inference
that a temporal relationship proves a causal relationship.105
Courts tend to guard against expert opinion that suffers from the post hoc
ergo propter hoc fallacy, particularly when medical science cannot explain “the
physiological process by which a particular disease or syndrome develops.”106
This is true even when the doctor engaged in a delineated protocol for rul-
ing out possible causes of an injury. For instance, in an action alleging that a
slip-and-fall injury led to hormonal damage and ultimately fibromyalgia, the
U.S. Court of Appeals for the Fifth Circuit rejected the expert’s methodol-
ogy as unsound and held it was properly subject to exclusion. The doctor,
Mary Reyna, who was certified in pain medicine, followed a “protocol” for
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diagnosing fibromyalgia that included taking a medical history, ruling out

prior or subsequent causes of the condition, and performing or reviewing
physical tests, which were all negative. Doctor Reyna then “deduced” that
the plaintiff ’s fall was the only possible remaining cause of her illness.107
The court was unimpressed. “This is not an exercise in scientific logic,” it
observed, “but in the fallacy of post-hoc ergo propter-hoc reasoning, which is
as unacceptable in science as in law. By the same ‘logic,’ Doctor Reyna could
have concluded that if [the plaintiff ] had gone on a trip to Disney World and
been jostled in a ride, that event could have contributed to the onset of fibro-
myalgia.”108 Absent a “specific train of medical evidence,” the court refused to
accept the reliability of the diagnosis, despite the doctor having “ruled out” a
number of possibilities.
In SBS prosecutions, this “specific train of medical evidence” is also
missing—noticeably so, now that the medical establishment has moved away
from shaking as the exclusive (or even an identifiable) causal mechanism.109
Notwithstanding this evidentiary deficit, prosecution experts maintain that
the triad could result only from abuse inflicted immediately before the baby’s
collapse. With respect to alternative causes that were ruled out, rarely are doc-
tors called upon to describe their methodological choices, much less explain
them to an inquiring judge. The expert testimony is admitted without regard
to the universe of possibilities considered, how each was eliminated, what
might still remain, and whether the chosen cause—be it shaking, or impact
or, simply, abuse—rests adequately on a scientific foundation. This lax judi-
cial oversight of expert claims regarding the triad is even more notable when
viewed in wider legal context.
Proponents of the diagnosis often remark (rightly of course) that sci-
entists are unable to test their hypotheses in SBS cases by shaking babies.
But this cannot explain the disparity we see in the evidentiary treatment of
causation testimony. For the civil realm, too, presents “situations of irreduc-
ible causal uncertainty.”110 Judges have nevertheless been unreceptive to the
notion that these situations call for less rigorous evidentiary standards.111 It
is true, as one court has suggested, that speculative hypotheses (which often
result from “irreducible causal uncertainty”) serve a function in the medical
realm, where “if the costs of action are low, doctors may want to act . . . with-
out further support.”112 Even so, courts in civil cases have emphasized that
inadequately supported opinions should be excluded from a trial.113 As Judge
Richard Posner, who is among the most influential jurists, once pronounced,
“the courtroom is not the place for scientific guesswork, even of the inspired
sort.”114
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Sustained examination of causation evidence, the rule in civil cases, has

not penetrated criminal court, where judges are faced seemingly unaware
with comparable admissibility decisions. The diagnosis of SBS rests entirely
on claims of causation, as do prosecutions based on the triad. The state’s
experts continue to insist that the baby’s neurological symptoms must have
resulted from some type of abuse. When these opinions are given a pass, the
convictions that result are not secure.
Anatomy of a Missed Diagnosis

In a given SBS case, if the triad resulted from a factor other than abuse, then
there has been no crime, and the defendant is necessarily innocent. Even with
a diligent search, it will not always be possible to identify the cause of neuro-
logical impairment. A more practical problem is that, once a baby presents
with a triad, medical investigations tend to fall short. In rare instances, an
alternative cause becomes obvious, but usually too late. Expert certainty that
attends the triad tends to stand in for thorough consideration of causes other
than shaking.
How mistakes are made, and how they are unearthed, implicates both
the likelihood of error in SBS diagnosis and the unlikelihood of discovery.
We do not know how often preexisting conditions in a baby are overlooked,
as occurred when Melonie Ware, the Georgia caregiver, was found guilty of
murder. But a look at cases where missed diagnoses ultimately were identified
shows that we cannot rely on our adversary system of justice to forestall the
conviction of innocents.
Julie Baumer
In 2005, Julie Baumer was found guilty of violently shaking her six-week-old
nephew, Ben. Baumer, who worked as a mortgage loan officer in a southeast
Michigan town, had been caring for Ben since his birth. (Ben’s mother strug-
gled with drug addiction, and his biological father was not in the picture.)
Upon her conviction for felony child abuse, Baumer was sentenced to ten to
fifteen years in prison.115
Two years later, her appeal was denied.116 Baumer’s claims and the reasons
for their failure are typical of SBS appeals, as we will see. The primary chal-
lenge was to the sufficiency of the evidence. In particular, Baumer’s appellate
lawyer emphasized the trial testimony of the defense expert, a pathologist,
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who suggested that birth trauma might explain Ben’s collapse. The prosecu-
tion experts denied this was a possibility. In their view, the meaning of the
triad was unambiguous.117 This was enough to satisfy the standard of appellate
review. The jury was entitled to credit the state’s experts, who unequivocally
established Baumer’s guilt. The court concluded that “when the evidence is
viewed in the light most favorable to the prosecution, sufficient circumstantial
evidence was presented from which the jury could reasonably infer that defen-
dant knowingly or intentionally caused serious physical harm to the victim.”118
Baumer further contended that her lawyer was ineffective for failing to pur-
sue the defense of birth trauma, instead speculating that another family mem-
ber had caused Ben’s injuries. This rationale for a new trial was also rejected.
Citing the “strong presumption that counsel’s performance constituted sound
trial strategy,” even when it did not prove successful, the appeals court refused
to “second-guess with the benefit of hindsight” the defense lawyer’s decision
not to argue that the baby’s brain was bleeding since birth. Her appeal denied,
Baumer faced another eight to thirteen years of incarceration.119
Many defendants, lacking the resources to fund a legal challenge, resign
themselves to their fates when an appeal fails. Those in a position to do so may
opt to attack their convictions collaterally. Baumer chose to file a petition for
a writ of habeas corpus in federal district court, raising claims of ineffective
assistance of counsel, insufficiency of the evidence, and actual innocence.120
Because she had not exhausted her available state-court remedies, however,
the petition was dismissed on purely procedural grounds.121 According to
the court, Baumer was required to move for post-conviction relief under the
applicable state statute authorizing such claims. Upon a denial of her motion,
Baumer would need to appeal first to the Michigan Court of Appeals, and
then to the Michigan Supreme Court before she could refile her federal
habeas petition.122 While she served her time in prison, Baumer’s case would
have to run its course in state court.
She had by now secured new legal representation. Baumer’s lead defense
attorney was the county prosecutor when charges against her were initi-
ated.123 (Because he never dealt directly with the case as a prosecutor, and
the trial was held after he left office, he was permitted to represent Baumer.)
In August 2009, four years after she was convicted, a three-day evidentiary
hearing was held before the trial judge that sentenced her. Later that fall, the
judge vacated Baumer’s conviction based on the ineffective assistance of her
trial lawyer.124
According to the court, defense counsel’s retention of a single expert to
testify at trial was not enough to meet the minimal standard of competent
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representation. The expert, a pediatric forensic pathologist, by her own admis-

sion was unqualified to interpret the key radiological evidence. “There was no
strategic reason for defense counsel’s failure to investigate and hire” the right
expert—in this case, a radiologist—wrote the court. Because the lawyer’s fail-
ure to do so “was based solely on financial concerns,” his performance was
legally deficient.125
What made the lawyer’s failings worse, according to the judge, was that—
despite appearances to the contrary at trial—Baumer had a valid medical
defense. Ben suffered from venous sinus thrombosis (VST), a condition
in which a blood clot forms in the sinuses that drain blood from the brain,
which led to the neurological symptoms that doctors mistook for SBS.
Three defense experts testified at the post-conviction hearing that VST was a
missed diagnosis, and that Ben was not abused. In the opinion setting aside
Baumer’s conviction, the trial judge stressed the shared opinion of the defense
experts: Ben’s radiology reports did not indicate any traumatic injury; rather,
the bleeding and retinal hemorrhaging was “clearly and solely due to VST.”126
The court recognized that medical testimony was the essence of the state’s
case against Baumer, and that the prosecution doctors relied upon CT/MRI
scans to diagnosis abuse. Given this, a competing interpretation of the radio-
logical evidence would have been critical to a trial defense. Because there was
a “reasonable probability that but for counsel’s error,” Baumer would have
been acquitted, the court determined that she suffered actual prejudice war-
ranting a grant of post-conviction relief. Baumer was conditionally released
from prison while the state appealed the ruling.
Since the evidence that Ben had suffered a childhood stroke was enough
to induce a judge to vacate Baumer’s conviction, her new lawyer, the former
prosecutor, expressed hope that the same proof would persuade the County
Attorney not to retry the case. “We think the evidence is overwhelming in
favor of her innocence,” he remarked.127 But after the Michigan Supreme
Court declined to hear its appeal, the state chose to proceed once again.
The second trial lasted over three weeks. The prosecution presented five
experts—three who read the radiology reports, and two who treated Ben—
and the defense offered six.128 This time, the SBS triad was not enough to con-
vict. “There was absolute reasonable doubt,” said the foreperson. “We had two
sets of experts with two different opinions. Who do you believe? We had to
set that aside and say, ‘Is Julie responsible for this?’ And the answer is ‘no.’ ”129
Baumer spent four years in prison. But she was fortunate to have hap-
pened upon lawyers, students at the University of Michigan Law School’s
Innocence Clinic, and doctors willing to donate their time to exonerate her.
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Few defendants have the resources to afford Baumer’s defense—which would

have cost more than $150,000 in fees, were it not for the pro bono efforts of
her dedicated team.130
When the case ended, there were those who continued to believe that the
triad proved guilt: prosecutors, their experts, Ben’s adoptive family.131 For
the trial judge and for a jury, the radiology scans used to diagnose SBS were
in fact powerful evidence of a natural disease process—one that the state’s
doctors completely failed to detect. According to one of the defense neuro-
radiologists, Doctor Michael K., “while this condition has been recognized
for decades, it is a difficult diagnosis that is often missed, particularly on CT
scan.”132 In Ben’s case, doctors should have ordered a prompt MRI scan of
the venous sinuses, suggested Doctor K. But even with “good imaging, this
diagnosis may still be missed.”133
Like other “mimics” of abuse, VST provides jurors with an alternative
cause of the three symptoms that, according to the state, have their origin
in shaking alone. But it is difficult for a defendant to unearth this condition.
More often, the presumptive diagnosis of SBS is presented as the only real
possibility. When the state’s doctors default to abuse if presented with the
triad, or when the defense fails to hire experts qualified to review the imaging
(or other relevant tests, for that matter), an innocent explanation may well
go uncovered. About VST, Baumer’s lawyer remarked after the acquittal, “If
you’re not looking for it, you won’t see it.”134
Drayton Witt
In 2002, just convicted by a jury of shaking his four-month-old son Steven
to death, Drayton Witt addressed the court for the first time. “Your Honor,
[I would] like to introduce myself, first off. To everybody in the courtroom,
I am the defendant. But to people that know myself, I am Drayton Shawn.
I know you get a lot of people in front of you daily saying I am sorry, asking
for mercy. I am different. I am not sorry, for I didn’t do no wrong. But I am up
here to tell you how much my son meant to me.”135
After hearing from Witt, the judge was ready to pronounce sentence. “I
did preside at the trial. I would say the expert testimony was overwhelming
that this was not the result of any illness and anyone who sat in this court-
room for those two weeks, listened to those individuals, would be likewise
convinced.”136
Yet those who sat in the courtroom during Witt’s trial, however convinced,
were not privy to important medical evidence. Despite “overwhelming”
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expert testimony that “this was not the result of illness,” in fact the baby’s
death was quite likely the result of illness. But this would only become appar-
ent a decade later. Without any reason to believe that Witt’s conviction would
ultimately be vacated, the judge sentenced the defendant to twenty years in
prison.
In 2012, Witt’s new lawyers at the Arizona Justice Project contacted Doctor
A. L. M., the forensic pathologist who conducted Steven’s autopsy, and asked
that he review the case.137 After doing so, Doctor M. made an extraordinary
proclamation: “I have determined that I cannot stand by my previous conclu-
sion and trial testimony that Steven’s death was a homicide. . . . If I were to
testify today, I would state that I believe Steven’s death was likely the result of
a natural disease process, not SBS.”138
In his sworn declaration submitted on behalf of Witt, Doctor M. explained
why, a decade before, he ruled Steven’s death a homicide:
By the time of the autopsy, I was notified that physicians at Phoenix

Children’s Hospital suspected that Steven Witt had been a victim of
child abuse and, more specifically, Shaken Baby Syndrome (SBS). I did
not find any outward signs of abuse (or violent impact) on Steven’s
body, but, during this autopsy, I observed that Steven Witt had retinal
hemorrhages and optic nerve sheath hemorrhages (bleeding within
the eyes and around the optic nerve), subdural hemorrhage (bleeding
in the subdural area overlying the brain), and cerebral edema (brain
swelling). Based upon these observations during the autopsy and the
consensus of medical and scientific research and knowledge known to
me at the time, I concluded that Steven died from SBS.139
At Witt’s 2002 trial, Doctor M. testified for the prosecution in a man-

ner consistent with these autopsy findings. He was now disavowing this testi-
mony. In explaining his turnaround, Doctor M. stated under oath that, since
Witt’s trial, there had been “significant developments in the medical commu-
nity’s understanding of SBS, most of which serve to undermine the reliabil-
ity of the SBS diagnosis.” Many conditions, he added, could create the “very
symptoms and injuries once thought to be nearly exclusively attributable to
SBS.” New perspectives on the triad cast doubt on the version of the diagnosis
that convicted Witt of murder.140
As Doctor M. also observed, the baby had a “complicated medical his-
tory, including unexplained neurological problems.” In his view, these prob-
lems were overlooked clues to what happened to Steven.141 Other experts,
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reviewing Witt’s file at the request of his lawyers years after he was con-
victed, thought the same. One of these doctors was Doctor A. Norman
Guthkelch, the author of the 1971 paper, “Infantile Subdural Hematoma and
Its Relationship to Whiplash Injuries,” among the first studies to advance the
hypothesis that would later become SBS. Doctor Guthkelch, in a sworn affi-
davit filed on behalf of Witt,142 criticized the assumption underlying the clas-
sic diagnosis—namely, that the triad meant that a baby had been shaken. As
Doctor Guthkelch remarked, there was “not a vestige of proof when the name
[SBS] developed that shaking alone causes the triad—subdural hematoma,
retinal hemorrhages, and brain swelling. . . . In fact, it is likely that many other
things besides shaking can cause the triad.” Doctor Guthkelch concluded, a
“diagnosis of non-accidental death, such as ‘shaken baby syndrome,’ is not jus-
tified when the only evidence of abuse available is the triad.”143
Steven’s SBS diagnosis exemplified the danger of equating the triad and
abuse. The case demanded a far “more thorough review” than was given.144
Indeed, Doctor Guthkelch cited a host of “confounding factors” arising dur-
ing the baby’s short life that might have contributed to his death: several
attacks of persistent seizures (one requiring a six-day hospitalization at the
same children’s hospital where doctors would only a month later diagnose
SBS); a flawed intubation in which the tube was misplaced into the esopha-
gus, depriving the baby of oxygen; a recent infection; a possible metabolic
disorder; and severe dehydration.145 When asked in a deposition whether
there was enough evidence to say that Steven was abused, Doctor Guthkelch
responded with an unqualified “No.”146 Five other doctors reached a similar
conclusion: this was a death from natural causes.147 In the experts’ opinion,
Steven probably died from venous thrombosis.148
Based on this new evidence, Witt’s lawyers petitioned in early 2012 for a
new trial. Under state procedural rules, a defendant is entitled to relief when
newly discovered evidence would probably have changed the verdict. Here,
Witt’s attorneys argued that there was a “significant shift in medical opinion”
regarding the cause of Steven’s death, and an evolution in SBS generally. Witt’s
conviction rested on medical testimony that could “be demonstrated to be,
in material respects, false and in other respects subject to a fierce medical and
scientific debate.” With the new evidence before it, a jury might well view Witt
as innocent—or, at the very least, possess reasonable doubt about his guilt.149
For months before their baby’s death, Witt and Steven’s mother, Maria,
sought medical explanations and treatment for Steven’s obvious neurologi-
cal problems. After his six-day stint at the children’s hospital, the infant was
released without an explanation for his continuing seizures. Steven’s health
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continued to prompt concern and calls by Maria to the hospital emergency

room and to the family pediatrician, who noted the possibility of a sepsis
infection in the wake of the baby’s recent hospitalization. Maria repeatedly
asked the pediatrician for a referral to a pediatric neurologist who was cov-
ered by her insurance, to no avail. In the weeks before his death, Steven was
feverish and experienced frequent bouts of vomiting.150
One night, Witt became worried that his baby was deteriorating. He
drove to the restaurant where Maria was working and the two brought Steven
to the hospital. On the way, Steven had another major seizure. After a failed
effort to insert a tube in the trachea, the infant’s heart stopped beating. Before
his transfer back to the hospital where he had been admitted for recurring
seizures the month before, Steven became severely dehydrated. On top of car-
diopulmonary arrest, he was diagnosed with possible sepsis.151
Upon his arrival at the hospital, however, doctors became fixated on a
diagnosis of SBS. Within about an hour, according to the trial testimony of
Doctor Patricia T., the pediatric critical care doctor, she discovered bilateral
retinal hemorrhages.152 At this point, she explained, “I suspected and would
be concerned that there was a head injury.” Asked by the prosecutor, “what
would that be,” Doctor T. answered, “The entity called shaken baby syn-
drome. He came in with really a catastrophic, unexplained event with little
history to support it, quit breathing, and then retinal hemorrhages. And it
was really the only finding of significance that I could find on Steven.”153
Doctor T. proceeded to order a CT scan, which showed subdural hygroma
(pooling of cerebrospinal fluid into the subdural region), subdural bleeding,
and cerebral edema, all of which confirmed for Doctor T., “it’s a traumatic
injury.” Soon after, child protective services, the police, and the hospital’s child
abuse specialist were notified. The case followed the standard course, with
doctors along the way confirming the early suspicion of SBS. Even Steven’s
documented medical history did not disrupt the conventional diagnostic
approach to the triad. The hospital’s neurologist who had treated Steven dur-
ing his hospitalization the month before was never consulted. Steven died the
next day.154
Present during the autopsy were a child abuse pediatrician and a police
detective.155 No attention was given, it seems, to what experts would later
identify as a thrombosed [clotted] vein in one of the autopsy photographs.156
Upon the classification of Steven’s death as a homicide, Witt was charged
with first-degree murder.
The state’s proof of guilt was the routine testimony of doctors regarding
the definitive meaning of the triad. Steven’s injuries were caused by whiplash
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forces as powerful as the forces generated by high-speed motor vehicle acci-

dents. As a result of this violent shaking, bridging veins tore and caused
immediate neurological collapse. Apart from shaking, only a “severe head-on
car accident” could bring about this type of retinal hemorrhage, which was
described as “large globules of blood with sharp edges and acute looking
bright red.” In short, as told by the state’s five doctors, Steven’s injuries were
caused by violent shaking that could only have occurred while he was in his
father’s care. The baby’s difficult birth, his persistent and unexplained sei-
zures, his past fevers and infection, all of which were documented, were not
relevant to his final collapse. Doctors were certain that SBS was the correct
diagnosis. At trial, Witt’s only expert was a forensic pathologist who, without
really undermining the state’s testimony regarding SBS, suggested that Steven
had probably died of dehydration.157
Witt’s conviction was cast in doubt only after he had served a decade in
prison, when effective expert review of Steven’s medical records uncovered
fundamental weaknesses in the evidence against Witt—the very evidence
that once seemed “overwhelming,” in the words of the sentencing judge.
Unlike when Witt was tried, his lawyers were able to identify a plausible alter-
native cause of the baby’s death. Its experts were of the collective view that
Steven died from an ongoing disease process, one that may have led to venous
thrombosis.158
An explanation for the baby’s death was not all that was new since the
trial. As Witt’s lawyers emphasized in their new trial motion, establishment
consensus had shifted regarding the mechanics of SBS, its “mimics,” and its
unknowns.159 With the benefit of time, it was clear that many of the opinions
of the state’s experts were weakly supported; others were wrong.
The state did not file a response to Witt’s petition for post-conviction
relief, and in the spring of 2012, Witt was released from prison.160 Maricopa
County Attorney Bill Montgomery initially promised to retry Witt, explain-
ing that his office continued to believe Witt was guilty. (This is the case where
the prosecutor explained, “Obviously we believed it the first time around.”161)
Though the diagnosis used to prove guilt at the time of Witt’s conviction had
been revised substantially, Montgomery commented, “I think we’re still look-
ing at cases where children were injured.” But, he acknowledged, “how we
prove that may change.”162
In court, guilt is proven with evidence—in SBS prosecutions, medical
evidence. Regardless of what prosecutors (or doctors) may happen to believe
about the meaning of the triad, any “change” in how guilt is established
depends on the continued willingness of experts to testify to the requisite
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degree of certainty about its diagnostic worth in a particular case. Faced with
this reality, it is understandable that the Maricopa County Attorney later
moved to dismiss all charges against Witt.163 Whatever prosecutors may have
believed, they could not prove Witt’s guilt.
Abigail Tiscareno
Abigail Tiscareno’s first trial, in 2004, was much like those of others whose
prosecutions rest on the triad.164 When one-year-old Nathan was left at
Tiscareno’s Park City, Utah, day care that morning, he appeared to be healthy.
Just hours later, Tiscareno called 911 to report that the baby was having trou-
ble breathing. Nathan survived but suffered permanent brain damage, and
Tiscareno was charged with felony child abuse.165
At her trial by jury, prosecution experts testified that the injury to Nathan’s
brain was so severe that it would necessarily have been inflicted immediately
before the child collapsed. As one doctor explained, “he would have been
severely injured and it’s just not consistent that he would have done anything
after the injury occurred.”166 Because Tiscareno was with Nathan when he fell
unconscious, she was deemed guilty.
Although a CT scan showed two colors of blood, raising the prospect of
older bleeding in Nathan’s brain, the prosecution witnesses dismissed this
possibility. The child abuse specialist who directed the hospital’s child abuse
program, Doctor Lori F., testified that “there was no evidence that I could
determine in consulting with all of the other physicians that there was a pre-
existing chronic bleed in Nathan’s head so that it was all very acute or all very,
very fresh.” Doctor Marion W., the neurosurgeon, stressed that “there was no
old blood at all that we could see. Everything we saw was fresh.”167
In addition to the medical evidence, the prosecutor introduced Tiscareno’s
account to police investigators. The caregiver described finding Nathan in
his crib in a semiconscious state, gasping for air. She attempted to rouse him
by calling his name, twice, and jostling him back and forth. This was pre-
sented as her confession to the abuse. At trial, Tiscareno maintained that she
never shook Nathan other than in the course of revival efforts. But, as is typi-
cal, she could provide no satisfactory explanation for the baby’s neurological
symptoms.168
In contrast, the prosecution experts offered certainty: Nathan’s inju-
ries were acute. Admittedly, parts of the hematoma evidenced by CT scan
and later removed from his brain were suggestive of old bleeding. But a clot
was sent to pathology and, according to the uncontroverted testimony of
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prosecution doctors, the results of this microscopic analysis confirmed that

the bleeding was entirely new.169
In closing argument, the prosecutor emphasized the doctors’ insistence
that “this injury could not have occurred at any other time but in the morn-
ing,” when Nathan was in Tiscareno’s care. Discounting a defense expert’s tes-
timony that the baby’s brain may already have been bleeding when he was
left with the caregiver, the prosecutor remarked, “Doctor [W.], the man who
opened up Nathan’s skull and looked inside . . . would have a firsthand account
of whether or not there’s new or old blood.” There was no old blood, the pros-
ecutor maintained.170
Tiscareno was convicted. A mother of three school-aged children, she
faced fifteen years in prison when her new team of lawyers discovered a
pathology report that had never been disclosed to the defense.171 The report,
which was inexplicably missing from the medical records provided by the
state, revealed that the hematoma found in Nathan’s brain—the one that had
been sent to the laboratory for pathological analysis—in fact contained old
bleeding. Microscopic testing showed that the chronic subdural hematoma
observed on the CT scan (then denied by the doctors who testified against
Tiscareno) was indeed real. There was old blood.172
This report had just been found when the trial judge granted the defense
motion for a new trial, on unrelated grounds. (The jury had been improperly
instructed.) Despite the emergence of a central fact that directly contradicted
its experts’ repeated assurances, and upon which the caregiver’s conviction
rested, the prosecution nonetheless decided to try the caregiver a second
time. This time, there was no denying that Nathan’s brain was bleeding before
he was placed in Tiscareno’s care on the day in question. But the state’s doc-
tors still were certain that the baby had been shaken immediately before he
collapsed. Now that the presence of old bleeding was a given, the experts min-
imized its diagnostic significance. The chronic subdural was a nonfactor, its
origins unknown and its import negated by the newer blood.173
At Tiscareno’s second trial, Doctor Lori F., the child abuse specialist,
adhered to the position that Nathan must have been abused on the defen-
dant’s watch. “[A]t the time that he was normal,” she explained, “he couldn’t
have been injured this severely.” The “configuration of retinal hemorrhages”
excluded all non-traumatic possibilities. And because of Nathan’s “severe neu-
rological deterioration, severe edema, massive hemorrhage,” this was neces-
sarily “a new injury.” Asked whether there was “anything in your evaluation
of Nathan, including all of the tests you—that you reviewed, the doctors you
consulted with, your experience, to suggest that this was—that his injuries
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were a result of significant trauma, a lucid interval, and then some kind of
spontaneous reoccurrence of bleeding,” Doctor F. answered simply, “no.” She
later added that it was “the degree of seriousness and amount of trauma that’s
reported at surgery and the amount of brain injury that he suffered at that
moment that caused me to make the diagnosis that he was quickly symptom-
atic. His injury was so severe as to be as close to fatal as you can get.”174
Because of the presence of old blood, now conceded, there could be no
question that Nathan experienced an interval of lucidity while his brain bled.
But Doctor F. nevertheless insisted that new bleeding was what caused Nathan
to collapse, and that it (the new bleeding) was inconsistent with a period of
consciousness. On cross-examination, defense counsel pressed Doctor F. on
her underlying reasoning, which proved rather circular.
Q: So the fact that there are disrupted or broken axons is the reason that the
person is immediately symptomatic?
A: Right.
Q: What evidence, I want you to tell me everything that you rely on that
shows that Nathan [] had axons that were disrupted or broken?
A: We only have clinical evidence. The acute traumatic unconsciousness that
he experienced.
Q: He was unconscious?
A: He was unconscious. We don’t have histologic [microscopic] data. We
have brain edema, which shows that there’s damage.
Q: Swelling. What else?
A: Those are the main reasons.175
Doctor F. conceded that chronic subdural hematomas can re-bleed spon-

taneously, but declared that this had not occurred with Nathan. Chronic sub-
durals, she explained, “don’t generally cause traumatic unconsciousness. The
symptoms are much more indolent. They progress much more slowly, you get
an idea that the kid is becoming more irritable, slowly becoming more lethar-
gic or they may just have no symptoms at all.” While acknowledging that the
re-bleeding of a chronic subdural can be asymptomatic, Doctor F. neverthe-
less remained confident that Nathan’s new hemorrhaging was fully unrelated
to the old. Because he was a healthy child with no indications of neurologi-
cal impairment—no irritability, no lethargy, no vomiting, no lack of appetite,
no fever—it could not have been the case that Nathan was experiencing the
re-bleeding of a chronic subdural. Doctor F.’s understanding in this regard came
from the baby’s father, who reported that Nathan had been “fine all week.”176
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Defense counsel probed further:
Q: So in making that diagnosis, you are relying on the accuracy of what he

tells you?
A: Yes.
Q: You didn’t talk to anyone else?
A: No.
Q: In front of you is a book of exhibits. . . . Do you see that book?
A: This one?
Q: Yes.
A: Okay.
Q: Let me represent to you that the tabs one, two, four—one, two, and four
are Nathan’s medical records prior to the time he was admitted to the
[hospital]. . . . Have you reviewed those?
A: No.
Q: Never seen them?
A: Not from his pediatrician, no.
Q: So in making the diagnosis as to what happens to Nathan and telling the
police investigators . . . what occurred, you didn’t think it was important to
review his pediatric records?
A: No.177
Doctor F. admitted that, within hours of first seeing Nathan, she told the
police that Nathan had been severely shaken and that he would have lost con-
sciousness immediately thereafter. She well understood the significance of
this diagnosis for law enforcement purposes. As she testified:
Q: You created a time line for the officers, correct?

A: Correct.
Q: As to [how] this abuse could have occurred?
A: Yes.
Q: And it wasn’t a time line as to this is what I think it probably is, you said it
was impossible for it to have occurred any time outside of your time line,
agreed?
A: It was based on symptoms, yes.
Q: Not asking you—I’m just asking you, that’s what you conveyed to the
officers?
A: That’s correct.
...
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Q: At the time you told them that, you had a CT scan which had been read by
a neuroradiologist as indicating that Nathan had an acute subdural super-
imposed upon a chronic subdural, agreed?
A: Uh-huh.178
Doctor F. was sure that Nathan’s bleeding was caused by recent shaking—
so sure that she proceeded despite CT scan evidence to the contrary. At the
very least, ambiguity surrounding the scan would seem to have suggested the
need for agnosticism regarding the cause of the baby’s symptoms, particularly
since a pathologist would soon be examining the tissue on a microscopic level.
But the same certainty that would later allow Doctor F. to reject the relevance
of the old bleeding might explain why she declined to reserve judgment pend-
ing review of the pathology finding.
Q: It didn’t occur to you to even inquire, to go, well, goll, we’ve got the CT
scan that says it’s a chronic . . . what [is] the pathology report [] going
to say?
A: I didn’t know a piece of tissue had been sent to pathology. It would depend
on the neurosurgeon to do that.
Q: I didn’t ask you if you knew this had been sent. I asked you if you knew
that it’s an important piece of the puzzle.
A: It is important.
Q: And yet you narrow this time line and sent everyone on their way and
said it can only be at this time frame without ever getting that pathology
report?
A: Yes.
Q: Not only did you not get it that day . . . or that month, you never got it?
A: That’s correct.179
Even when she did read the report and learned that there was old bleeding,
Doctor F. held steadfast to her belief in the correctness of her original conclu-
sion. She admitted as much in her testimony at the second trial. When asked
“in terms of the time line as to who could have perpetrated this, in your mind,
that is an absolute; nothing is going to change that?” Doctor F. responded,
“In this scenario, nothing [is] going to change my mind.” Queried, “that’s an
absolute,” she answered, “yes, that’s an absolute, yes.”180
This time around, though, a trial judge acquitted.181 Defense experts
had successfully challenged the notion that the old bleeding was irrelevant
to Nathan’s condition. In their estimation, Nathan was likely experiencing
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a protracted neurological decline.182 The judge also heard about the limita-
tions of CT findings, both for establishing a time frame for bleeding and for
identifying its origins.183 No single, definitive explanation for Nathan’s condi-
tion was provided by the defendant. But the prosecutor could not overcome
evidence that the baby’s brain was already bleeding when he was delivered to
Tiscareno.
Many other prosecutions involving unexplained chronic bleeding (and
caregivers with equally impeccable records) have resulted in convictions. This
mother was returned to her children.
Of her eighteen-month ordeal, which included the contemplation of fif-
teen years in prison, Tiscareno says, “I no longer had a life. I just wanted to be
with my kids and my husband and pray it would be over.”184 She recounts how
her children were mocked at school and her family’s savings were spent on her
defense. She describes her own public humiliation and the loss of a career in
child care. And she grieves for Nathan’s diminished existence. As Tiscareno’s
husband, Guillermo, tells it, “now everything is gone. I don’t care about the
money. Thank God I have hands to work. Maybe someday we can recover,
I don’t know. But they threw my wife’s reputation out the window. It’s going
to be hard.”185
This is the relatively happy ending.
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06_9780199913633.indd 96 1/29/2014 1:08:14 PM
6 CONFESSIONS
Confessions are a bedrock component of SBS diagnosis. When

suspects admit to shaking infants in their care, their guilt is con-
firmed. A confession not only forecasts a criminal conviction; it
also sustains the triad as a diagnostic construct. A leading treatise
on abusive head trauma makes this point quite simply: “To those
who argue that the contribution of shaking to the pathophysiol-
ogy of AHT is a hypothesis lacking a sufficient evidentiary base,
the consistent and repeated observation that confessed shaking
results in stereotypical injuries that are so frequently encountered
in AHT . . . is the evidentiary basis for shaking.”1
Using “confessions” to establish the validity of a medical diag-
nosis raises serious concerns.2 Even apart from whether this meth-
odology qualifies as scientific, there is good reason to hesitate
before deriving firm conclusions from it. First, statements framed
by doctors and prosecutors as confessions may not actually be con-
fessions. Second, many interrogations of SBS suspects take place
under conditions that have been shown—consistently—to bring
about untrue admissions of guilt. I consider each of these limita-
tions in turn.
Non-Confession Confessions
In SBS cases, the notion of what constitutes a confession is not
straightforward. Most often, one of three accounts is offered by
caregivers to explain an infant’s loss of consciousness or similarly
severe neurological symptoms. The first is that their onset was
unprovoked, or without any apparent cause. Another is that the
infant fell from a short distance. A final explanation is that the
infant was shaken playfully or in the course of revival efforts.3
Research over the past decade has shown that each of these expla-
nations is plausible. But because law enforcement officers interro-
gating the SBS suspect believe they know that the infant’s injuries
07_9780199913633.indd 97 1/29/2014 1:46:35 PM

were caused by violent shaking—the doctors are certain of it—these narra-

tives are each perceived as false and, therefore, incriminating.
Suspects who seem genuinely baffled about an infant’s collapse are regarded
as lying to cover their violence. The “discrepant history,” where a caregiver
provides a version of events that “does not match the physical condition” of
the baby (as the physicians comprehend it), is considered further proof that
the infant was shaken.4 Likewise, any description of a sudden and inexplicable
collapse contradicts the doctors’ understanding of what must have happened
in the case. The caregiver’s history is thus deemed discrepant or false, and
treated as a form of confession. As one nationally prominent SBS prosecu-
tor explained, these statements are “compelling evidence of the abuser’s con-
sciousness of guilt.”5 Dismissed outright is the possibility that the caregiver’s
history—and not the SBS diagnosis—is accurate.
Parents and caregivers often try to provide an explanation for the child’s
condition. When the interrogator insists that the baby’s neurological symp-
toms could not have been caused in this manner, suspects typically continue
to offer other alternatives. But they are not medical professionals, and their
grasp of the “differential diagnosis” is inevitably limited. Other knowledge
deficits are at work. Caregivers, in particular, may know very little about the
baby’s health preceding the steep decline. And regardless of their relationship
to the child, suspects are ignorant of preexisting neurological conditions that
have not yet manifested. But rather than view multiple explanations provided
in the course of lengthy interrogation as a genuine effort to explain a medical
mystery, police and prosecutors see the “evolving” account as another indica-
tion of guilt.6
So, too, when SBS suspects tell of attempting to revive a collapsed baby
with a few shakes, these statements are also treated as confessions. Revival
shaking may reflect an almost primal impulse to respond to an infant’s uncon-
sciousness or choking with jostling. Indeed, initiating movement back and
forth is recommended by the American Heart Association as a way to begin
CPR.7 We would expect, then, that honest accounts of what transpired in
these cases would at times include references to shaking. Yet these accounts
would then be characterized as inculpatory proof that the suspect caused the
baby’s death or serious injury.
There are real evidentiary problems with styling descriptions of revival
shaking as admissions of guilt. First, doctors—even those testifying for the
prosecution—are clear that this kind of shaking cannot generate force levels
sufficient to bring about the triad. A more fundamental problem with view-
ing this category of explanation as confessional is one of causation. Suspects
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Confessions • 99
attempting to revive an impaired baby by shaking do so only after finding

the infant in a severely impaired neurological state—seizing, blue, limp, or
unconscious. The shaking does not precede, much less cause, the baby’s symp-
toms. Quite the contrary, it is in direct response to them. Still, when these sus-
pects describe what they have done, they are portrayed as having confessed.
The SBS suspect can hardly avoid self-incrimination. No matter which
explanation is offered, the investigator’s certainty of guilt is only reinforced.
Since, as a starting proposition, the triad establishes the suspect’s guilt, the
suspect cannot hope to persuade anyone otherwise. Attempts to do so readily
become styled as “confessions.”
Unreliable Confessions
A separate problem is that innocent people may actually confess to crimes
they did not commit. Of the hundreds of defendants exonerated by DNA,
many falsely confessed.8 Absent the possibility of DNA exoneration, it is dif-
ficult to prove the falsity of a confession. Even so, some SBS interrogations
have resulted in incriminating statements that are later shown to be inaccu-
rate. For instance, one woman suspected of shaking her son to death was ques-
tioned by the police and confessed to doing so; but a later autopsy found no
signs whatsoever of SBS.9 A jury acquittal or judicial dismissal in cases with
a confession also tend to cast doubt on the veracity of a defendant’s admis-
sion of guilt, as does the ultimate discovery of a natural disease process. The
untruthfulness of an admission can at times be surmised.
Although proving the falsity of a confession is a virtual impossibility,
courts have occasionally been disturbed enough by police interrogation tech-
niques to suppress the resulting statement.10 And, in still more cases, an inter-
rogation that does not violate a suspect’s constitutional rights nevertheless
raises real doubts about reliability.11 All told, there is good reason for caution
when evaluating the truth-value of confessions to shaking.
A recent Seventh Circuit opinion authored by Judge Richard Posner
highlights these concerns.12 The case addressed whether police officers
could be sued for their conduct in relation to the false arrest and unlawful
interrogation of an SBS suspect. (The answer was a qualified yes.) The facts
of the case began as many do. Rick Aleman, a father of five, provided day
care in his Hanover Park, Illinois, home. One of the children in his care
was Joshua, nearly a year old. In September 2005, after two days of lethargy
and fever, Joshua began gasping for air and collapsed soon after his mother
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left him. Aleman performed CPR and then called 911. He was arrested
forty-five minutes later and, after Joshua died, charged with first-degree
murder.
But the case against Aleman “quickly disintegrated.” The doctors who
treated and diagnosed Joshua as suffering from SBS “eventually decided” that
the boy’s injuries could have occurred well before he was delivered to Aleman.
Prosecutors were concerned after watching Aleman’s videotaped interroga-
tion, both because it may have violated Miranda and because the supposed
confession seemed “more exculpatory than inculpatory.”
Perhaps most important to the outcome of the case, child protective
workers came upon another obvious suspect: Joshua’s mother, described as
a “violent person with a criminal record.” Given their own medical experts’
willingness to concede the possibility of a lucid interval, the discovery of an
attractive alternative suspect may well have contributed to prosecutors’ deci-
sion to dismiss the case against Aleman a year after his arrest. ( Joshua’s mother
was never charged.)
According to the Seventh Circuit’s opinion, the autopsy determina-
tion was influenced by one of the investigating police officers, Officer Todd
Carlson, who gave the pathologist misinformation about Joshua’s condition
prior to his collapse. The baby was not “behaving normally” or “up and run-
ning around,” as Officer Carlson had reported. “These lies,” as the court char-
acterized them, caused the pathologist to revise her first impression, which
was that Joshua’s injuries were most likely not inflicted by Aleman. It seemed
his brain was already bleeding when Aleman began caring for him that day.
Still, when the pathologist heard Officer Carlson’s mischaracterization, she
altered her medical determination; it became consistent with a theory of
Aleman’s guilt.
The investigative process went further awry when the suspect was interro-
gated. Police told Aleman that, according to three doctors, Joshua was shaken
in such a way that he would have lost consciousness immediately—meaning
the caregiver was the perpetrator. Aleman, who had attempted to revive the
baby after witnessing his collapse, responded as follows: “I know in my heart
that if the only way to cause [the injuries] is to shake that baby, then, when
I shook that baby, I hurt that baby . . . I admit it. I did shake the baby too hard.”
Yet, as the interrogation progressed, Aleman “continued to deny, and express
disbelief, that he could have caused the injury.”
In the Seventh Circuit’s estimation, the suspect’s so-called confession was
both coerced and “worthless as evidence.” On both scores, the court’s reason-
ing is instructive.
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Confessions • 101
With regard to the involuntariness of Aleman’s statement, the court

observed, the information police provided the suspect regarding “settled
medical opinion” was false. In this case, it was false because the interrogating
officers misrepresented what the doctors believed at that point about Joshua’s
condition. In the more typical SBS interrogation, there is no such misrepre-
sentation—the doctors really do feel certain of the suspect’s guilt—but the
substance conveyed by the police is just the same as in Aleman’s case, as is its
effect. The court explained:
Not being a medical expert, Aleman could not contradict what was
represented to him as settled medical opinion. He had shaken Joshua,
albeit gently; but if medical opinion excluded any other possible cause
of the child’s death, then, gentle as the shaking was, and innocently
intended, it must have been the cause of death. Aleman had no rational
basis, given his ignorance of medical science, to deny that he had to
have been the cause.
On the related question of reliability, the court was similarly troubled. As is

typical, Aleman was informed that the medical evidence proved that the baby
was violently shaken to death, and that he was shaken just before his collapse.
It was a “logical necessity that [the caregiver] was responsible for the child’s
death,” the court noted. “Q.E.D.” Aleman could hardly be expected to chal-
lenge the police-given (normally doctor-given) interpretation of the medical
evidence. “Not being an expert in shaken-baby syndrome,” the court explained,
Aleman was placed in a “vise.” He was given no real option but to confess:
If a question has only two answers—A and B—and you tell the respon-
dent that the answer is not A, and he has no basis for doubting you, then
he is compelled by logic to “confess” that the answer is B. . . . A confes-
sion so induced is worthless as evidence.
Aleman’s interrogation is not unusual. The patterns we see in SBS inter-

rogations are striking for their tendency to produce just this kind of unreli-
able statement. This is a recurring problem, as interrogations in SBS cases are
routine. Police investigations of suspected shaking almost invariably involve
intensive questioning. For the most part, caregivers and parents are willing
to deal with police without the presence of counsel. It is rare for a suspect to
refuse to answer questions or to request a lawyer. Most are new to the criminal
justice system. Many seem to believe that this will soon be resolved.
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On the police side of the equation, the investment in interrogation is

worthwhile. Crimes involving babies have long been a top law enforcement
priority. But, in recent years, as the diagnosis has weakened, police incentives
to exact a confession have strengthened. Greater ambiguity surrounding the
triad means that the medical testimony is less sure to yield a conviction. As
we have seen, this loosening of diagnostic definitiveness does not necessar-
ily diminish the certainty of the state’s doctors, which then becomes the cer-
tainty of police investigators. In the interrogation room, the suspect’s guilt is
still considered a given. Nevertheless, in court, where a competing perspective
is more likely to be introduced than ever before, a confession has become even
more important for the prosecution. A confession may even obviate the need
for the state to prove its case: defendants who have confessed tend to plead
guilty before trial;13 after all, jurors tend to view confessions as powerful evi-
dence of guilt.14
Yet innocent suspects also confess, which raises the question of why. Based
on the DNA exonerations and on experiments that attempt to replicate the
interrogation room, we now know that particular risk factors contribute both
to compliant false confessions, where suspects are induced by police to con-
fess to a crime they did not commit; and internalized false confessions, where
“innocent but malleable” suspects come to believe that they have commit-
ted the alleged crime.15 When these known risk factors are present, as in SBS
cases they so often are, statements that result are of questionable reliability.
(I am referring throughout this discussion to statements made to police in the
course of questioning. “Confessions” obtained in the course of judicial pro-
ceedings as a requirement of a negotiated plea may well reflect a defendant’s
desire to accept the conditions of the deal; therefore they are also rather poor
proxies for truth.)
To see why this is so, let us now consider first the “situational,” and then
the “dispositional,” variables characteristically found in the SBS interrogation
room, along with how they correlate with false confessions.16
Situational
The dominant feature of most SBS interrogations is that the suspect’s guilt
is already accepted as a given. This message is conveyed with emphasis and
repetition. Since the science is portrayed as both unassailable and inescapable,
all that remains is for the suspect to acknowledge what doctors have already
gleaned from the medical evidence. SBS proves the crime and identifies the
criminal; there is no room for doubt or denial.
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Confessions • 103
This instills a sense that the result of the investigation is preordained, a

dynamic proven to foster confessions. When interrogators “exploit the psy-
chology of inevitability to drive suspects into a state of despair,” suspects
are more likely to acquiesce to the questioner. As psychologist Saul Kassin
explains this phenomenon, “Basic research shows that once people see an
outcome as inevitable, cognitive and motivational forces conspire to promote
their acceptance, compliance with, and even approval of the outcome.” This
psychological insight is borne out by a number of case studies of suspects
who falsely confessed. They did so because “they perceived themselves to be
trapped by the weight of the evidence.” Laboratory experiments have demon-
strated a similar effect.17
In many of the studies and in the actual cases, the “supposedly incontro-
vertible” evidence presented by the police is known to be false. This is differ-
ent from most SBS interrogations, where police detectives generally defer to
doctors’ certainty that the suspect is guilty. While there may be good reason
to condemn the tactic of lying to suspects by misrepresenting the evidence,
an officer who truly believes that the medical evidence of guilt is incontro-
vertible may pose the more serious problem for the integrity of a resulting
confession.
Psychologists have modeled the influence of investigator bias on the
elicitations of confessions, true and false. Research suggests that when an
interrogator assumes a suspect is guilty, the interrogator conducts “a more
guilt-presumptive interrogation.”18 In an early study, interrogators who
assumed guilt used more aggressive interrogation techniques, chose more
guilt-presumptive questions, and exerted more pressure on the suspect to
confess.19 Further, the effects of these techniques were even more extreme
when the suspect was innocent.20 The suggestion to emerge from this research
was that investigator assumptions of guilt contribute to false confessions.
A 2011 study confirmed this hypothesis.21 Researchers involved partici-
pants in what they thought was a problem-solving experiment that prohib-
ited collaboration. In some conditions, participants were enticed to “cheat”
by a study confederate; in others, no cheating occurred. To manipulate
investigator bias, experimental interrogators were told that the suspect they
would be questioning was believed to be guilty; or told that the suspect was
believed to be innocent; or, in the third scenario, given no information what-
soever related to likely guilt. “Interrogators” were trained for five weeks in
the actual techniques of field investigators, and told that their goal was to
obtain true confessions and avoid obtaining false confessions. The study
aimed to test whether pre-interrogation belief in guilt would result in more
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guilt-presumptive interrogation techniques and, ultimately, more frequent

confessions on the part of guilty and innocent participants alike.
Researchers found, first, that false confessions were increased by both the
use of “minimization” techniques—for example, offering sympathy, excuses,
or justifications for the crime—and “maximization” techniques—including
efforts to intimidate the subject by reference to incriminating evidence or
forthcoming punishment. Especially when minimization and maximiza-
tion techniques were applied in combination,22 the ratio of true to false
confessions went down “considerably.”23 Investigators who already assumed
the guilt of the suspect were more likely to use these tactics, as predicted
by earlier research. In this study, too, investigator belief in guilt led to more
“guilt-presumptive and pressure-filled interrogations,” thereby increasing the
likelihood that innocent suspects would confess.24
SBS interrogations tend to be guilt presumptive in the extreme. As the
research anticipates, these interrogations emphasize maximization and mini-
mization techniques known to be risk factors for false confession. We will see
these dynamics in operation when we turn to the transcripts of police ques-
tioning in SBS cases.
Dispositional
Preexisting stress is a demonstrated risk factor for false confession.25 In SBS
cases, parents and often caregivers have a tremendous stake in the well-being
of the critically ill baby. Police interrogators tend to capitalize on this emo-
tional vulnerability, explicitly or implicitly appealing to the infant’s condition
in an effort to elicit a confession.
But of all the dispositional traits that increase the odds of a false con-
fession, the one most relevant to the SBS context may be innocence. Based
on anecdotal and research evidence, psychologists have raised the “ironic
hypothesis that innocence itself may put innocents at risk.”26 In more precise
terms, “people who stand falsely accused tend to believe that truth and justice
will prevail and that their innocence will become transparent to investigators,
juries, and others. As a result, they cooperate fully with police, often failing to
realize that they are suspects not witnesses, by waiving their rights to silence
and a lawyer and speaking freely to defend themselves.”27 Analyses of inter-
rogations, laboratory experiments, and basic psychological principles lend
support to the idea that those who have committed no crime may be more
susceptible to police-induced confession. People seem to have “a naïve faith
in the power of innocence to set them free.”28
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Confessions • 105
In SBS interrogations, this belief in ultimate justice fosters the giving of

false confessions, particularly where confessing provides an immediate ben-
efit. Ending the interrogation is one obvious advantage. But, in some cases,
suspects also seem to believe that making a statement that satisfies the inves-
tigator will facilitate their return to the baby’s side. In other cases, parents are
told that a confession will allow the spouse to go or remain free.
Many interrogations end with confessions that are later retracted. It
becomes clear to those who have confessed falsely that the triumph of justice
cannot be presumed.
Inside the Interrogation Room

To describe the unfolding of actual interrogations, I have made liberal use of
transcripts, quoting from them extensively. Reading these passages can never
replicate the experience of being subject to interrogation, obviously. But the
transcripts offer a glimpse of the effects of repeated expressions of certainty.
Apparently endless reiteration of what the medical evidence proves—the sus-
pect’s guilt—allows for no possibility of innocence. Whatever the suspect has
to say seems not to matter. This suggests the need for circumspection when
evaluating the statements elicited in the course of SBS investigations.
In the cases below, each interrogator was sure that doctors were right
about the triad’s significance. And yet, as unlikely as it must have felt to every-
one involved at the time of the interrogation, each suspect would eventually
be found not guilty.
Richard Britts
In January 2010, three-month-old Saniya Britts collapsed.29 Richard, her
father, heard what he called a “nerve rattling gasp” from the baby’s crib. When
he quickly responded, he discovered her limp and unresponsive. After call-
ing his wife, he dialed 911. Saniya was brought to the emergency room of a
Springfield, Illinois, hospital, where doctors quickly realized that she was
experiencing seizures. A preliminary CT scan revealed massive bleeding in
the brain, and the infant was transferred to a hospital in Peoria with more
sophisticated pediatric services, where further radiological testing (CT and
MRI) was performed.30
Britts was questioned twice by the police. The first time was on the day of
the alleged shaking incident.31 Britts described for Detective Rick Dhabalt
the “nerve rattling gasp” that came from his baby’s crib. When he rushed to
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her, Saniya was limp and her eyes were rolled back in her head. Detective
Dhabalt asked Britts what he thought caused her “injuries.” Britts noted a
family history of seizures, which both his mother and brother experienced. At
the conclusion of the “preliminary interview,” Detective Dhabalt informed
the child protective worker that he was “waiting for a doctor to tell me abso-
lutely positively the injuries had been caused by the baby being shaken” before
scheduling the follow-up.32
This anticipated call with the doctor took place two days after Saniya
was hospitalized. Detective Dhabalt spoke with Doctor Channing P., the
child abuse pediatrician, who reported that an MRI had revealed subarach-
noid and subdural hemorrhages. There had not yet been an ophthalmology
consultation; so, per the pediatrician, “it was not know[n] if there were any
retinal hemorrhages and the extent of injuries in that area.” According to
Detective Dhabalt’s notes, the conversation with Doctor P. continued as fol-
lows: “When asked if she could determine when the injuries occurred she
was very emphatic and said the injuries occurred very shortly before the child
became symptomatic, explaining that the ‘shaking’ happened just before
Saniya began to show distress. When asked about the possibility that seizure
caused any of the injuries she advised that seizures are an electrical brain activ-
ity and these injuries are not related to that type of trauma. The injuries suf-
fered are directly related to having been shaken.” Doctor P. then proposed
that she “consult” with police during their follow-up questioning—“if the
parent(s) tried to offer an explanation for the injuries she would be available
to contradict their explanation.”33
The following day Detective Dhabalt spoke again to both parents at the
hospital where Saniya had been transferred. Saniya’s mother, Shantel, repeated
the explanation she had given the first time around. On the morning in ques-
tion, the baby was in her crib with her bottle when Shantel left for work. She
spoke to Britts throughout the morning and everything seemed fine, until he
called around noon to report that Saniya wasn’t breathing right. When asked
what might have happened, Shantel too pointed to the lengthy family history
of seizures on both sides of the family.34
After hearing this account, now for the second time, Detective Dhabalt
recalibrated his response. “The difference this time was that I told Shantel
that the injuries could not have been caused by anything other than having
been shaken.” After the detective physically demonstrated the mechanics of
SBS as he understood them, Shantel “maintained she did not believe Richard
would harm [Saniya].”35 Detective Dhabalt “continued to tell her Richard
shook the baby.” But Shantel just as steadfastly rejected this notion—in the
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Confessions • 107
police vernacular, “she would never acknowledge verbally that she believed
Richard injured Saniya.” When the conversation ended, the child protec-
tion caseworker advised Shantel “of some issues that she had concerning the
children” (Saniya and her sister), and warned that these “issues” would be
“resolved after the interview with Richard and the [sic] prior to her leaving
the hospital that day.”36
The follow-up conversation with Britts was quite unlike the first. It began
by Detective Dhabalt remarking, “things are developing now,” and “we’ve
learned some things” that required that Britts be given his Miranda warn-
ings.37 “Listen,” the detective said, “nobody’s questioning your love for your
children. I understand. I have children of my own, I love my children too.
I would never deliberately hurt my children, but sometimes something hap-
pens. There was an accident. Something, all of a sudden it was spun out of
control. You were, you were upset about something completely unrelated, you
picked the child up, you did something.”
The exchange continued:
Britts: No, I wasn’t mad about nothing.

Dhabalt: I hope, Richard, I hope you were because I don’t want you to tell
me you deliberately shook your baby, I don’t want you [to] tell me that.
Britts: I didn’t shake my baby. I didn’t do nothing to her, to my knowledge.
The detective then informed Britts that he would be the “deliverer of bad
news.” Doctors had taken two CT scans of Saniya and “determined” that
these were “shaken baby injuries.” “That baby’s brain is injured inside on the
front and back. And the only way that happens is for the brain to go forward
and hit the skull, backwards and hit the skull.”
As he would do many times that day, Britts tried to conceive of what
might have happened to his baby that could explain the neurological symp-
toms being described by Dhabalt. “What about when I was trying to give her
CPR?” Britts asked. “I did put my hand on her forehead and I don’t know
how much pressure I put on her.” This possibility was rejected by the detec-
tive, who continued the interrogation.
“Here is what I believe, Richard. I believe that you were taking care of the
children. . . . And you’re the only person that’s responsible for the injury that
Saniya suffered. I don’t know how it happened. I’m giving you the opportu-
nity to tell me. The doctors tell me that just prior to going into [the hospital]
the baby suffered some kind of traumatic injury to the brain, okay? Because of
the pictures they take of the brain at the time, they know, they see it.”
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“I’m trying to think, man.” Britts then wondered aloud if Saniya may have
hit her head on the crib.
“It would not cause that injury,” Detective Dhabalt replied, “Hitting a
head on the crib will not cause shaken baby syndrome.”
The interchange continued, with Britts slowly coming to terms with the
apparently undisputable fact that he had somehow harmed his baby:
Britts: What kind of, okay, this shaken, oh god. I did kind shake her head
cause she wasn’t responding. She was on the bed. She was laying on the
bed. I did not think about it. I did, I was trying to get her to respond man.
I did it, didn’t I?
Dhabalt: Richard, we aren’t there. Saniya can’t tell us. All’s her brain pic-
tures can tell us is that we know that this time she got shook . . . there’s only
one person in the room that can—
Britts: And that’s me.
Detective Dhabalt said again, “We know how it happened. We know it

was a shaken baby.”
Britts, finally accepting this unquestionable version of events, expressed
his horror that, in an effort to help his unresponsive baby, he had hurt her.
“Look when I panic and my adrenaline gets to pumping I don’t know how
hard I do things or how, I don’t realize it cause I’m heavy handed and I don’t
know. I hope I did not shake her brains loose. I, I would not intentionally,
I love my kids. You can ask anybody that knows me. My kids come first.
I would not intentionally batter my kids or shake my kids like this. This is
not me man. God, I hope I did not do it to her.” He later added, “I know
everybody’s pointing fingers at me. I’m the only one there but I would not
just shake my child like that man. That’s what I’m trying to tell you guys. I’m
not trying to get belligerent or nothing. I would not just shake my child. Why
would I have to do that when she’s sleeping?”
Detective Dhabalt answered, “I wasn’t there. I can tell you what the results
are. . . . We have a shaken baby.”
The conversation then turned to the force required to bring about Saniya’s
symptoms, though Britts and Detective Dhabalt were implicitly relying on
two conflicting chronologies (nonresponsiveness followed by shaking, as
opposed to shaking followed by nonresponsiveness). “I’m not saying it had
to be a deliberate act,” said the detective. “But it was violent enough to cause
the brain—”
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Confessions • 109
Britts interrupted, “How hard would I have had to shook her cause I did
shake her head to respond. I wasn’t trying to hurt my baby. I’m trying not to
cry right now. Excuse me.”
Returning to the question of force, Detective Dhabalt explained that “it
was violent enough to cause bruises and bleeds so if there was some frustra-
tion, if there was any kind of uh, displeasure with something else going on—”
The issue of timing surfaced when Detective Steven Walsh, who was also
present for the interrogation, interceded.
Britts: I was watching a movie. I was laying there. Everything was calm
and quiet, except for the movie going on. And I was panicking when she
gasped for that breath of air and she was limp I did panic. I know that for
a fact.
Walsh: She gasped because she had been shaken and she’s injured.
Britts: No, no.
Walsh: There was no injury prior to that, to her being shaken. Do you under-
stand that? She was fine.
Britts: I understand what you’re saying.
Walsh: She had no medical problems prior to that, right?
Britts: She was gasping for air.
Walsh: Because she had been shaken.
Britts: No. There’s no way that I, no, no, no.
Walsh: Richard, that’s exactly what happened.
For a while longer, the detectives pursued this theme, with Britts objecting
that he possessed no additional insight into what happened to Saniya. “You
know where that leads us without an explanation?” Detective Dhabalt asked.
“I don’t think you wanna hear where that leads us.”
Soon after, Britts, who must have realized that he could not satisfy the
detectives with his account of what happened, offered to confess, while still
proclaiming his innocence. “Look,” he said, “I can’t think of nothing. I will be
a man and I will take the fall for this. I, I’m not admitting to nothing. It’s on
the table. I’m not admitting to nothing but I don’t know what happened and
I don’t want anything else, I don’t, look, I don’t want my wife to lose Natieanna
[Saniya’s sister] because of this. If I have to go to jail, man, I don’t want to go to
jail for something I honestly don’t have an answer to. K? I’ll take the fall, man.”
Since this was not an adequate confession, Detective Dhabalt pressed on.
“The right thing to do here is if it was an accident and it happened you have
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to tell us. It has to be told.” And, capturing the complete certainty that sur-
rounds SBS, the detective added, “It can’t be unknown because the unknown
isn’t really an unknown based on what we know alright?”
Detective Dhabalt again reassured Britts that of course this was a “one-
time thing that happened,” not ongoing abuse, and that “nobody’s saying it
was a deliberate act.” But it takes “courage,” to admit when you’ve made a
“mistake,” the detective suggested, employing the techniques of minimiza-
tion. The conversation continued:
Britts: There’s no courage to work up, man, that’s the whole thing about it.
I’m just gonna say I had to have done it. I don’t know what I did I had to
have done it.
Dhabalt: We’re having this conversation because we know that, Richard.
Britts: That’s all I can say. Look, I, I don’t know what to say anymore, okay?
I’m not going to admit to something that I honestly don’t know what
I did. I have been sitting here for days thinking did I do something, did
I do something, did I do something. If I hurt my child man, I don’t know
what I’m gonna do to myself.
For the next few minutes, the detective pressed the idea that Britts acted
out of frustration, not malice. Britts reiterated that he was never frustrated
that morning, and that he had been playing with Saniya as usual. “I laid on my
back and I hold her in the air. I would kinda sway her a little bit. . . . I play with
her feet, jiggled her feet like this. I grabbed her arms and her feet and I jiggled
em, she liked it though. I bet you that’s what did it.”
But the motion Britts demonstrated was not consistent with the SBS that
the doctors would describe; detectives knew this, and tried to guide Britts to
the proper explanation. “Well this would have been front to back. The injury
is here and here,” Britts was told.
He returned to the possibility that his attempt at CPR could have caused
the bleeding.
“No, no, Richard, no.”
“Cause I had her head back,” Britts offered.
Detective Walsh then reengaged: “But the injury happened before that.
Okay? Stay right with what you got right there.”
So Britts once again recounted how he was playing with Saniya, “wiggling”
and “bouncing” her. He asked Detective Dhabalt if this “could’ve did it.”
“Yah, but it’d have to have been pretty hard.”
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Confessions • 111
“I wasn’t even bouncing her that hard,” Britts responded, like he was trying
to decide for himself whether he unwittingly could have harmed his daughter.
He began tearing up. “That have to have been what did it man, I did it, I know
I did it man. I had to cause that was the only time of any kind of jerking of her
head in that way. God I feel terrible. Can I talk to my wife please?”
Britts had now become convinced of his guilt, and wanted to share with
Shantel the awful information he had learned from detectives. “I wanna talk
to my wife cause I want [to] tell her I think I might have did it.”
“Well, I think she knows,” replied Detective Dhabalt. “I don’t think there’s
any question about it.” But the detective realized that Britts’s “confession” still
did not explain the medical evidence—or, for that matter, establish a crime.
“I guess we could have the doctor come in here and explain to ya in a differ-
ent way than we’ve explained it but I don’t think a little horsing around is
exactly—”
Britts interjected, “That’s all that happened man. . . . I really need to talk
to a doctor and find out if me bouncing her, I don’t know how hard I was
bouncing her man. I don’t know.” He was so horrified by what detectives were
telling him that, if Saniya ever got better, Britts said, “I can’t, I won’t be able
to ever touch her again.”
Mounting one last effort to obtain a confession that would align with
the doctors’ view of what must have happened, Detective Dhabalt reminded
Britts that the medical evidence showed that the movement was violent.
“She was smiling the whole time” they were playing, Britts corrected. “I
don’t know what else to say . . .”
Dhabalt: Richard, this is your opportunity to explain it because unfor-

tunately—
Britts: I have, man.
Dhabalt: . . . You haven’t quite explained it. I think it’s gonna nag at ya for
the rest of your lifetime if you can’t get to the point where we make some
kind of admission to the behavior. . . .
Britts: There is no admission. There’s nothing to admit to man. I really
wanna talk to my wife right now. Can ya’all just please bring her in here
for five minutes so I can talk to her?
Dhabalt: Well, when we get done. We’re almost done. We really are.
Britts then asked what was going to happen to him, “cause I don’t have
nothing else to tell you. I don’t.”
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The detective replied that the prosecutor would assess the case, noting that
Britt’s account and the medical evidence “don’t quite match up.” “The one
thing we know that doesn’t massage or blur up the truth,” he added, “is these
medical pictures that say this happened to Saniya and it happened right here.”
Britts was despondent. “If she dies, I want the death bed. I want, god
I wanna just die. . . . It’s like every time she has another seizure, I just pray she’s
having them because it’s in both sides of her family.”
Detective Dhabalt was quick to disabuse Britts of that notion. “It’s not,
it’s not,” he assured, adding, “This isn’t the first time I’ve been involved in
something like this, Richard.”
“I know it’s not man,” Britts retorted. “This is the first time I have though.”
Detective Dhabalt reminded Britts that doctors knew that Saniya’s injury
resulted from a “violent” or “rough” act.
“It’s still hard to digest,” Britts answered.
Finally, the interrogation came to an end, with an exchange that epito-
mizes the thrust of the entire session.
Dhabalt: Don’t be surprised then if they’re filing charges that you battered
a child.
Britts: I know man.
Dhabalt: Alright? Because I’m just, I’ve been as truthful as I can about this
whole issue. I . . . have not lied to you. I’ve been as blunt as I can but the
simple fact is we know that injury happened. We know it was a rough
injury and we know that it happened while the child is in your care. Those
are the, those are the, the certainties that we know. . . . Now, you’ve tried to
give a reasonable explanation and I will give you that it’s plausible but it’s
not the reason—
Britts: It’s just not matching up to the evidence you guys have. I know.
...
Dhabalt: The right thing is you know what happened—
Britts: I don’t man, I have nothing else to say about it.
But one last time, he declared: “I don’t know.”
Keny Medrano-Cambara
Keny Medrano-Cambara was the day care provider for sixteen-month-old
Brianna, the daughter of her husband’s cousin. In July 2010, the baby was
rushed to an Omaha hospital with severe neurological symptoms.38
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Confessions • 113
A few days later, police detectives first interviewed Medrano-Cambara

through a Spanish translator.39 She explained that, on the day in question,
Brianna’s mother, Adriana, dropped the baby off around 7:30 a.m. Later that
morning, Brianna ate cereal and milk and took her prescribed antibiotic. The
morning was spent watching cartoons with Medrano-Cambara’s four-year-old
daughter. Brianna fell asleep around noon. A half-hour later, she woke up
vomiting. For twenty minutes, Medrano-Cambara tried reaching Brianna’s
parents by phone, but no one answered. She then texted Adriana and asked
her to call because “the baby is sick, I don’t know what to do, she’s really cold.”
Adriana said she was scheduled to work until 2 p.m., but she would try to get
off work early. When the baby’s conditioned worsened, Medrano-Cambara
sent another text message. Adriana arrived home around 2:15 p.m. to find the
caregiver carrying Brianna in an effort to keep her warm. Medrano-Cambara,
who did not have a car of her own, advised Adriana to take the baby to the
emergency room.
During the first interview, the detective asked Medrano-Cambara why
Brianna was taking medicine. She explained that, the week before, the baby’s
neck seemed to be bothering her. She would follow an object with her eyes
rather than turn her head, and she would cry when her neck was touched.
Adriana took Brianna to the doctor, who prescribed an antibiotic for a lymph
node infection. After two days without improvement, the doctor apparently
prescribed a different medication.
Once Medrano-Cambara shared her recollection of the day, detectives
asked if they could see her cell phone to verify what she had described.
Medrano-Cambara complied and produced the text messages. After thank-
ing her for coming, the detective told Medrano-Cambara that she was free to
go, and they would call if they needed anything else. “Do you have any ques-
tions for us?” the caregiver was asked before leaving. Through the translator,
she expressed concern about whether she made a mistake by calling Adriana
and waiting for her to come home. As the translator relayed, “She says she
feels, that she doesn’t know how to take it because, did she do right by calling
her or she, she should call somebody to take her right away. Cause another
lady said you should have called me you know I would have taken you to
the doctor. But she thinks her responsibility was to call [Brianna’s] mom and
dad first.”
“OK, well that’s neither here nor there. I think if anything like that were to
ever happen again you should just call 911,” said the detective.
Medrano-Cambara explained that she didn’t act right away because she
didn’t realize it was so bad, and she was waiting to see if Adriana could get
07_9780199913633.indd 113 1/29/2014 1:46:37 PM

out of work early. She then again articulated doubts about whether she could
have done more to help. “She’s asking what, she, she just feels bad because
she didn’t, she was waiting on mom’s call and, maybe you know, she just
doesn’t know.”
“Hindsight is twenty-twenty,” remarked the detective before leading
Medrano-Cambara out of the stationhouse.
She was back a week later, and this time interrogated by a Spanish-speaking
officer, Sergeant Yanes.40 “I already know that you talked with other detec-
tives,” he began, but the investigation had evolved since the first interview,
and the doctors “found some things.” In particular, Sergeant Yanes told
Medrano-Cambara, “the doctors say that the girl died of a result of a, that
somebody did something to the girl . . . You are the only person that was
with the girl all day, and there is no other way, or there’s no other reason,
or other, it couldn’t nobody else could do something to the girl, but only
you . . . .”
He continued to describe what the medical evidence showed. “When a
person grabs a boy, or a girl . . . and they shake him, really hard, those, those,
ah, veins in the eyes that have the blood, they break.” Brianna wasn’t injured
in any other part of her body—just her head—and “with that it can be deter-
mined that it wasn’t an accident.”
Sergeant Yanes then suggested to Medrano-Cambara how this
non-accident might have happened.
You look like a normal person, OK, you are not a criminal, you’re not
a bad person . . . that’s evident. . . . But we know that many times people,
they get upset with the children, they get, they can’t control anymore,
that can’t, you know, like something happens in the body and the mind
of a person and they react like that, and that happened. OK, that is,
it’s normal OK. It’s not something inten—you know, didn’t have the
intentions to do something . . . but now we want to ask you, we want
you to explain how it happened that day, what happened, what did the
girl do so that you reacted in that, in that way, we want to hear your
story, you tell us what happened that day.
Medrano-Cambara seemed confused. “Aha, but, ah, that I would have hit
her? No, that’s not (unintelligible).”
Sergeant Yanes repeated the doctor’s assurance that this injury could only
have occurred that day, since the baby would seem “almost dead” if it hap-
pened earlier.
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Confessions • 115
Medrano-Cambara again seem puzzled, noting that no one else was in her
house that day, and she had never fallen asleep while caring for the baby. “Ok,
so then explain to me please, please Keny, how did this happen.”
“That’s what I don’t understand,” she replied. “I thought that the girl was
sick because they had brought her to me weeks before sick . . . she hadn’t been
well . . . Well, I have never hit a child . . . .”
Could the baby have fallen?
No, answered Medrano-Cambara.
“So then the only other explanation Keny [] is that you did this . . . It’s the
only explanation that we can believe Keny at this moment because there isn’t
another, there isn’t another way.”
The conversation then turned to God.
Yanes: Keny, you, you go to church?

Medrano-Cambara: Of course.
Yanes: You love God?
Medrano-Cambara: [inaudible]
Yanes: And you already know that God forgives you for everything.
Medrano-Cambara: I know.
...
Yanes: . . . But you have to ask for that forgiveness. If not, it doesn’t happen.
It’s not automatic that He forgives you. You have to ask for it.
Medrano-Cambara: Of course.
Yanes: So then I ask you Keny, have you asked for that, that forgivness?
About this child?
Medrano-Cambara: How can I ask for forgiveness for something
I didn’t do?
Yanes: That’s not, that’s not the question, the question is, you asked Him for
forgiveness, yes or no?
Medrano-Cambara: Well no, how am I gonna ask forgiveness, like I said,
for something that I didn’t, I didn’t even, I didn’t even know why the girl
was like that.
Sergeant Yanes then repeated his demand that Medrano-Cambara “try to

explain to me how this happened.”
“I don’t know,” she again insisted. “Not even the parents had told me why, what
the girl, had, they always told me that they didn’t know either what the girl had.”
“You had to have done it, Keny,” the sergeant maintained. He observed
that “sometimes when women are pregnant they can have depression,” but
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Medrano-Cambara (who was indeed pregnant) denied that this was a problem
for her. She was very patient with the children she cared for, even those more chal-
lenging than Brianna. Otherwise, she added, she wouldn’t be watching them.
Minutes later, Sergeant Yanes returned to the subject of what the doc-
tors knew. Brianna didn’t die accidentally. “Somebody did this to her. OK,
there is nothing else that we can say about that, OK we, we already know that,
the doctors already said . . . the doctors are . . . the ones that know the most.”
He reminded Medrano-Cambara of their earlier exchange about forgiveness.
“Now this girl Brianna died and there is nobody to say what happened, there’s
nobody to ask forgiveness, there’s nobody that can talk for her. But you can
talk . . . you can ask forgiveness . . . you were there, you were with the girl all
day . . . and you called the mother after this happened.”
Medrano-Cambara interrupted to correct him, “No, I called the mother
just as she started vomiting.”
Sergeant Yanes was adamant. “Okay, but a person vomits after somebody
injures him like that.” He suggested that Medrano-Cambara felt badly after
she shook the baby, and called for help. Some people, “really bad people,”
shake a baby and then leave her there “like a dog.” But “you are a good person,
you love your children, you love God . . . we can understand that it was an, an
error that happened rapidly.” This isn’t a “thing that . . . can’t be forgiven.”
Deploying proven minimization tactics, he told Medrano-Cambara why
she should confess:
“I’m not going to think bad of you.”
“I’m not going to get mad at you.”
“You are not a bad person, I can tell that.”
“You can also make a mistake.”
“You are a person like me, I’m good, I love my family very much, I love
God, but I can also make a mistake.”
“None of us are perfect.”
“God tells us that we are not perfect . . . we all make sins OK, but to not
say what happened Keny, to not say the truth, to not ask forgiveness, so then
I can’t continue to think good of you.”
“I want to know that it was an error, that you feel bad about what happened
and that you want to repent for what you did . . . that is what we all need.”
“Brianna’s family—”
“Brianna’s family is also my family,” Medrano-Cambara broke in. “I would
say it if I had done it.”
Sergeant Yanes emphasized once again that the doctors knew the baby
died from injuries to her head.
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Confessions • 117
“Yes but no, I didn’t, from me no,” was all Medrano-Cambara could mus-
ter in response. She later noted that, had she hit the baby or dropped her,
she would have told Adriana, “without knowing that the girl was going to
die, but no, that didn’t happen.” After a few minutes more, the sergeant left
Medrano-Cambara alone in the interrogation room momentarily.
When he returned, he had spoken with the lead investigator and asked
Medrano-Cambara to clarify her account in places. He then looped back to
her certain guilt. “Keny, I know you did this. You had to have done it. I want
to know how you did it. I want to know how many times you, you hit her, if
it was once, I think that it was one time, but I want to know if you, it’s more
than one time, and where you shake her, you shook her.”
“Here she is,” the sergeant said, displaying a picture of Brianna. “Already
dead, already at that time, already died in this picture.” He then asked
Medrano-Cambara to apologize to the deceased baby. “You can see her, you
can . . . you can tell her that no, you didn’t intend to do this to her.”
Even an innocent suspect might have confessed already, quite apart from
this latest maneuver. But Medrano-Cambara did not succumb to the force of
the interrogation. She also resisted the suggestion that she tell the baby (or
her photograph, as it were) that she had not intended to hurt her. “It’s that
I never did that to her,” Medrano-Cambara declared. “That is impossible.”
Sergeant Yanes posed an alternative: “did your husband do this?”
Medrano-Cambara noted that this, too, was impossible.
“Somebody did it, Keny, somebody did it,” the sergeant incanted. He then
asked Medrano-Cambara what she thought should happen to the person who
hurt a child like this. “A person like that I think has no forgiveness because
how can he injure a child.” Sergeant Yanes continued to intensify the pressure
with extreme maximization techniques. “They should . . . give him all his life
in jail, or should they kill him or what, what do you think?”
“I don’t know, the truth I don’t know,” Medrano-Cambara replied.
What would you do if someone did this to your child, the sergeant asked?
“To pay with jail,” answered the caregiver.
Sergeant Yanes upped the ante. “But in this country we have the penalty of
death. Here they can kill the people that kill other people.”
Having been all but promised salvation if she confessed to a momentary
lapse in judgment, Medrano-Cambara was now confronted with the threat
of capital punishment were she prosecuted for Brianna’s murder. With the
interrogation reaching a crescendo, the sergeant forced the suspect to actually
consider the prospect that she would be sentenced to death for a crime she
would not admit.
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Yanes: And if you are a judge in this country, in this state, you are, you are decid-
ing that this person dies or stays in jail all his life, you have two options, you can
give him life in jail or you can take the life of them, which one do you want?
Medrano-Cambara: Well to stay in jail because your life only God can
take away.
Yanes: Ok. And if you did this? We give you all your life in jail? Or do we
take your life?
Medrano-Cambara: I don’t know, well I didn’t do that.
Yanes: But if you did do it for example.
Medrano-Cambara: If I had done it well yes, if I had done it, yes . . .
Yanes: Which?
Medrano-Cambara: . . . each person has to have their punishment for
what they do.
Yanes: Jail or death?
Medrano-Cambara: No, well jail or death, whichever.
Yanes: I know that you did this Keny.
Medrano-Cambara: I didn’t . . . that is . . .
Yanes: I know that you also want to tell me.
Medrano-Cambara: No, how am I going to say something that no, I didn’t
do . . .
Yanes: Because you did . . .
Medrano-Cambara: I don’t know . . .
Yanes: Because you did it.
Medrano-Cambara: No.
Yanes: There wasn’t anybody else, you see, you are the only person there,
nobody else has the power to do this. . . . So then why did you do it Keny?
Medrano-Cambara: No, it’s that I didn’t do it.
Sergeant Yanes then made an excruciating appeal. Brianna is “not going to

see life again. She doesn’t have anybody to defend her, somebody to tell the
truth, nobody that can, to help her parent. But you can do it, Keny. You can
say the truth.”
At this moment, Medrano-Cambara seemed to take comfort in her reli-
gious faith, which may have enabled her to avow, still, her innocence. “Well
you know, like they say, only God is the only one that know the truth and He
know that I didn’t do it.”
Sergeant Yanes answered simply. “Nobody, nobody is going to believe you,
Keny.” He offered her one last “opportunity to say what happened” before he
left and could no longer speak to her. He submitted that Medrano-Cambara’s
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Confessions • 119
was just an unthinking act. Yet again, she told him she had done nothing
that could have injured the baby, not even accidentally. The sergeant told
Medrano-Cambara that they were almost done, and he left her alone in the
room for a second time.
When he returned, he asked whether she was familiar with “a machine
where they can, can determine if you’re telling the truth or not.”
She was.
“Are you willing to do that exam?”
“Yes of course.”
Before ending the session, Sergeant Yanes reiterated that Brianna was
surely shaken. “You didn’t shake her? Not even once? Because . . . to shake a
child, that explains the veins that, that broke on the eyes. When the heads
goes up, goes in, goes down, goes, goes back, and goes, goes forward, really
hard, it’s when the veins . . .”
Medrano-Cambara never wavered; she didn’t shake Brianna.
After acknowledging that, “this morning has lasted a long time already,”
Sergeant Yanes informed Medrano-Cambara that she was free to go, and
detectives would contact her soon about the “machine that doesn’t lie.”
Because she was pregnant, however, the test could not be administered.41
Medrano-Cambara delivered her baby two months later. By the time the
polygraph administration was scheduled, in November, the suspect was
advised by her lawyer not to submit to the test.42
In later testimony, Amber Schlote, the lead detective on the case,
acknowledged that if (hypothetically) Medrano-Cambara had taken the
test and failed, the police investigation would have “continued.” So, too, had
the suspect passed the test, the investigation would have “continued.” “No
matter what the answer was, it wasn’t going to make a difference to you?”
Medrano-Cambara’s lawyer asked the detective. “You were still going to
investigate the case, correct?” Detective Schlote agreed.43
But, when pushed, the detective acknowledged that there was no further
investigation. Having already spoken extensively to Doctor Suzanne H., the
pediatrician and child abuse specialist, Detective Schlote had the information
she needed. Doctor H. was confident that the shaking occurred during the
time that Medrano-Cambara had custody of the baby, and this belief dictated
the course of the investigation. Detective Schlote never bothered to verify the
parents’ versions of events or consider how their accounts might bear on the
baby’s later collapse, because, as the detective explained, “Brianna’s injuries
and the following symptoms were almost immediate.” What preceded the day
of the collapse “wasn’t my concern,” the detective admitted.44
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Later, in a pretrial deposition, Medrano-Cambara’s lawyer pressed

Detective Schlote on this understanding:
Q: Who told you [the symptoms] were almost immediate?

A: Doctor [H.]
Q: That was a medical conclusion, correct?
A: Correct.
Q: She wasn’t there?
A: Correct.
Q: You were just relying on [Doctor H.] to make the determination about
what things you were going to investigate and what things you weren’t
going to investigate?
A: No. I determined what I was going to investigate.
Q: Okay. So you determined . . . that you didn’t need to investigate more espe-
cially with regard to verifying Adriana’s statement . . . because [Doctor H.]
had told you that the symptoms would have been immediate? Have I got
that right?
A: Yes.45
Detective Schlote was asked to describe the entirety of her investigation.

She obtained cell phone records, which corroborated Medrano-Cambara’s
account of desperately trying to reach Adriana. She reviewed Brianna’s medi-
cal records. She attended the autopsy, along with Doctor H. And she spoke
with the doctors, mostly Doctor H. “That’s it?” asked defense counsel. “That’s
the extent of your investigation in this case?” Detective Schlote agreed.
Seven months after she was interrogated, Medrano-Cambara was arrested.
Based on the triad, she would stand trial for Brianna’s murder.
Abigail Tiscareno
Abigail Tiscareno is the Utah caregiver who was convicted of shaking a one-
year-old boy in her care, then granted a new trial, then acquitted upon the
discovery of evidence of old bleeding in the baby’s brain (Chapter 5). We have
already seen that the prosecutor relied in part on Tiscareno’s “confession” to
shaking. This is how it came about.
Police detectives first asked the suspect to describe the day that the baby,
Nathan, collapsed.46 Tiscareno explained that when she heard him “wimper-
ing” in his crib, she went to feed him a bottle, which he vomited. His eyes
then rolled back in his head and he began gasping for air. After trying to get a
response, Tiscareno called 911.
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Confessions • 121
Upon hearing this version of events, the detective (unidentified by name

in the transcript) explained: “We’ve been working on this case all day, talking
to the doctors at [the hospital]. We know that you’re responsible for this. We
know that. . . . [T]here’s only one thing that could have happened in this case,
the baby was shaken. The baby was shaken severely, the doctors at the hospital
have said so.”
This apparently unassailable knowledge of the suspect’s guilt would
anchor the next five hours of interrogation, which lasted until the morning
hours.47 Tiscareno was confronted with the utmost certainty that she had
violently shaken Nathan. At multiple points along the way, the detective
informed the suspect:
“[The doctors] know that, that’s a fact. That’s a fact, that the baby was shaken.
That’s a fact. The thing is now, I mean, you’re the only person there at the
time that the baby was shaken.”
“What you’re telling me is not possible.”
“There are things that can’t be explained in any other way.”
“It’s a medical fact.”
“What you’re saying doesn’t account for what happened today.”
For her part, Tiscareno kept insisting that she hadn’t shaken Nathan, and
that she didn’t know what happened to him:
“I never shake the baby.”

“I don’t know what happened. I never shake the baby, though.”
“I didn’t shake the baby, no. I didn’t shake the baby.”
In various incarnations, the following exchange repeated itself throughout

the interrogation:
Q: I just want you to listen. There are medical facts that say, there are doc-
tors at [the hospital] who have said this baby—this baby had trauma to
the head, shaken or falling or something like that. It happened during the
time, right near the time that you called 911.
A: Right. I don’t shake the baby.
Q: You have no explanation for (inaudible) there are medical facts
that say—
A: Yeah, but I never shake the baby.
Q: What happened then?
A: I don’t know.
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When Tiscareno attempted once again to recount the story of what hap-
pened that morning, she was informed, “Abby, I don’t want to hear that.
That’s not true.”
“I’m telling you the truth,” she replied, in a futile effort to move the con-
versation forward in some way. But to no avail—the detective was as con-
vinced of Tiscareno’s guilt as she was of her innocence; he did not relent.
In that interrogation room, the cycle of accusation/denial might well have
seemed endless:
A: You know what? I did not shake the baby.

Q: What you’re saying doesn’t account for what happened today.
A: Then I don’t know what happened. I did not shake the baby.
Q: But you were the only one there.
A: I was the only one there, but I did not shake the baby.
Q: Who did?
A: I don’t know. Nobody did.
Over and over again, the detective marshaled the medical evidence as
incontrovertible proof of guilt. “Abby, the doctors are able to say that the baby
was shaken.”
“How could that be if I did not shake the baby,” she inquired, apparently
perplexed.
The detective only reiterated what he had explained before: “Because it’s a
medical fact.” He asked Tiscareno if she “understands medical facts,” and she
indicated, yes, she understood—but she did not shake the baby.
Unlike others in her position, she refused to speculate about how the baby
was injured. “I don’t know,” she said. He didn’t fall. He wasn’t dropped. No
one else could have shaken him. From the caregiver’s perspective, there was no
ready explanation for what happened to the baby.
About a third of the way through a session that would have been unbear-
ably tedious were it not for what was at stake, the detective ratcheted up the
intensity:
Q: Something happened at your house today that you’re leaving out.

A: It’s nothing, nothing.
Q: It’s not nothing, it’s a baby that’s going to die tonight.
A: You know what—
Q: It’s a baby with his head split open to relieve the pressure off his
swelling brain.
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Confessions • 123
A: Nothing happened in my house. I call [911].

Q: Abby, it’s not true, okay? And I’m not going to sit here and listen to you
anymore. This happened at your house today.
...
A: I did not shake him.
Q: It’s time you sit there and stop lying to my face—
A: Why would I lie?
Q: —and tell the truth.
A: I’m telling you the truth.
...
Q: You cannot sit there and say nothing happened when there’s a baby lying
in a hospital in this condition and not say that that happened. . . . I just got
off the phone with the hospital.
Perhaps it was an accident, suggested the detective—a fall from the stairs
or the like.
There was no accident, Tiscareno averred.
They went back over that morning again, in even greater detail. The detec-
tive then returned to the problem at hand. “Obviously I’m not a doctor. What
we’re being told by the doctors is this boy sustained a very severe head injury.”
“Yeah, that’s what they told me,” added Tiscareno, who must have recog-
nized that the detective was being honest with her on this point.
The doctors also knew that the injury could not have happened before
the baby was delivered to Tiscareno’s care, noted the detective. And then, in a
moment of both truth and fiction, he added, “I’m not saying you’re a liar, I’m
not saying anything at all. I just—I’m not a doctor, I’m a policeman.” He had
captured a paradox of medically diagnosed crime.
Hours into the interrogation, Tiscareno raised the possibility that her
efforts to revive Nathan may have caused his injuries. Though the caregiver’s
first mention of this idea was inaudible, we can surmise its content from the
detective’s response: “So if—probably when he got hurt was when you were
trying to help him?”
The questioning continued:
Q: Do you feel comfortable that’s when it happened?

A: I don’t know when—(inaudible) I was trying to help him.
Q: And we’ve sat here awhile and thought about it, and that’s what you’re
thinking, you were trying to help him, Nathan, are you okay, that that’s
probably when it happened?
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A: (Inaudible).
Q: I mean, it couldn’t have happened any earlier in the day?
A: No (inaudible). I just, Nathan, Nathan (inaudible).
...
Q: Anything else you can think of that’s a possibility?
A: I went like this, Nathan, Nathan, are you okay?
Q: I think just from your statement here, I think that you think that’s prob-
ably when you think that happened.
A: Yeah.
Q: All right.
Shortly thereafter, Tiscareno asked, “can I go?”

The detective did not answer but offered, “I’ll just let you sit here for a
minute. I’ve got to go down into another room.”
He returned with a baby doll. “One more thing,” he said, “Just walk
through what you did.”
Tiscareno did so again, this time using the doll to show how, when she
found Nathan unresponsive, she called his name while gently moving him
back and forth. The detective then left the room, and a new officer appeared.
“I just got back from the hospital,” this new detective told Tiscareno. “I
asked them to keep you here for awhile so I could get a chance to talk to you.
Here’s the deal.” He proceeded to recount what he learned from the doctors,
including “a specialist down there who deals with child abuse”—most impor-
tant, that the baby’s symptoms would have “happened immediately after,
right after the baby was shaken.” Accordingly, “the only question at this point,
Abby, is whether or not you had an accident or if you committed a murder.”
During the next phase of the interrogation, the detective expanded on
both the minimized and the maximized versions of events:
Abby, do you want—I mean, I don’t want—you don’t want people

thinking you’re a monster or a murderer or anything else, but at the
same time you denying and not coming full forward with the truth
and what actually happened, that’s the only option you leave me,
that’s the only option you leave the other detectives and that’s the
only option you leave for anybody is to think that about you. Do you
understand that?
...
We need the truth so we know whether we’re dealing with a murder
or somebody who had an accident so they can get on with their life.
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Confessions • 125
I mean, I have accidents, we all have accidents, okay? Being murder-

ers makes us bad people, but having accidents does not make us a bad
person, all right?
...
But if something happened in this house, okay which we all believe
did, okay believe me, everybody believes what happened. We know
what happened in our minds is that—we don’t know exactly what hap-
pened, but we know that the baby was shaken in your house okay?
...
We know the baby got his injury in your house. Now, if that’s acci-
dental, if that comes out of frustration, out of fear or whatever it is,
okay, that’s different than picking up a kid and shaking it and saying
you little—you know, and that’s different, okay? But like I say, if it’s an
accident it’s an accident. And you need to decide at some point, Abby.
You need to decide at some point whether you’re going to tell the truth
or not because I don’t believe you are.
This detective, like the first, emphasized that Tiscareno’s denials were
completely implausible given the experts’ diagnosis. The doctors were cred-
ible and certain, which left no room for a different perspective, particularly
a nonmedical one. “I don’t want to hear, Abby, I don’t want to hear you try
to tell me things,” the detective explained. “I know what’s going on. There
is information from people, doctors, that go to school for a long time to be
doctors. And look at injuries and know what happened and they know how
things work.” The medical determination of guilt was afforded full deference.
As a corollary, Tiscareno’s competing account could only be dismissed as that
of a liar and killer.
“Tell me what happened, Abby,” the detective later asked. “Tell me you’re
not a murderer.”
“I’m not a murderer, I’m not.”
“Then tell me what happened because what you’re saying isn’t right.”
This was the last time Tiscareno told her story to the police. After Nathan
choked and gasped for air, she shook him while calling his name. The detec-
tive said he believed that this was an “accident,” and asked, “do you think that
maybe when you shook him—I mean, it scared you too, and you were scared
and maybe shook him a little harder than, oh Nathan, wake up?”
“Oh yeah,” Tiscareno replied.
“You were trying to save his life?”
“Yeah, I was trying to save his life.”
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“So you were shaking him hard, right?”

“Right.”
Finally the detective stopped. “Okay,” he said, “That’s what I thought. And
that’s what we thought.”
Oddly, though the detective seemed to think that this was a confession,
Tiscareno continued to explain that she had done everything she could to
help Nathan breathe when she found him limp. “I was trying so hard to save
him. I was going, Nathan, please, come on. He doesn’t talk, but I was say-
ing please.” Though she had worked in a pediatrician’s office for five years,
Tiscareno had never experienced anything like this. “I just was trying so hard
to save him but he was choking. I mean, I don’t know what he had, but he
was going—I mean, oh my God, oh my God, what can I do to save this baby.”
“I guess you did what you thought you could do,” suggested the detective.
“And unfortunately that wasn’t the right thing.”
“Tell me what should I do, just leave him there and die? Because he was
not breathing.”
The detective told Tiscareno that she could go home, and that investiga-
tors would await the doctors’ written reports. That baby was not doing well,
the caregiver was informed, and he would likely die. Tiscareno began to cry.
Days later, she would be arrested and charged with violently shaking Nathan,
who lived. Her account, according to the state’s experts, could not possibly
be true.
Even before she was arrested and charged, as her interrogation drew to a
close, the detective shared an insight. “Sometimes bad things happen to good
people, Abby. Okay? You remember that.”
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7 FLUKY JUSTICE
As understandings of the triad have evolved, so too has the criminal

justice system’s response to SBS begun to shift. Greater skepticism
can be discerned in the charging decisions of prosecutors, the ver-
dicts of juries, and the rulings of judges. Not long ago, these deter-
minations were virtually preordained; now they are not. Yet doubts
about the meaning of the triad by no means manifest themselves
uniformly. Instead, similar fact patterns result in wildly disparate
outcomes, from non-prosecution to lifelong incarceration. As
our criminal justice system struggles to integrate the latest think-
ing about SBS, justice is distributed unevenly, sporadically, and
in rather chaotic fashion. In predictable ways, certain factors—
resources, in particular—exacerbate the injustice of fluky justice.
Until a new equilibrium is reached, innocent caregivers who are
suspected of shaking but manage to avoid lengthy incarceration can
count themselves fortunate. But this is true only as a relative mat-
ter, given what many suffer: legally imposed separations from their
young children; huge financial losses; unimaginable shame and
stigma; the dissolution of familial relationships and friendships;
forced career endings; and the emotional burdens associated with
the prospect of a far worse resolution. These are the costs borne by
those for whom it might be said the system worked.
For others—those whose faulty convictions have resulted in
years of incarceration—it may be difficult to celebrate an overall
systemic movement in the direction of doubt. The wrongly accused
can hope mistakes will be corrected in relatively short order. They
must also realize that, in the best case scenario, the lives they will
return to will be greatly diminished. For many, the worst to con-
template is that, even if freedom comes early, they will have missed
their children’s childhood.
Jennifer Del Prete, the Illinois caregiver whose trial and convic-
tion were described earlier (chapter 1), faced a minimum prison
term of twenty years. At the time of sentencing, her son was eight
and her daughter sixteen, and she had already been incarcerated for
years of their lives.
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At her sentencing hearing, Del Prete spoke to the judge who convicted her:
I know my children need me. I know I am innocent. I know the truth

will some day set me free. . . . [Y]our Honor, I ask you—I don’t even
know how to ask you for 20 to 60 years because when you took me
away from my children my heart died. I don’t know how to ask you for
the minimum. I don’t know how to. I don’t know how to decipher that
and pick that out. I ask you to use everything you have heard about me
in making your decision. My son would be 28 years old if I got 20. My
daughter would be 36. They were my whole life.1
To say that the system is in flux—that it may well be inching toward more
rational treatment of like facts—is hardly to commend our way of doing jus-
tice. Del Prete was sentenced to twenty years in prison. Outcome aside, her
case, like those of many imprisoned caregivers and parents, closely resembles
cases that end entirely differently: in acquittal, in prosecutorial dismissal, and
without an arrest. All of these cases feature much the same medical evidence,
along with the equally certain testimony of doctors that the triad proves the
defendant’s guilt.
Acquittals
Not guilty verdicts in triad-based SBS prosecutions are still exceptions to the
rule, but in recent years they have become more common. Quantifying the
acquittal rate is not yet possible.2 But a survey of media accounts of SBS trials
over the past five years suggests a trend toward greater doubt on the part of
both juries and judges sitting as triers of fact. Given that many defendants sus-
pected of abusing babies are detained in jail pending trial, a not guilty verdict
often means a return to freedom.
Consider a representative sample of acquittals.
Kelly Kline, an Ohio woman with three young children of her own, was
charged in September 2012 with killing a fifteen-month-old child in her care.
Facing fifteen years to life in prison if convicted, Kline proceeded to trial,
where the state presented two experts. One, a child abuse specialist, Doctor
Richard S., testified that the triad of symptoms, which in this case included
“massive amounts” of retinal bleeding and tearing, occurs only when a baby
is violently shaken. Doctor S. emphasized that symptoms resulting from this
trauma would be “immediate,” rejecting as “ridiculous” the defense claim that
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Fluky Justice • 129
a fall down a short flight of stairs six days prior could have contributed to
the child’s death. “That just doesn’t happen,” insisted Doctor S. (The child’s
mother testified that, two days after the child had fallen down the stairs, she
vomited repeatedly.)3
As to the cause of death, the final autopsy report indicated not shaking,
but blunt force trauma—a change from the preliminary report, which specifi-
cally mentioned SBS. Notwithstanding this revision, the medical examiner
stated that she agreed with Doctor S.: it was not possible that a gradual swell-
ing of the brain could follow a fall down the stairs.4
The defense expert, Doctor John P., a pathologist and expert in short falls,
disagreed. Although he did not claim to know for certain what happened,
he testified that the child’s fall could indeed have caused a slow bleed on the
brain.5
In closing argument, the defense attorney referred to the caregiver on
trial as the unfortunate one who happened to be the last adult left caring
for a dying child. “Sometimes bad things happen and no one is to blame,”
defense counsel reminded jurors. He added, what happened to the baby “is
tragic . . . what has happened to Kelly Kline is a disgrace. . . . She is not guilty.
Kelly Kline is innocent.”6
Kline was acquitted.7
In April 2012, Damien Marsden was tried for murdering his four-month-old
son in a small town in northwestern Minnesota. The state’s case rested on the
testimony of a number of doctors—primarily a child abuse specialist, who
insisted that the triad of symptoms was consistent with a rotational injury,
and that it could not have resulted from earlier accidental falls.8
The defense presented a forensic pathologist who testified that the baby’s
death was caused by a re-bleed of old hemorrhages that were observed on CT
scan. The expert found the radiological evidence consistent with reports of
two earlier falls, both considered minor at the time: one witnessed by the
defendant and one by another family member.9 The defendant took the stand
and reiterated that, on the day in question, he found his baby lying in the crib
in critical condition.10
After a two-week trial, the jury took less than four hours to acquit.
Marsden, who was facing forty years in prison, returned to his fiancé and
sixteen-month-old son.11
Cheryl McAdoo Alston, a Hillsborough, North Carolina, day care pro-

vider, was charged with abusing a five-month-old baby in her care, causing
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permanent neurological damage. At her trial in 2011, the state offered numer-
ous medical experts to testify that the pattern of bleeding in the brain proved
abuse, and there was no possibility of a lucid interval.12
The defense conceded that no one knew what happened to the child.
Though a number of factors might have contributed to his rapid neurological
deterioration on the day in question (an upper respiratory infection weeks
earlier, a roll off the bed onto carpet, and an incident involving the car seat
slipping from a parent’s hand), the defense did not offer a unified theory of
innocence. Rather, by noting the various possibilities and arguing that doc-
tors too readily defaulted to abuse, the defense endeavored to create reason-
able doubt.13
The jury found McAdoo not guilty.14
Tenesia Brown, a Florida nursing assistant, faced life in prison for shaking
to death her fourteen-month-old foster son. On the day in question, Brown
brought the boy home early from day care after receiving a call that he was
vomiting and had diarrhea. Shortly thereafter, he stopped breathing.15
Brown was tried in 2010. The state’s case rested on the testimony of the
director of the hospital’s child protection team, who explained that subdu-
ral and retinal hemorrhages were the classic signs of shaking, which was now
referred to as AHT. As the prosecutor summarized the theory of guilt, “The
defendant was alone with the victim for the last twenty-nine minutes of his
life. The fact is, when he got to the hospital, he was nonresponsive, he was in
cardiac arrest and he had a subdural hemorrhage. . . . She killed him.”16
Experts for the defense questioned the science underlying the triad-based
diagnosis.17
The jury took less than two hours to acquit Brown, who had spent four
years confronting the likelihood of life behind bars.18
Deborah Parlock, a fifty six-year-old woman from northwest Indiana, was

charged in 2008 with the death of a six-month-old boy in her care. When
doctors found subdural bleeding and bilateral retinal hemorrhages, they con-
cluded that the baby had been shaken immediately before his collapse. Three
years later, at Parlock’s trial, the prosecutor emphasized that its theory of guilt
“[came] down to medical testimony” and pointed to the unanimous agree-
ment of its experts that the triad of symptoms necessarily meant abuse.19
The defense presented its own experts, who noted that before the child
was ever left with the caregiver, he was not well. His symptoms—lethargy and
vomiting—might have been signs that the baby’s brain contained excess fluid,
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which contributed to his death. The defense argued that doctors arrived at
the SBS diagnosis without adequately considering the infant’s medical his-
tory, which included unusually rapid head growth and acid reflux. “There
was something going wrong with this little guy,” the defense attorney told the
jury.20
Parlock—who had no idea what happened to the baby—was acquitted in
two hours.21
Jeanne Daniel, an Atlanta day care provider, was charged in 2007 with felony
assault on a six-month-old baby in her care. The state alleged that Daniel had
shaken the infant with such force that he suffered permanent brain damage
and blindness. The state’s witnesses included eleven doctors in all, including
the child abuse specialist who directed the medical investigation. Through
these witnesses, the state introduced a computerized animation showing how
shaking causes the triad, along with an in-court demonstration of the shaking
of a doll. Despite the fact that blood of varying ages was found on a radiologi-
cal exam, the state’s experts testified to their certainty that the triad of symp-
toms proved Daniel’s guilt.22
In stark contrast, doctors presented by the defense (five total) attached
great significance to the old bleeding, which was likely the result of birth
trauma. This theory was also consistent with a disproportionate increase in
the baby’s head size and his fussiness and irritability. In short, the baby’s brain
was already impaired when the child was left with Daniel. Even if the state’s
doctors were confident that the older blood was not relevant, the defense
made it central to the case.23
The jury deliberated over three days before finding the defendant not
guilty.24
Mazna Baraz, a fifty-nine-year-old Illinois woman, was tried in 2003 for the
death of a fifteen-month-old in her care. The state’s experts testified that the
baby’s injuries were suffered immediately before she lost consciousness. One
pediatric radiologist who did not treat the child testified that she would have
collapsed “very shortly, possibly within seconds” after she was abused. “I
believe the child was shaken and some blunt trauma occurred all in one epi-
sode,” the doctor surmised. Though scans showed older bleeding, the state’s
experts insisted that it was unrelated to the baby’s death.25
After hearing defense experts testify that the injury could have occurred
well before the child was delivered to Baraz, the judge (sitting as trier of fact)
announced simply: “The state has failed to meet its burden of proof.”26
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Jennifer Campbell, an Ohio woman with a baby of her own, was tried in
October 2012 for the murder of a five-month-old who collapsed in her
arms. The prosecution was premised on the notion that the baby suf-
fered from SBS, which the defense aggressively contested. Campbell’s
lawyers argued that the treating doctors rushed to judgment in the case
without considering alternative causes of the baby’s symptoms. The idea
that the state’s experts had too quickly foreclosed a searching inquiry into
the baby’s condition was critical to the defense. The burden of proving
Campbell’s guilt beyond a reasonable doubt was the state’s, after all, not
the other way around. Even so, the prosecutor seized on the absence of a
known alternate cause of death, suggesting that, “their whole defense is
about possibilities.”27
One real possibility was that the baby suffered from a bleeding disor-
der. Doctors did not conduct the tests necessary to eliminate this prospect,
according to the director of child abuse pediatrics at a New York medical
school, who testified for the defense. “I cannot sit here and tell you this is
child abuse,” the expert—a child abuse pediatrician—told the jury. She also
explained that the medical evidence could not support a conclusion regard-
ing the timing of trauma, if indeed trauma had occurred.28
Notwithstanding evidence of the baby’s recent illness and some concern-
ing indications of a problem, prosecution experts remained convinced that
the “clear cut” medical evidence proved Campbell’s guilt. The state’s doctors
testified that the triad meant the baby was shaken with such force that her
collapse could only have been immediate.29
This certainty was hardly warranted, according to the defense attorney.
“In the end, this case is about arrogance,” he told the jury. And Campbell was
acquitted.30
Finally, there is Andre Martin, a central Georgia man, who remains in limbo
after a mistrial was declared in his case. (The state has neither dismissed the
charge nor indicated that it will retry him.) Martin was accused of shaking
to death his six-week-old daughter, and faced life in prison. The prosecution
rested entirely on the triad.31
But, at his 2011 trial, the defendant presented expert testimony that the
infant had a respiratory infection that turned into pneumonia, creating a
blood-clotting problem that led to the baby’s death. If this were the case, the
infant’s symptoms, including retinal hemorrhages, would “mimic” classic
SBS. According to a pathologist called by the defense, “if you piece the puzzle
together, it makes sense.”32
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Although the state medical examiner found evidence of pneumonia, the

cause of death was determined to be cerebral trauma. The state maintained
that doctors were thus correct in their original assessment that the injuries
were caused by shaking. “There was no witch hunt. No rush to judgment,”
argued the prosecutor on summation.33
After deliberating for a second day, the jurors remained divided: the
vote was 9–3 to acquit the father of murder. Since a unanimous verdict was
required, the judge declared a mistrial and granted the defense motion to
allow Martin to return home to his wife and their four-year-old son.34
These cases have in common a characteristic feature of SBS prosecutions:

dependence on the testimony of physicians regarding the triad in order to prove
guilt. In this respect, the acquittal cases are no different than the conviction
cases. Along other dimensions—those related to the defense case, rather than
the state’s—the acquittals vary quite markedly: some defendants testify at trial,
others do not; some waive the right to a jury trial, others do not; some offer
alternative theories of death based on natural causes, others suggest that a trau-
matic injury might have occurred prior to the defendant’s care of the child; some
are tried for murder, others for causing permanent impairment; most are day
care providers, fathers or stepfathers, though some are mothers or other relatives.
With rare exception, cases in the not guilty category feature testimony by
one or more defense experts. What these experts usually offer is an alternative
explanation for the baby’s collapse, one that does not implicate the defendant.
In some cases, this testimony refutes the state’s experts’ view of the irrelevance
of earlier bleeding or other indicia of problems. In other cases, the jury learns
for the first time from the defendant’s expert that the child was not well when
delivered to the caregiver.
Either way, defense attorneys with experience handling SBS cases have
remarked that once a doctor looks carefully at the medical records, real ques-
tions arise. Doctors who have been asked by the defense to review the medi-
cal records of babies diagnosed with SBS often seem to share this insight.
Physicians consulted repeatedly tend to see a pattern of sick babies—some
with diagnosed conditions, others with undiagnosed conditions—presenting
with the triad. As Doctor Guthkelch remarked in 2012, “Every single case
that I have been asked to review in the last few years has had some sort of
unrelated (unrelated to shaking, that is) illness, congenital anomalies, sei-
zures since birth, recurrent otitis media [middle ear infection], etc. . . . What is
being regarded as ‘plainly’ SBS . . . is a rag-bag of pathologies in which trauma
is not (in my experience) prominent.”35
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The “rag-bag of pathologies” may be more or less definitive, depending

on the case. At times, the alternative cause (or causes) identified by a defense
expert simply casts doubt on the prosecutor’s version of events. On other
occasions, even though the defendant does not have the burden of prov-
ing innocence, one possibility emerges as exceedingly likely. In these cases,
the very fact that the prosecution chose to proceed at all is striking. Given
the state’s burden of proving guilt beyond a reasonable doubt, and the total
dependence of SBS prosecutions on expert testimony, even a prosecutor who
happens to believe in a caregiver’s guilt might balk at pressing charges in the
face of a plausible alternative explanation for a baby’s collapse. A growing rate
of acquittals and, with it, the realization that triad-only cases are no longer
airtight, may well affect this calculus.
Apart from expert testimony, a fundamental characteristic of the acquittal
cases is the skill level of the defense attorney, which is competent at a mini-
mum, and more often exceptionally high. These latter two factors (an alterna-
tive theory of causation and quality representation) stand out as correlates
of not guilty verdicts. Indeed, it may fairly be said that without competent
counsel and experts, an SBS defendant is doomed.
Even so, it is important to recognize that these same correlates are often
present in cases that result in conviction. Put differently, while a defense
requires both competent legal counsel and capable medical expertise for an
acquittal, in more cases than not, this combination does not translate into
a not guilty verdict. Once SBS cases reach court, the justice meted out is
erratic.
Defendants who ultimately prevail in triad-only prosecutions must con-

tend at trial with medical evidence that normally results in a conviction;
on their facts, many of the acquittals are textbook SBS cases. Doctors who
testify for the prosecution are convinced of guilt. Indeed they are routinely
emphatic: all other alternatives have been ruled out; the baby’s neurologi-
cal symptoms could not have been caused by anything other than abuse;
and the child would have collapsed immediately upon injury, eliminat-
ing the possibility of an earlier trauma, natural disease process, or some
combination.
A closer look at SBS acquittals reveals that trials where the state’s proof is
found wanting are functionally indistinguishable in important respects from
those resulting in conviction. Yet standard claims made on behalf of the triad
do—sometimes—leave jurors with reasonable doubts as to guilt.
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Medrano-Cambara
In many ways, the case of Keny Medrano-Cambara was typical. Medrano-
Cambara—whose interrogation we explored earlier (chapter 6)—was the
mother of a four-year-old and the caregiver of sixteen-month-old Brianna,
a cousin’s daughter. In July 2010, the baby was rushed to the hospital.
Medrano-Cambara reported that the baby had been vomiting.36
When Brianna was transferred to a children’s hospital in Omaha, no exter-
nal injuries were present, but a CT scan showed brain swelling. Subsequent
examination by an ophthalmologist found bilateral retinal hemorrhaging,
and doctors diagnosed SBS. Police were notified that the baby had been
shaken just before losing consciousness. Medrano-Cambara, who was seven
months pregnant at the time, became the only suspect.37
Police focused their investigation on what occurred at the caregiver’s
home. As the detective explained, “because Brianna’s injures and the follow-
ing symptoms were almost immediate [i]t wasn’t my concern at that point
what had happened” in the days prior.38
Recall that Medrano-Cambara’s story remained the same throughout
the interrogation. She repeatedly insisted that she had done nothing wrong,
and she could not explain the baby’s collapse. When an autopsy was per-
formed days later, the cause of death was reported as blunt force trauma.
Medrano-Cambara was arrested and charged with murder based on the triad.
As the prosecutor at trial characterized the proof of Medrano-Cambara’s
guilt, “[w]hat tells you what happened is the medical evidence. And the doc-
tors in this case said this little girl was murdered.”39
In reality, the conclusion of Doctor Blaine R., the forensic pathologist who
performed the autopsy, was considerably more equivocal.40 Still, the prosecu-
tion called Doctor R. as a witness. If a child is shaken, Doctor R. acknowl-
edged, there are commonly “bruises on the thorax, the chest, or upper
shoulders, many times fractures of the ribs on the anterior surface, bruises on
the forearms, depending [on] how the child’s being held.” Brianna had none
of these injuries. Doctor R. conceded, moreover, that what he observed was
consistent with a fall, and that an autopsy alone could not determine whether
the injury was accidental or otherwise. In the pathologist’s words, “I cannot
tell you the circumstances that led up to the death.”41
Doctor R. also explained that a child can sustain an injury that does not
manifest for some time. During this period of lucidity, there might well be
symptoms of slow neurological decline—such as the vomiting that occurred
in Brianna’s case—while the baby remains fully conscious. Subdural bleeding
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can independently cause retinal hemorrhage while increasing intracranial

pressure, leading to brain swelling that can ultimately end respiratory and car-
diac functioning. Regarding the facts of this case, a prior fall from a short dis-
tance could well have explained what the pathologist referred to as Brianna’s
“progression of symptomatology.”42
Doctor R. never claimed to be sure of what happened to Brianna, and he
minimized the diagnostic worth of the triad. When asked, “do you subscribe
to that theory that based on those three medical findings alone you can make
a determination that a child was shaken,” Doctor R. replied, “no.” He later
emphasized that “the characteristic of the bleeding cannot be used to deter-
mine the ultimate cause [of death],” and indicated that his understanding of
the triad was “true within a reasonable degree of medical certainty in the field
of forensic pathology.”43
Doctor Thomas H., the state’s ophthalmologist, viewed the triad—in par-
ticular, retinal hemorrhages—quite differently. Called to consult on Brianna’s
case due to “suspected traumatic brain trauma,” Doctor H. observed bleeding
in the retinas of both eyes. He described the hemorrhages at the time as “mul-
tiple” and later added that they were “too numerous to count.” These findings,
according to Doctor H.’s testimony, were “caused by nothing else than the
Shaken Baby Syndrome, which is forces to the baby which produced those
findings, where there’s severe acceleration and deceleration of forces from the
shaking which may also involve blunt trauma to the head.”44
Doctor H. characterized what he saw as a “pattern [of retinal hemor-
rhages] most commonly associated with Shaken Baby Syndrome”—“they’re
of different sizes, different shapes, different—and in just a variable, not
any consistent pattern.” Because he had “never seen any pattern like this in
any infant that is caused by anything else,” Doctor H. concluded that “this
is—basically this is pathognomonic for that, possibly with other severe head
trauma associated with it, but certainly with the shaking as part of it.” While
certain that shaking was “part of it,” Doctor H. could not actually explain
how these retinal hemorrhages were caused. He did, however, emphasize that
apart from the triad, “typically there are not other signs of shaking.” Abuse
was the only “plausible explanation for the findings,” regardless of whether
the baby’s medical history was accurate as provided.45
Apart from Doctors Blaine R. and Thomas H., the prosecution presented
the testimony of Doctor Suzanne H., a pediatrician and director of the hospi-
tal’s multidisciplinary child abuse team. The pediatrician provided a familiar
narrative: Brianna’s massive brain injury could only have been caused by a
car crash, a multistory fall, or abuse, and there was no possibility of a lucid
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interval. As the prosecutor stated in closing argument, Doctor Suzanne

H.’s testimony established that “it had to be the defendant. There’s no other
explanation.”46
The defense, by contrast, acknowledged uncertainty. “This is an unde-
termined death,” maintained Medrano-Cambara’s lawyer. “If you have intel-
lectual honesty in this case, that’s exactly what we have here.” There were,
however, a few knowns, according to the defense attorney: Brianna was not
well when she was dropped at Medrano-Cambara’s house that morning, and
the caregiver had done nothing whatsoever to harm the child.47
The defense presented the testimony of two pathologists, who cited
various factors that might have contributed in combination to the baby’s
death: pneumonia, venous thrombosis, a short fall, asphyxiation with vomit.
But none of these causes was adequately considered by the treating physi-
cians, according to the defense, “because once you have bilateral retinal hem-
orrhages, nothing else matters.” On summation, defense counsel emphasized
that he did not have to prove what happened to Brianna. Although the “most
likely explanation” involved an earlier fall and a lucid interval, the defense
attorney reminded the court that it did not have to agree: because there was
no proof of Medrano-Cambara’s guilt, much less proof beyond a reasonable
doubt, she should be acquitted.48
The case was tried before a judge, rather than a jury, and an interesting
colloquy took place before a verdict was rendered. When the state argued
on summation that the medical testimony proved this was not an acci-
dent, the judge inquired, “how did it happen?” The prosecutor answered,
“It happened at the defendant’s house.” The court asked again, “but how
did it happen?” The response: “The state’s contention is that she slammed
this child’s head on the floor, causing the contrecoup, the acceleration, the
deceleration, which gives us retinal hemorrhages, which gives us the blunt
force trauma.”49
The judge then reminded the prosecutor of Doctor R.’s testimony that
he does not “espouse or accept the triad theory” (as the judge put it). This
exchange followed:
PROSECUTOR: I don’t know where the triad theory comes in this case except
for the defense asked questions. We never asked any of that.
THE COURT: [Doctor Suzanne H.] talked about it.
PROSECUTOR: On questioning by defense.
THE COURT: But she was your witness. I’m just wondering, does that con-
cern you that he [Doctor R.] doesn’t buy into it?
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PROSECUTOR: No. No, the triad theory is what was used and is no longer
really used in the medical community of shaken baby because the shak-
ing does not kill them. In this case we have blunt force trauma that killed
Brianna Medrano. . . . The triad theory goes to shaken baby. That’s not
what we have in this case. Blunt force trauma. The impact caused by the
defendant hitting the child’s head against something.50
The triad recast in this manner—as proof that the defendant (seven months
pregnant at the time) “slammed the [one-and-a-half-year-old] child’s head on
the floor,”51 or “against something”52—is of course the very same triad that has
been used, and continues to be used in trials across the country, to prove that
a child was shaken. The case against Medrano-Cambara mostly adhered to the
conventional script, with the notable exception of the state’s autopsy patholo-
gist. The prosecution experts asserted a pathognomic relationship between
retinal bleeding and severe head trauma (shaking in particular, according to
the ophthalmologist). And the prospect of a lucid interval was dismissed as
impossible, which meant that only the defendant could have been responsible.
But in this case, the defendant was found not guilty. She had been incarcer-
ated for over a year, separated from her four-year-old and from her newborn.
Even after she was acquitted, Medrano-Cambara, who is from Guatemala,
was detained on an immigration hold that was lodged upon her arrest. Several
months later, she was finally freed.53
Richard Britts
Three-month-old Saniya was brought to a Springfield, Illinois, emergency
room by her parents in early 2010. Her father, Richard Britts, was quickly
suspected of abuse (chapter 6). Britts explained to police that when he heard
a “nerve rattling gasp”54 from the baby’s crib, he quickly responded, discover-
ing her limp and unresponsive. Radiological scans revealed massive bleeding
on the brain.55
Britts, who worked for a company providing elder care, was soon charged
with aggravated battery to a child. The case against him rested largely on the
testimony of Doctor Channing P., the director of the hospital’s Pediatric
Resource Center. Doctor P., who estimated that 80 percent of her prac-
tice involved child abuse and neglect, was asked to consult on Saniya’s case
when the baby first arrived. Doctor P. saw no external signs of trauma. She
learned that there was a significant family history of seizures (paternal grand-
mother, paternal uncle, and maternal grandmother), and that Saniya had also
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experienced seizures at a young age. The doctor also learned that the infant
bruised easily. Even without the benefit of a pediatric ophthalmology exam
(which would come only later, and show that there was no retinal hemor-
rhaging), Doctor P. formed a conclusion based on the swelling and bleeding
around the infant’s brain.56
At Britt’s trial, the prosecutor elicited the pediatrician’s opinion:
Q: Now, during your treatment of the infant, did you find any evidence either
in the medical history or in the medical tests that she had a preexisting
brain condition that contributed to the subdural hematoma?
A: No, I did not.
Q: Isn’t it a fact that an authority of medical opinions is that a subdural hema-
toma is a sign of inflicted trauma?
A: There are a few medical conditions that can cause it, but we did not find—
I did not find any evidence for any of those in Saniya, and in looking at the
medical literature, without those medical conditions present, then yes, the
majority of those subdural hematomas would be caused by trauma.
Q: Did you, with a reasonable degree of medical certainty, what—did you
form an opinion as to the cause of these injuries?
A: My opinion was that her head injury was consistent with abusive head
trauma.
Q: And abusive head trauma can be various different types of trauma, is that
correct?
A: Yes.
Q: And in this case there was no evidence of any trauma inflicted on the
skull—on the face or scalp region, is that correct?
A: Not that I can see.57
At this point, the direct examination of the state’s main expert was over.
The jury had summarily learned that Doctor P. found no evidence of the “few
medical conditions” that can cause subdural hematomas, though she did not
testify to her understanding of what these conditions are or how she looked
for them. Since, absent these “few medical conditions,” more than half of sub-
durals (in the doctor’s parlance, a “majority”) are caused by trauma of some
sort, Saniya’s head injury was deemed “consistent with abusive head trauma.”58
Once the medical investigation concluded, Doctor P. informed the police
that the evidence established guilt. In a written report, Detective Dhabalt,
the interrogating officer, summarized the contents of his phone call with the
doctor. According to this report, Doctor P. shared her conclusion that the
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baby specifically had been shaken (in contrast to what would later become
her less precise trial testimony), and that there could be no lucid interval. Her
explanation confirmed the detective’s understanding (from his “experience
and training”) of SBS: “any ‘subdural hemorrhage’ in a child this age, absent
a plausible explanation to an accident, is a classic finding in ‘shaken baby syn-
drome.’ ” Doctor P. explained that “the ophthalmology exam had not yet been
preformed [sic], so it was not known if there were any retinal hemorrhages
and the extent of injuries in that area was still unknown.” Nonetheless, the
doctor was “very emphatic and said that the ‘shaking’ happened just before
Saniya began to show distress.” Finally, in response to Detective Dhabalt’s
question about whether seizures could have caused the injury to the brain,
Doctor P. “advised that seizures are an electrical brain activity and these inju-
ries are not related to that type of injuries. The injuries suffered are directly
related to having been shaken. She said the child is experiencing seizures now
as a result of those injuries.”59
Again quoting from the detective’s report: “[Doctor P.] also said, if dur-
ing a future interview we needed to consult with her, if the parent(s) tried
to offer an explanation for the injuries she would be available to contra-
dict their explanation. I thanked the Doctor and we disconnected.” Apart
from the supreme confidence evinced by Doctor P., one striking feature of the
pediatrician’s proposal (to assist the detectives by “contradicting” the parents’
account) is its conception of her role in relation to the criminal investigation.
Inherent in this conception is the extreme unlikelihood of Doctor P. revis-
ing her estimation of the diagnosis based on the receipt of any new informa-
tion—like, in this case, a family history of seizures.60
Based on his conversation with the doctor, Detective Dhabalt approached
Britts for a second interrogation a few days later. In the words of the detective,
“we’ve learned some things” . . . “we have a shaken baby.” As we saw, the certainty
of the detective was complete: “The one thing we know that doesn’t massage or
blur up the truth is these medical pictures that say this happened to Saniya and
it happened right here.” With every reason to believe that a confession would
strengthen the case significantly, the detective pressed Britts for an explanation
that would satisfy the doctors. As described earlier, after offering a number of
possible explanations for Saniya’s condition (all of which were rejected), Britts
was apparently persuaded that he must have somehow inadvertently harmed
his baby, since the medical evidence seemed to leave no room for doubt.61
The interrogation was taped and later played for the jury. This was equivo-
cal evidence—the prosecutor could (and did) argue it was consistent with
a guilty conscience, but the statement was surely not a confession, and it
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may well have advanced Britts’s case for innocence. The state’s proof of guilt
was in essence the medical testimony regarding the significance of the brain
bleeding.
For its part, the defense emphasized ambiguities surrounding the current
iteration of the diagnosis. On cross-examination, Doctor P. reiterated her
conviction that this was “abuse,” but acknowledged uncertainty about what
this abuse entailed: for instance, the injuries could have been caused by shak-
ing or “soft impact.” She also admitted that “nobody knows” the force thresh-
old for injury to the brain or neck.62
Defense counsel’s questioning also centered on alternatives that were not
adequately considered. Rather than advance a single definitive cause to explain
what happened to Saniya, the defense suggested that Doctor P. had overlooked
or discounted a number of preexisting medical conditions that might have
contributed to the bleeding on the baby’s brain.63 Cross-examination elicited
that at least one radiologist detected old bleeding on a CT scan, and four radi-
ologists found an enlarged space in the subarachnoid region of the brain.64
But when asked to comment on a 2005 article in the American Journal
of Neuroradiology,65 warning that, “caution must be exercised when you con-
clude non-accidental trauma based on the sole presence of a subdural hema-
toma, especially with babies who have enlarged spaces,” Doctor P. replied,
“That sounds like an opinion to me.” The doctor refused to acknowledge the
possibility that Saniya had experienced a re-bleed of an existing subdural, trig-
gering the baby’s seizure activity—according to the expert pathologist pre-
sented by the defense, a likely alternative.66
After hearing the testimony of the child abuse pediatrician, an emergency
room doctor, and the baby’s primary care physician (all for the state), and a
pediatric radiologist and a radiologist (both for the defense), the jury was
asked to decide Britts’s fate. Just one hour later, it delivered the verdict: not
guilty.67
Britts was released after two years of incarceration. Reflecting on the
ordeal, Britts admitted, “It’s kind of hard to start over. I lost my job, lost my
family.” Even so, he said, “It’s a blessing to be home and still standing.”68
Patti J. Mock
Like other SBS defendants, Patti J. Mock had no satisfactory explanation for
the sudden collapse of Xavier, the eight-month-old boy in her care. When
Xavier was brought to a Rockford, Illinois, emergency room, Mock recounted
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for medical personnel how the baby fed from a bottle, vomited, and then
went limp. But, once subdural and retinal hemorrhages were discovered, the
sixty-two-year-old grandmother was quickly suspected of shaking the baby.
After Xavier died, Mock—who continued to insist that she had done nothing
to harm the boy—was charged with his murder.69
Nearly two years later, in 2011, Mock went to trial before a jury, facing
twenty to sixty years in prison if convicted. The state’s two medical experts
agreed that the presence of the triad meant that Xavier had been shaken.70
Doctor Jill G., the director of her hospital’s child protection team and
a board certified child abuse pediatrician, did not treat Xavier, but she was
asked by the prosecutor to review his case.71 Doctor G.’s testimony at Mock’s
trial served largely to educate the jury about SBS. In an account closely resem-
bling the pathognomonic version of the diagnosis, the pediatrician explained:
What is seen, particularly with children with shaking or cranial rota-

tional injury, is the findings of intracranial bleeding which is subdural
hematoma, swelling of the brain, that’s cerebral edema, and associated
findings such as a unique pattern of bleeding in the back of the eye
called retinal hemorrhaging, but it is a unique pattern that has to be
extensive and multilayered and out to the peripheral of the eye. So
you must describe that pattern. The other most important part is the
absence of a history to explain these, these injuries. At that point we
will do a complete investigation, medical evaluation. But those are the,
the sentinel findings to, to entertain the diagnosis of severe cranial
rotational injury to the brain.72
Interpreting the subdural hematoma, cerebral edema, and retinal hemor-

rhaging, Doctor G. explained at trial that Xavier suffered from “inflicted trau-
matic brain injury” that could only have been caused when he was in Mock’s
sole custody. “There was no medical proof, or I should say medical practice
that a child with these severe injuries” could be lucid, Doctor G. testified.73
As to the force necessary to inflict the injury, the doctor did not even
attempt to quantify the level of mechanical or other scientific terms, instead
declaring, “anybody witnessing this act would know that this would . . . cause
serious injury.” To underscore that the doctor’s testimony was intended to
show Mock’s mental state at the time of the alleged incident, as opposed to
a bystander’s, the prosecutor asked, “Would that include the person actually
doing the shaking?” Doctor G. readily replied, “the person doing the shaking,
yes.” The triad thus cast established that the caregiver was a murderer.74
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In addition to Doctor G., the state presented testimony of the treating

pediatrician, Doctor Raymond D., also the director of the local child protec-
tion team. When Doctor D. was called to consult on Xavier’s case, he learned
that the baby had a history of at least one significant neurological episode.
Five months earlier at the home of another babysitter (not Mock), Xavier had
been feeding from a bottle and suddenly stopped breathing. Doctors were
unable to determine a cause for the possible seizure, and Xavier was released
from the hospital without medication or a further treatment plan.75
Doctor D., who estimated that 50 to 70 percent of his training focused on
SBS, admitted that medical understanding of the diagnosis had changed over
time—“you cannot say, as they did years ago, well he has got a subdural hema-
toma and retinal hemorrhage, so it is abusive head trauma.” Doctor D. also
acknowledged “misconceptions that were testified to in the past.”76 (This level
of candor as to past error is unusual, particularly insofar as it implicates the
convictions of defendants prosecuted under discarded theories of SBS.)
After considering the lab tests, the medical history, and his physical exam
of Xavier, Doctor D. formed “an impression” that this was SBS, but he still
needed to resolve “loose ends.” When the doctor received negative results on
a number of metabolic studies, his impression solidified into an opinion held
“to a reasonable degree of medical certainty”: given the absence of an alterna-
tive medical explanation, the triad was “caused by acceleration/deceleration
injury, shaking.” In contrast to Doctor Jill G., however, Doctor D. expressly
conceded that “there is no study that says how hard or how often you have to
shake to produce injuries.”77
However, Doctor D. was certain of the impossibility of a lucid inter-
val: “the current literature will support the fact that when you injure the
brain in this fashion, okay, when there is damage to brain tissue itself, at that
moment in time there are immediate and observable signs and symptoms.” In
short, Doctor D. concluded that “[g]iven the lack of history for any signifi-
cant injury, and the cerebral edema and the subdural hemorrhage findings,
along with the retinal hemorrhages present, this is certainly representative of
a case of abusive head trauma.”78
Representative though it was, after a three-week trial and nearly two
years in jail awaiting a verdict, Mock was found not guilty. The jury took
just twenty-two minutes to acquit. The prosecutor was surprised not only
by the verdict, but by how quickly it was reached. As he acknowledged, the
case rested entirely on the state’s doctors’ interpretation of the triad, which in
the past would almost surely have been enough for a conviction. As the pros-
ecutor encapsulated the trial, “[w]e had the opinions of two well-respected
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physicians that this was a case of shaken baby syndrome. We believed at the
beginning of this case that this was going to be sufficient to prove the alle-
gations beyond a reasonable doubt. Obviously, the jury found differently.”
According to the defense attorney, the outcome “certainly raises questions
about the reliability and the credibility” of SBS/AHT.79
The evidence against Mock is standard fare for prosecutions that rely on
the new SBS. The state’s experts emphasized that the bleeding on this baby’s
brain was so extensive (and, in the case of the retinal hemorrhages, so par-
ticularly located) that the only possible cause was shaking inflicted just prior
to loss of consciousness. Even if there was chronic subdural bleeding, as the
defense suggested, it would not—could not—cause neurologic symptoms
like Xavier’s.80
Though the medical evidence conformed to the prosecutorial paradigm,
this jury was not persuaded. Perhaps it focused on the absence of bruises, skull
or bone fractures, and neck injuries, and concluded—as Mock’s lawyer argued
on summation81—that their absence undermined the state’s theory of abuse.
Perhaps the jury believed the caregiver, who testified at trial. She described
the rapid deterioration of Xavier and her own realization that, although she
had no idea what had happened, the baby needed emergency medical care.
She wasn’t angry or frustrated, Mock quietly told jurors, and she denied shak-
ing Xavier or hurting him in any way.82
As for what happened to the baby, the defense suggested that a preexist-
ing injury was responsible for the symptoms that doctors viewed as proof
positive of abuse. Through her own experts, Mock presented evidence of a
chronic subdural hematoma, perhaps caused by birth trauma, and an abnor-
mal rate of head growth. All of this led to a “cascade of events” that, according
to Doctor Ronald U., a neurosurgeon who testified on Mock’s behalf, resulted
in Xavier’s extreme neurological impairment.83
The state’s experts dismissed this possibility. Doctor Raymond D. did
not dispute that Xavier had subdural bleeding prior to the date in ques-
tion. Indeed, when his former sitter brought the baby to the hospital five
months earlier, a CT scan captured the old blood. Still, Doctor D. was
certain: “[T]he injury at birth had nothing to do with his acute decom-
pensation on that day.” Though not a radiologist, Doctor Jill G. did not
accept that the earlier CT scan revealed a subdural hematoma. She added,
however, that even if there was old bleeding, it would be “irrelevant to
what happened” to Xavier.84
The episode five months prior was simply not a factor in understanding
why Xavier had again collapsed. Again, doctors were never able to pinpoint
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the cause of the baby’s previous seizure activity. Yet despite the earlier 911 call,
hospitalization, unusual blood test results, and the former sitter’s report—on
her watch the baby had stopped breathing and become both lethargic and
unable to track with his eyes—Xavier was, according to Doctor G., a “well
child.” In her estimation, he was fine until Mock shook him.85
It seems the jurors disagreed. Whether they felt certain about the
cause of Xavier’s death, they possessed real doubts about the state’s theory.
The state’s doctors were unable to adequately explain—and, perhaps more
important, were unwilling even to consider—the earlier incident. This
refusal to concede the existence of ambiguity could well have undermined
the doctors’ credibility. Jurors may have expected at least some reserva-
tions; instead, they heard only expressions of certainty. In this prosecution,
as in all SBS prosecutions, the state cannot convict if the jury does not
credit its doctors.
Even though the state’s experts dismissed the earlier neurological incident,
jurors may not have done so. Perhaps they engaged in this thought experi-
ment: if the former sitter had been alone with Xavier at the time (she was
not), would she have been accused of shaking the baby? What if there was
no earlier CT, or no indication whatsoever of Xavier’s chronic subdural
hematoma (since they are normally asymptomatic)? Wouldn’t even Mock’s
experts then have remained unaware of an alternative explanation for the
baby’s collapse? Was Mock just the one unlucky enough to be alone with the
baby when his undiagnosed condition became critical? At bottom, what hap-
pened five months prior was a reminder: at times, doctors do not know what
is going wrong.
On her first night of freedom in twenty-two months, Mock reunited with
her family. Only her oldest two grandchildren had known she was in jail; for
them, explained Mock, “it was hard at times, very hard, because they had to go
to school.” The younger children were told that their grandmother was travel-
ing. Mock’s children “became stronger, and what they thought they couldn’t
deal with, they could deal with.”86
“There is light at the end of the tunnel,” Mock said after her release. “It’s
going to take a while to get there sometimes.”87
Dismissals
Skepticism of the triad’s worth can divert a case from the criminal justice
system altogether. On occasion, police arrest a caregiver but, after further
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investigation, the state chooses not to initiate a criminal prosecution. At

other times, after an arrest is made and a prosecution commenced, charges
are eventually dismissed by the state. (Some of these diverted cases are heard
in family court, the forum for resolving custody issues when there are allega-
tions of abuse by parents.) In all of these scenarios, despite the presence of
one or more triad symptoms, the criminal process either is not initiated or is
truncated in operation.
Now that the diagnosis less invariably results in a conviction, bypass of the
justice system altogether—or dismissal early on—is becoming a more com-
mon path for cases involving the triad. Increasing reluctance to proceed on
the part of police and prosecutors may be an indication that the system is
adjusting in response to scientific advancement. If so, this category (the most
difficult of all to track) will continue to grow. In the meantime, however, it
amplifies the differential legal treatment of like facts.
Some suspects find themselves fighting for custody in family court, others
manage to clear their names without ever entering the legal system, and many
still are prosecuted to the fullest extent. Serendipitous factors like which hos-
pital or doctor treats the baby may matter, as does whether a second medical
opinion is sought, and how quickly. The prosecutor’s office handling the case
can make a difference. So too do characteristics of the suspect come into play,
particularly as the diagnosis has become more subjective. Parents with means
are more likely than others to avoid arrest, though they may be informally
channeled to family court. One key predictor of a positive outcome is elevated
social status, which empowers parents to seek second opinions on medical
questions, to question those with authority (including doctors, who may even
be viewed as intellectual equals), to withstand police questioning or refuse it
altogether, and to realize the importance of promptly retaining legal counsel.
Even when they are vindicated, the effort exacts a toll. Still, many consider
themselves lucky given what they managed to forestall, and grateful for the
wherewithal to mount a case for innocence. The experience often spawns a
commitment to help others avoid the same fate or worse.
When a baby found with the SBS triad has died or suffered permanent injury,
a criminal investigation is inevitable and an arrest likely. But prosecutors are
becoming more willing not to pursue charges, even in the face of the standard
medical evidence used to prove guilt. This evidence may now be assessed dif-
ferently, as leaving reason for doubt.
In a small town in Oregon, Linda Britton was the only suspect in the kill-
ing of a six-month-old in her care. Britton claimed that the baby had stopped
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breathing after falling from a couch, and that she had shaken the child gently
in the course of revival efforts. The baby died three days later, and doctors—
dismissing the idea that a fall could have caused the baby’s neurological symp-
toms—suspected that she had been shaken.88
But the case began to unravel when a neurosurgeon found evidence of a
chronic subdural hematoma, two or three weeks old. Frequently, old bleed-
ing is either deemed irrelevant or viewed as proof of earlier abuse, as we have
seen. Doctors in this case, however, acknowledged that the prior hemor-
rhaging could have made the baby more vulnerable to serious injury from
a relatively minor trauma—like a short fall. Notably, the autopsy investiga-
tion took several months to complete because the pathologist consulted sev-
eral other medical examiners. The final report classified the baby’s death as
“undetermined.”89
According to a statement released in September 2011 by the prosecutor
handling the investigation, Britton was not to blame for the baby’s death. The
evidence suggested that the caregiver had left the child on the couch for thirty
seconds and shook her in a panic only when she stopped breathing. More
to the point, the prosecutor explained that the state could not prove that a
crime occurred. The preexisting injury—its origins a mystery—presented
insurmountable problems of proof. Britton was never charged; her case had
fallen to a prosecutor able to admit, “It’s difficult to know exactly what hap-
pened here.”90
In cases where SBS was the original diagnosis, prosecutors have chosen not
to initiate charges when old bleeding was discovered, when the caregiver
reported a fall, and when a natural disease process was identified as an alter-
native cause.91
At least one defendant—Damian Stow, a nineteen-year-old man from
Taos, New Mexico—was freed by a grand jury when the evidence was
deemed insufficient to proceed to trial.92 (In many jurisdictions, like New
Mexico, grand jury indictments are used to move felony charges forward.
Dismissal by a grand jury is quite unusual given the low threshold of evidence
needed to indict a suspect.) Stow was charged in August 2012 with shaking a
three-week-old baby in his care, causing intracranial pressure and bleeding in
the brain. The most damaging evidence against the caregiver was the infant’s
bilateral retinal bleeding, which led doctors to diagnose SBS. While the
defense did not offer the grand jurors a definitive explanation for the baby’s
collapse, it offered the testimony of an emergency medicine doctor skeptical
of the triad’s evidential worth.93
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Once the child abuse charge was dismissed, Stow was released after serv-
ing two months in jail. The defendant’s lawyer pointed to the child’s “history
of other medical conditions” and emphasized the importance of having an
expert review the records carefully. “This is why people should be healthily
suspicious of initial charges of SBS.”94
Even where prosecutors do initiate charges in SBS cases, they are increas-
ingly willing to dismiss them where evidence of guilt is cast in doubt.
These cases show that a midstream change in course can indeed occur. This
happens at various stages of the process—shortly after arrest, just before
trial, or in anticipation of a retrial. Prosecutors provide various reasons for
the decision to dismiss, some more specific than others. Regardless of the
grounds articulated, these dismissals reflect a significant shift in how the
state is evaluating evidence of guilt. In these cases, doctors were once con-
vinced that there was shaking, and some may remain so. But new informa-
tion has persuaded the prosecutor that the triad cannot prove guilt beyond
a reasonable doubt.
In one alleged shaking where the baby was found with an older subdural
hematoma, the prosecutor stated simply that the case was not “viable.”95 In
another dismissal of charges, the state’s own experts disavowed the initial SBS
diagnosis, leading the state’s attorney to insist, “[we] believe wholeheartedly”
that the defendant is guilty. But, the prosecutor added, “two of the state’s
foremost child abuse experts” did not support that conclusion.96 Why the
prosecutors’ “wholehearted” belief persisted is unclear. But, regardless, where
the evidence could not establish guilt, the case was rightly dismissed.
On occasion, prosecutors have dismissed charges where the defense pro-
vided a preview of its own experts’ opinions regarding causation. In a 2001
Atlanta case, the state’s doctors diagnosed SBS based on the presence of subdu-
ral hematoma and retinal hemorrhage. In advance of trial, the defense attorney
provided the baby’s full medical history to a forensic pathologist and a pediat-
ric neuropathologist. Each doctor concluded that the infant’s neurological col-
lapse was “most likely caused by complications of a respiratory syncytial virus
(RSV) infection” that led to cortical vein thrombosis (again, a kind of stroke).
After reviewing these conclusions and considering the anticipated testimony
of the defense experts, the state dismissed all charges against the defendant.97
Aisha and Wadham Alamri, a Stamford, Connecticut, couple, first brought

their nine-month-old son to the hospital after calling 911 to report that
he had fallen three feet from a changing table onto a carpeted floor. A CT
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scan revealed no signs of head trauma and the baby was sent home. Four
days later, Aisha again called 911 to report that her son was having difficulty
breathing, and that he had been vomiting and lethargic for days. This time,
a CT scan indicated old and new subdural bleeding, and the baby was trans-
ferred to a children’s hospital, where doctors also discovered bilateral retinal
hemorrhages.98
The diagnosis was abuse, and the possibility that a short fall caused the
bleeding was dismissed as inconsistent with the baby’s neurological symp-
toms. Both parents were arrested and charged with felony assault in January
2010.99 Aisha was pregnant at the time. When she gave birth months later,
the baby was removed from her custody due to the pending abuse allegations.
The pediatric neurologist consulted by the defense suggested that the
infant’s retinal and subdural bleeding might indeed have resulted from rela-
tively little trauma (like a fall), especially given the baby’s unusually large head
size. When confronted with this alternative view of the evidence, prosecutors
agreed to an “accelerated rehabilitation program,” which would result in the
dismissal of all charges after an eighteen-month probationary period.100 The
Alamris were financially devastated by legal fees, but free and reunited with
their children.
For a final illustration of the state’s willingness to reconsider its position on

an SBS diagnosis, consider Giovaninna Guardascione. In September 2009,
prosecutors dismissed the case against her even after she had already pleaded
no contest to felony child abuse.101
Guardascione, who ran a small day care in her Naples, Florida, home, called
911 to report that an eleven-month-old child was unresponsive. At a children’s
hospital in Tampa, doctors found severe subdural bleeding and diagnosed the
baby with SBS. Guardascione was arrested and charged with aggravated child
abuse, which carries a sentence of up to thirty years in prison.102
As Guardascione’s lawyer later admitted, “[o]ur concern was their expert
was very certain about the time frame,” which dictated that the injury could
only have occurred while the baby was in the care of the defendant. The
defense hired a neurosurgeon, who maintained that chronic hematomas can
re-bleed with little or no impact. This allowed for the possibility of a “much
wider time frame.” As for the source of the old bleeding, the neurosurgeon
concluded that the baby’s “injuries inside the brain could have happened at
birth and took a while to manifest.” While offering a less definitive account
than the state’s, the defense would endeavor to show at trial that there was a
preexisting problem when the baby was delivered to Guardascione, and that
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“[w]hoever is unlucky enough to have custody of the child at the time gets
blamed.”103
Three years after her arrest, the prosecution offered Guardascione a
no-contest plea with not more than three years in prison. Now sixty years old
(and facing three decades of incarceration), she agreed. When it came time
for sentencing, however, the case took a turn. Guardascione, as she had all
along, insisted that she was innocent.
“So you never hurt the baby?” asked the judge.
“No, never,” replied the defendant firmly.
It was then that the baby’s father interrupted. “I don’t want anybody to go
to prison for something they have not done,” he said. His son, now four years
old, seemed to be mostly fine, though the parents were concerned about his
speech development. “I guess it comes to the point where no one is guilty,” the
baby’s father suggested.
In response, the judge made an unusual request of the defendant: take
a polygraph test. “It will prove to the judge that you are telling the truth,”
explained the defense lawyer to Guardascione, an Italian speaker with only
limited English proficiency. The judge added, “or it may show you’re not tell-
ing the truth, too.”104 (While of questionable reliability and not generally
admissible at trial, polygraph results are sometimes used in post-conviction
proceedings.)
Guardascione passed the test. Admitting that he was in a “very peculiar
position,” the judge promised a non-jail sentence. The prosecutor asked for
time to reconsider the case given that Guardascione had passed the poly-
graph, and because of the father’s expressed desire that an innocent person
not go to jail. The judge noted his appreciation for the prosecutor’s “very
broad approach in seeking justice.”105
Two weeks later, the prosecutor moved to dismiss the case. The prosecutor
explained that, “with the information that the victim’s father provided . . . and
the new information that came to light during the re-interview of the defen-
dant following her polygraph, we felt we could not prove the case beyond a
reasonable doubt.”106
No-Arrest Cases
Michelle Weidner
Michelle Weidner knew that her son, Jacob, was not well. After a difficult
delivery and twelve days in the Neonatal Intensive Care Unit, the baby was
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sent home, but he continued to experience unexplained medical problems.

A month later, Michelle brought Jacob to a Peoria, Illinois, emergency room
because of vomiting. When he momentarily stopped breathing, doctors per-
formed a CT scan, which the consulting pediatrician interpreted as “suspi-
cious for nonaccidental trauma.” The pediatrician also described an earlier
MRI as revealing “multiple subdural hemorrhages” that “could have been
traumatic in nature” and “nonaccidental.” Police officers and child protec-
tion workers were quickly summoned to the hospital, where they questioned
Michelle and her husband, Dave, as to which one had injured their baby. The
parents were ordered by Child Protective Services not to be alone with Jacob
or their two older children (ages six and four).107
These were not your typical suspects. Doctors not involved in the diagnosis
of abuse assured the Weidners that they did not come close to “fitting the pro-
file.” Michelle, who had earned her master’s degree in nonprofit management,
was raising the children full time. Dave was a clinical psychologist with the
Federal Bureau of Prisons. Still, authorities believed that one or the other had
harmed their infant. “It was terrifying,” Michelle later recalled, “because we
knew something was terribly wrong with our baby, who was lethargic and fail-
ing to thrive, and they were wasting time suspecting us. It was a nightmare.”108
A week later, Jacob was released from the hospital to the custody of his
parents, and the supervision order lifted. Notwithstanding the opinion of the
pediatrician who was consulted after the CT scan, there was no consensus
that this was abuse. The doctors who treated the baby in the days preceding
his hospitalization—a pediatric neurosurgeon, a pediatric ophthalmologist,
and a pediatrician—had not suspected abuse. Even though they could not
determine a cause for the infant’s neurological symptoms, the decision was
made to forego any further investigation.109
The Weidners wanted a more satisfying explanation for their baby’s medi-
cal condition and decided to solicit an opinion from a leading children’s hos-
pital in Cincinnati. It turns out Jacob’s brain was normal; he apparently had
moved during the CT scan, and the consulting pediatrician’s interpretation
was incorrect. There was no sign of bleeding in the brain, and no indication
whatsoever of trauma. The infant was later diagnosed with a rare medical con-
dition involving the kidneys. Were it not for the Weidners’ unusual ability
to pursue the proper diagnosis, Jacob’s case would probably have remained a
medical mystery.110
Michelle continues to experience nightmares, but she is grateful nonethe-
less. As she observes, “Not everyone has the resources or insurance to pay for
the second opinion it takes to prove their innocence.”111
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Julianna and Greg Caplan

In the late summer of 2007, Julianna Caplan, a former CNN publicist living
in the Georgetown neighborhood of Washington, D.C., was home with her
eight-month-old twins. As she was changing a diaper, Julianna heard a “thud”
and turned to see her other baby trying to push herself up from the floor
where she had been crawling, after evidently bumping her head.112
There was no immediate sign of a problem but, over the next few hours,
the infant became fussy, began vomiting, and drifted to sleep. Her parents
brought her to the hospital, where a CT scan found old and new blood. As
the neurosurgeon explained, such bleeding might result from otherwise triv-
ial bumps, which have a greater effect on babies with large heads. In this case,
the infant’s had grown to the 95th percentile. She was kept in the hospital for
observation.113
Overnight, the baby experienced violent vomiting and seizure-like activ-
ity. The next day, an ophthalmology exam revealed the presence of bilateral
retinal hemorrhages. Without an adequate explanation for the symptoms, the
Caplans were suspected of abuse. Both twins were quickly removed by Child
Protective Services from their parents’ care.114 (Like the states, the District of
Columbia allows for temporary removal of children on an emergency basis,
absent prior judicial authorization; a family court hearing comes later.)
The detective assigned to the case predicted, “this is going to turn out
to be abuse,” and told Julianna and her husband, a manager for Lockheed
Martin, “[w]ith your kind of money, you should put up cameras in your
house.” (Presumably the detective was questioning why the Caplans had not
installed a “Nanny Cam.”) The following day, an MRI found no fractures or
additional symptoms. A pediatric neurologist who was consulted informed
the Caplans that the scan was “inconsistent with SBS.” He further suggested
that the baby’s large head might explain her subdural hematoma, and pos-
ited that her violent vomiting could have caused the retinal bleeding.115
The pediatrician who initially suspected abuse agreed, after consulting
with the neurologist, that the baby’s subdural bleeding could have resulted
from benign extraaxial fluid collections of infancy (sometimes described
as BESS or BEH). But because of the retinal hemorrhages, the pediatrician
would not rule out abuse. She concluded in her final report that the cause
of the infant’s symptoms was “indeterminate.” Already the city had initiated
an action in family court to remove both children from the Caplans’ care.
A week later, the pediatrician would testify against the parents in a prelimi-
nary family court hearing on the removal.116
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But also testifying was Doctor Ronald U., the neurologist promptly hired
by the Caplans. Doctor U. explained that the baby’s vomiting could have
increased venous pressure, causing the retinal hemorrhages. He also testified
that the absence of any neck injury suggested the baby had not been shaken.
The family court judge found no “reasonable grounds” to believe that the
child was abused.117
The criminal investigation was not pursued. Well-educated and sophisti-
cated, the Caplans were equipped to handle early questioning by the police,
and they quickly retained a lawyer in response to the accusations of abuse.
In order to fight the allegations in family court, the couple wiped out their
savings and borrowed from relatives. All told, they spent $75,000 to regain
custody of their daughters after weeks spent in foster care. But, as Julianna
remarked, “Who would not sell every stitch of clothing off their backs to fight
for their children?”118
At one point, the parents were offered a deal, which they refused.
According to Julianna, “It was like, what is the price of our morals. Do we lie
and say someone abused our daughters to make this go away?” The Caplans
have sued the District of Columbia, seeking reforms to the child welfare sys-
tem, compensatory damages, and punitive damages.119
Alvin Black
Alvin (“AJ”) was four months old when he was brought to a Portland, Oregon,
emergency room by his father, Seth Hutton, in November 2011.120 Seth, a chi-
ropractor, and his partner (now spouse), Alvin, were the legal parents of Alvin
and his twin brother. The two men had spent four years and over $100,000 to
undergo in vitro fertilization using an egg donor.121
Based on his irritability, continued vomiting, and high white blood cell
count, AJ was admitted to the hospital for observation. A CT scan revealed
the presence of subdural bleeding, and abuse was promptly suspected.
According to hospital records, “the presence of this patient’s acute/subacute
bilateral subdural hemorrhage without any identifiable medical etiology
or significant traumatic history is concerning for abusive head injury, par-
ticularly in the context of patient’s clinical symptoms. . . . Patient did have
a normal skeletal survey. Unfortunately a normal skeletal survey does not
exclude abusive head injury as a diagnosis since approximately 1/2–2/3 of
infant victims of AHT will NOT have accompanying fractures.” The treating
pediatrician called in a report to Child Protective Services and requested an
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ophthalmology examination. Three days after AJ was admitted to the hospi-

tal, an ophthalmologist found extensive bilateral retinal hemorrhages.122
Doctor Danny L., a child abuse specialist, was called to consult on the
case. His review of the ophthalmologist’s written notes led him to “remain
concerned that this patient’s presentation is the result of abusive head trauma.
While the presence of retinal hemorrhages is not specific only to abusive head
trauma, the amount of hemorrhages that are documented and their exten-
sion into at least the mid-periphery are certainly concerning, and based on
this description, I would not expect these hemorrhages to be seen in a coagu-
lopathy or other natural disease process.”123 Notably, the ophthalmologist,
Doctor David W., did not diagnose abusive head trauma. Its only mention
in his consultation notes came by way of explaining his involvement in the
case: prompted by the discovery of subdural hematoma, the ophthalmologist
was called to perform “a non-accidental trauma evaluation . . . to look for reti-
nal hemorrhages.” Doctor W. recommended in his notes that investigation
into the etiology of the patient’s bleeding continue.124
Doctor Danny L., the child abuse specialist, did not concur with this rec-
ommendation. After speaking with Doctor W., Doctor L. wrote: “I have had a
discussion with the treating medical team about the possible need for a repeat
examination based on the information that was portrayed to me regarding
the findings on [Doctor W.’s] examination. After talking with [Doctor W.],
I do not feel that a repeat examination would yield significant additional
information, but I will ultimately leave that decision to the treating medical
team.” No further examination was performed.125
The following day, despite the fact that results from requested lab tests
were still outstanding, Doctor L. emphasized, “I remain concerned that this
patient has been the victim of abusive head injury, and based on his evaluation
and findings to date, it is my medical opinion that this is the most likely expla-
nation for his clinical presentation and findings. I have discussed my concern
with the fathers of the patient, as well as with CPS [child protective services]
and police investigators.”126
Black, the primary suspect because he was caring for AJ when the vomit-
ing began, continued to insist that he had done nothing to harm the baby.
Hutton remained entirely supportive. When Child Protective Services
removed the babies from the custody of their parents, the two men quickly
hired a lawyer to assist with the upcoming family court hearing. The lawyer,
in turn, retained the services of three experts.
The doctors offered a number of explanations for AJ’s neurological symp-
toms. One pediatric radiologist concluded that the imaging findings were
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“likely secondary to illness, dehydration and/or lumbar puncture [a proce-

dure performed at the hospital to test for meningitis] . . . superimposed upon
bilaterally prominent infantile subarachnoid spaces or collections.”127 A sec-
ond pediatric radiologist suggested that AJ’s symptoms were “the sequala of
natural disease, likely resulting from a cascade of events, which included a
viral illness or inflammatory process, potentially exacerbated by minor dehy-
dration, metabolic abnormalities and/or traumatic lumbar puncture.”128 The
internist who reviewed the records posited “an ongoing illness” that “could
have been an infection that was never precisely identified (not unusual in
clinical practice) and/or a metabolic disorder” that, in combination, caused
cortical vein thrombosis and led to the baby’s neurological symptoms.129
Although Black’s doctors did not know precisely what caused the baby’s
bleeding, they agreed that abuse was not a reasonably likely scenario. Even
in the absence of certainty as to what happened to AJ, and despite the pres-
ence of bilateral retinal hemorrhages and subdural bleeding, the family court
judge found for Black. Three months after his children had been taken from
him, they were returned. A month later, the family court case was dismissed
altogether.130
Teresa Gracias
Five-week-old Yohan was experiencing seizures in June 2011 when his mother,
Teresa Gracias, brought him to the emergency room at a Chicago children’s
hospital. There, doctors found subdural hematoma and bilateral retinal hem-
orrhages “too many to count.” Child Protective Services promptly removed
the baby and his two-and-a-half-year-old sister from the care of their parents
pending a full evidentiary hearing.131
What is noteworthy about Gracias’s case is that her lawyer consulted the
Chief of Neurosurgery at the University of Chicago, who reached a mark-
edly different conclusion about the cause of the infant’s neurological symp-
toms. The neurosurgeon noted that Yohan was born with benign external
hydrocephalus (BEH), which can predispose babies to subdural hemorrhage.
In Yohan’s case, it was “likely” that such a hemorrhage occurred at birth and
again more recently due to minimal trauma (“consistent with the activities
of daily living”). The neurosurgeon further noted that BEH can dilate the
space between the optic nerve and retinal space, causing blood from other
parts of the brain to accumulate in the retina. The doctor’s report concluded,
“I disagree with the findings of [the children’s hospital]” that Yohan’s neuro-
logical symptoms “are likely related to inflicted trauma”; rather, “many of the
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other [possibilities in the differential diagnosis] are just as likely or even more
likely.” Noting the lack of any bone fractures or bruising, the neurosurgeon
opined that the findings were “consistent with the data presented by his care-
takers of no overt trauma.”132
After hearing from eleven expert witnesses, the family court judge wrote,
“this has been an extremely difficult case for me to decide.” By a preponder-
ance of the evidence—a much lower standard of proof than what is required
in criminal prosecutions—the judge found that Yohan “suffered physical
abuse,” based on the neurological symptoms and the presence of what the
state argued was a healing fracture of the femur. (The defense expert testified
that the imaging evidence was consistent with rickets, not a fracture.) The
judge could not determine who the perpetrator of this abuse was, however,
and emphasized that “[a]ccording to the evidence, mother and father are lov-
ing and responsible parents.” After living in foster care for almost a year, the
children were returned home.133 However, the state appealed the ruling.
At the time, Gracias offered this description of her family’s predica-
ment: “We came to the US about five years ago [from India] with a few dollars
in our pockets with dreams of this country being the land of justice and peace.
We have worked very hard in our IT job and been completely law abiding.
Our daughter Marika has never had any issues and is a happy three-and-a-half
year old. We proactively reported health issues in the first month of our son
Yohan’s birth and even videotaped a seizure to show to the pediatrician. We
feel the same helplessness, outrage and desperation that an illiterate farmer
in a poor Indian village feels against a corrupt moneylender who has taken
everything away from him.”134
In the end, in June 2013, an Illinois appellate court ruled decisively in
the parents’ favor.135 The trial judge’s finding that Gracias and her husband
were fit to care for Yohan was affirmed. But “after a thorough and painstak-
ing examination of the entire record, and in particular a detailed analysis of
the expert testimony,” the appellate court reversed the finding of abuse and
neglect. Evidence of abusive head trauma was inadequate to satisfy even the
low family court standard. Given testimony in the record regarding the pos-
sibilities of BEH, birth trauma, and cortical venous thrombosis, the court
emphasized that “the parents offered sound medical triggers for Yohan’s intra-
cranial bleeding . . . therefore, the trial court’s conclusion that the most likely
cause was abuse is contrary to the manifest weight of the evidence.”136
Similarly, with respect to the baby’s retinal hemorrhages, “the evidence
further established that Yohan’s enlarged subarachnoid spaces from BEH
explained the retinal hemorrhaging he experienced.”137 Even taking into
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account evidence in the case apart from the triad, the basis for the doctors’
opinion that the baby was abused was inadequate. As the court put it, “relying
on a ‘constellation theory’ when there is no preponderance of the evidence
proving abusive causation as to each separate injury is akin to relieving the
State of its burden of proof.”138 The court’s overall assessment of the case was
pointed: the parents had been “thrust into a nightmare by well-intentioned,
but misguided doctors and child protection specialists.”139
The appellate court victory was, for Teresa Gracias and her family, vindica-
tion. “This has restored our faith that truth does finally prevail,” she could say
at last.140
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08_9780199913633.indd 158 1/29/2014 1:10:22 PM
8 G U I LT Y P L E A S
Cindy Berdick’s case involves a standard fact pattern. A

forty-one-year-old mother of three, Berdick was also the care-
giver of a four-month-old boy. In April 2012, she was caring for
the infant when he lost consciousness. Doctors at a Philadelphia
hospital found retinal bleeding and subdural hematomas and diag-
nosed the baby with SBS. Berdick, who maintained her innocence,
was arrested and charged with aggravated assault. She faced up to
twenty years in prison.1
Seven months later, Berdick accepted the prosecutor’s offer. In
exchange for pleading guilty to a lesser charge, she would serve five
years on probation, avoiding prison altogether.2
Plea bargaining is the central engine of criminal justice. More than

95 percent of cases are resolved by a guilty plea,3 meaning, as the
U.S. Supreme Court has observed, that our “criminal justice sys-
tem today is for the most part a system of pleas, not trials.”4 Plea
bargains tend to give defendants a definite sentencing advantage
as compared to what they would face after trial.5 And because they
substitute for trials, plea bargains conserve resources: judicial,
prosecutorial, and defense. Given the number of criminal cases, it
is difficult to imagine our system any other way.6 Indeed, without
pervasive plea bargaining, our justice system as we know it simply
could not function.7 Even innocents at times plead guilty, as the
DNA exonerations have shown.8
SBS prosecutions often result in pleas of guilty, like Cindy
Berdick’s; and pleas of no contest, which allow for the imposition
of criminal sanctions without an admission of guilt.9 Many of these
prosecutions are premised on the certainty of medical experts that
the triad establishes the defendant’s guilt. With regard to the state’s
evidence, cases that result in negotiated pleas are quite like those
that go to trial.
When we attend to SBS pleas, we often see unusually large dis-
parities between the agreed-upon sentence and the defendant’s
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likely sentence after trial. It is difficult to quantify the frequency of what

I call “lopsided” pleas, in which there is a decided asymmetry between the
seriousness of the formal charge, on the one hand; and the ultimate case dis-
position, on the other. Clearly not all, or even most, SBS defendants receive
dramatically discounted plea offers. But this type of case resolution is hardly
aberrational. My sense from collecting press accounts of SBS cases over the
past five years is that lopsided pleas have become increasingly commonplace.
(Prosecutors enjoy virtually unfettered discretion to offer such deals notwith-
standing an ethical obligation to dismiss unproveable charges.)
Sharply discounted plea bargains stand in stark contrast to the harsh sen-
tences often imposed on defendants in triad-only cases and routinely imposed
after trial. The current regime features both categories of case outcome—that
is, lenient pleas and up to life in prison10—each resulting from the same medi-
cal opinion. Pronounced systemic dysfunction becomes apparent when nego-
tiated sentences are placed against the backdrop of SBS dispositions overall.
In the remainder of this chapter, I consider SBS pleas from two vantages.
First, I contend that the greater discounts offered to triad-only defendants sig-
nal that our system is in the midst of recalibration. As prosecutors, juries, judges,
and defense counsel reassess the probative value of an SBS diagnosis, lopsided
plea bargains allow the state to resolve a case short of dismissal, while enabling
the defendant to avoid the long prison sentence that looms if a jury convicts.
Related to this development is a second observation about SBS pleas. When
the prosecutor’s plea offer becomes sufficiently attractive, a defendant may be
hard-pressed to decline. This is true regardless of whether the defendant is guilty.
In short, I suggest that lopsided SBS pleas raise special concerns for innocence.
A System in Flux
Gretchen Marie Kruger, a mother and day care provider, was charged in 2006
with shaking and permanently injuring a sixteen-month-old baby in her care,
based on the presence of the triad. Kruger unfailingly expressed her inno-
cence and appeared ready to present expert testimony at trial challenging the
SBS diagnosis.11
She ultimately pleaded guilty to child endangerment, however. According
to her attorney, Kruger “couldn’t risk the possibility of being away from her
own four children,” and therefore “took advantage of the plea agreement,”
which allowed her to avoid jail completely. At the time, Kruger was facing a
sentence of twenty years in prison.
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Guilty Pleas • 161
Consider, as well, the case of Vincent Dias, who was accused of shaking
his two-and-a-half-month-old son to death.12 Dias consistently maintained
his innocence, and his lawyer was prepared to introduce expert testimony
challenging the validity of SBS and offering an alternative cause of the baby’s
death. An expert called by Dias would have told the jury that the infant “had
benign external hydrocephalus, causing fluid to collect in the brain. The
increased pressure stretches blood vessels, which tear and leak blood,” causing
seizures and death. But on the eve of trial, the defendant pleaded guilty in
exchange for six months’ incarceration. He had faced up to forty years in
prison.
Cases like these present the prospect of a decoupling of guilty pleas from
factual guilt. Why innocent defendants would forego the possibility of
acquittal at trial in exchange for dramatic sentence reductions is a separate
question, to which we will return. But for now, let us focus on the prosecuto-
rial side of the equation. Why have prosecutors become willing to offer such
attractive bargains to defendants charged with killing or permanently injuring
babies? These are not defendants who would be expected to receive lenient
treatment, after all. On the contrary: they have always been considered among
the most morally blameworthy of criminals.
Until the diagnosis came under scrutiny, these defendants were also
viewed as having little likelihood of success at trial. When SBS was defined
as pathognomonic of shaking (with no real challenge to this construction),
prosecutors could pursue charges based solely on the triad and know that the
odds of conviction were very high. As important, medical experts were nearly
unanimous in their assessment of the triad’s diagnostic significance, and the
science seemed unassailable.
Now that this has changed, so, too, is the prosecutorial stance toward the
triad shifting, however imperceptibly. Even when triad-only cases are charged,
which happens less as time passes, the state may be disinclined to proceed to
trial. Consider the case of Texas mother Suzanna Harwell.13 Arrested in 2009
for the death of her six-month-old son, Harwell was originally charged with
capital murder, a death penalty eligible crime. Bond was set at $1 million, and
Harwell’s three other children, ranging from two to twelve years old, were
placed in the custody of the state. The baby had no marks or bruises, but a
subdural hematoma led doctors at a children’s hospital in Houston to diag-
nose SBS. This conclusion and the autopsy finding—blunt force trauma—
were disputed by a number of medical experts who presumably would have
testified on Harwell’s behalf at trial. Prosecutors decided to re-indict Harwell
on a lesser charge of injury to a child.
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Upon further review of the case, the charges were once again reduced—
this time, to criminally negligent homicide. The reason the state agreed to
lower the charge (and ultimately dismiss the others), according to the pros-
ecutor handling the case, was that there was not enough evidence to convince
a jury to convict. “I personally am firmly convinced this baby was murdered,”
remarked the prosecutor. “Was I going to be able to convince twelve jurors of
that? I didn’t think so.”
When Harwell pleaded guilty to the lesser charge, she was sentenced to
two years in jail, which, given the time she had already served, allowed her to
be released in a matter of months. Even though the prosecutor “personally”
still believed in the SBS diagnosis, for whatever reason, he recognized that
the evidence would not likely convict Harwell. The plea bargain was viewed
as a necessary concession to deficiencies in the state’s proof of guilt, despite a
persistent faith that Harwell had shaken her baby.14 Commenting on the plea
bargain, the defense lawyer noted, “We feel vindicated because the state was
trying to put this woman to death, or at the very least, put her in prison for
literally the rest of her life, without parole.”15
In this case and others like it,16 we see that once strong evidence of guilt
has weakened, and prosecutors are adjusting.17 Especially where the charge
is murder or felony child abuse, a relatively light jail sentence suggests real
misgivings about the likelihood of conviction.18 Viewed against the backdrop
of recent scientific and legal developments, this prosecutorial discounting has
significance beyond any one case. Because triad-based prosecutions stem from
much the same fact pattern, individual case assessments may capture growing
skepticism about this category of prosecution in general.
It is difficult to assess whether prosecutors are themselves becoming more
doubtful, as opposed to simply gauging the evolving reactions of juries. But
since the “personal” beliefs of a prosecutor ought to matter less than the evi-
dence, this distinction should have minimal practical significance. (Suzanna
Harwell’s case shows why.) Either way, SBS pleas reflecting marked sentenc-
ing discounts can be understood as bellwethers of a systemic change in course.
From this perspective, prosecutors—and, as I will soon discuss, defendants—
must bargain in a moving context. Difficulty calculating the worth of a case
for bargaining purposes19 manifests a system in the throes of change.
To summarize, the rise of negotiated pleas that are lopsided marks a
regime in transition. Steep discounts in SBS cases represent new uncertainty
regarding trials and their outcomes where proof of guilt is the triad. A good
deal is in flux: the testimony of prosecution experts is under revision to
conform to new understandings of the diagnosis; defendants are more apt
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to muster a challenge to the science; and it seems jurors are becoming more
doubtful. Given these realities, prosecutors and defendants face a formidable
challenge when judging their trial risks. What we see reflects unsettled times
in the administration of justice.
When Innocents Plead Guilty

Plea bargaining is an imperfect mechanism for sorting the guilty from the
innocent. However jarring to our notions of justice, it is a fact that innocent
defendants at times plead guilty.20 The real question is how often this hap-
pens.21 Despite varying characterizations of the magnitude of the problem,22
and even with the benefit of research on exoneration data,23 determining the
incidence of “wrongful guilty pleas” is a practical impossibility.24
Even so, we know a good deal about why innocent defendants plea
bargain. For many, going to trial in hopes of vindication is too risky.25 An
empirical study conducted in 2012 shows just how difficult it is for people to
refuse a plea bargain, even when they did not commit the offense charged.26
The research was designed to replicate the conditions under which pleas are
negotiated in the criminal justice system. College student subjects were told
that they would be participating in research on logic problems, and that they
were to work alone. While the subject was solving the problems, in half of
the cases, a confederate asked for help. In the other half, the confederate did
not solicit assistance. In this manner, depending in part on their response to
the first scenario, study subjects were placed in an “innocent condition” or a
“guilty condition.”
Students were then told that they were suspected of violating the
work-alone rule and offered one of two alternatives. The first was a “plea” in
which the student would admit guilt and lose the promised study compen-
sation. If the plea was rejected, the option was to go before the Academic
Review Board, described as a forum where the student could present evidence
and make arguments on his or her behalf. To accord with current criminal
justice system realities, the student was told that the Board finds most stu-
dents, “like 80–90%,” guilty. If “convicted,” the student would not only lose
the promised study compensation, but would also be required to enroll in an
ethics class and have the faculty advisor notified.
It comes as no surprise that almost 90 percent of the guilty subjects accepted
the deal. What is unexpected is that over half—nearly 60 percent—of the
innocent subjects were willing to plead guilty to avoid a harsher punishment.
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The experimenters concluded that, “when study participants are placed in

real, rather than hypothetical, bargaining situations and are presented with
accurate information regarding their statistical probability of success, just
as they might be so informed by their attorney or the government during a
criminal plea negotiation, innocent defendants are highly risk-averse.”
When there is a large differential between the sentence offered as part of
the deal and the defendant’s exposure if convicted after trial, the incentive
to plead guilty is even more powerful. Indeed, in the experiment, a sizable
sentencing disparity (or, as I might describe it, extreme lopsidedness) was
the “main reason” for a defendant to plead guilty.27 Based on the results of
their “innocent defendant’s dilemma” study, the researchers hypothesized that
“once the sentencing differential reaches a critical size, its ability to imme-
diately and markedly influence the decision-making process of a defendant,
whether guilty or innocent, becomes almost overwhelming.”28
We now can better understand why someone wrongly accused of shaking
a baby might nevertheless plead guilty. The calculus is straightforward: pun-
ishment that is certain is more attractive than the risk that substantially
more jail time will be imposed after conviction at trial. Innocent defendants
charged with killing or severely injuring a baby still face a high likelihood that
a jury will return a guilty verdict. If offered a sufficient discount—that is, one
“big enough to compensate [the defendant] for foregoing the possibility of
being found not guilty”29—a rational person might well accept the terms of
the offer, notwithstanding factual innocence.
This is especially true when the rational person is landed in a world where,
not only police and prosecutors, but also doctors and their science, are fully
convinced of guilt. The predicament of an innocent SBS defendant has a
down-the-rabbit-hole quality to it. Without confidence in the justice system,
the decision to go to trial would seem almost foolhardy.
For some, of course, even a steep discount is insufficient to induce a guilty
plea. Karen Voss, who rejected a sentence of up to five years and went to trial,
was convicted. She is now serving a twenty-year prison term.30
The case against Li Hangbin involved not just the triad, but also fractures,
which the defense traced to a rare genetic disorder suffered by other members
of the baby’s family. Li rejected a time-served sentence on the eve of trial,
exposing himself to twenty-five years to life if convicted.31 (Li’s lawyer used
the term “fire sale” to characterize the increasingly attractive offers made by
prosecutors in the months preceding trial.32) “Are you sure you want to take
this gamble?” asked the judge. “Do you understand what risks you’re tak-
ing?” Li chose to remain in jail and proceed to trial rather than plead guilty
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to shaking his daughter to her death, which he insisted he did not do. Even
the prospect of immediately walking free from jail—after four years awaiting
trial—could not move Li to forego his opportunity for exoneration. At trial,
he was acquitted of the most serious charge, murder, but convicted of man-
slaughter and sentenced to five to fifteen years in prison.33
It is understandable that few are inclined to bet with their freedom when
the state offers relatively little incarceration, or none at all. Parents motivated
by the awful prospect of entirely missing their young ones’ childhoods and
adolescence must find lopsided pleas almost irresistible.34 An innocent SBS
defendant’s dilemma is a difficult one, to be sure.
Case Studies in Lopsided Pleas

Although the problem of innocents pleading guilty is hardly unique to the
SBS context, the pressures on an innocent defendant to plead guilty are com-
pounded by the triad-only prosecution paradigm. At times, defendants in
open court or through their lawyers articulate this quandary.35 But, far more
often, they quietly make their choice and do what must be done for their plea
to be accepted by the court. Not all defendants who avail themselves of steep
sentencing discounts are innocent. But their decision to accept the offer tells
us next to nothing about the likelihood of wrongdoing.
Brittany Cox
In February 2010, Brittany Cox found her six-month-old son unresponsive
and brought him to a nearby New Mexico hospital. The baby was then trans-
ferred to a larger medical center in El Paso, Texas, where he was diagnosed
with SBS. Cox was arrested and held in jail for ninety days before being
released on bond. She was charged with intentional child abuse resulting in
great bodily harm, which exposed her to eighteen years in prison.36
But Cox accepted the terms of the state’s offer, pleading no contest to the
charge in exchange for a probationary sentence. In contrast to the eighteen
years she faced, Cox would not be incarcerated at all. As part of the judgment,
the defendant was granted “reasonable rights of visitation” with her child.
(Cox’s brother-in-law, who was not criminally charged, was ordered to have
no contact with the child. His involvement in the case was not disclosed dur-
ing the proceedings.) Cox was permitted to continue interning as a veterinary
assistant. According to the prosecutor, “[u]nder all of the circumstances, we felt
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it was an appropriate resolution of the case.” Cox’s defense attorney also called
the plea “acceptable,” citing “the potential consequences” of going forward.37
Lois Saitta
In Long Island, New York, fifty-one-year-old Lois Saitta called 911 to
report that her two-year-old son, whom she and her husband adopted from
Guatemala six months before, had fallen from a high chair and was nonre-
sponsive.38 But doctors concluded that the boy had been shaken, and a later
autopsy described SBS as the cause of the boy’s death.39 In the spring of 2010,
Saitta was charged with manslaughter.40 The prosecutor declared that an
“innocent life has been violently taken.”41
“Mrs. Saitta is innocent,” insisted her lawyer. “The District Attorney’s case
is based upon a medical opinion which is flawed. The death of her son was a
tragedy and, unfortunately, she now has to endure the horror of this allegation,
but she will be exonerated.” He later added, “Lois Saitta’s life record is that of
a nurturing, kindhearted, patient human being. And she absolutely adored
her son.”42
Almost a year later, Saitta was faced with a decision. If she pleaded guilty
to the charge before trial, the judge promised to sentence her to one year
in jail.43 If she was convicted after trial, she could receive up to fifteen years
in prison.44 Straining to look back at her husband in the courtroom, Saitta
mouthed the words, “what should I do?” For several minutes, she spoke qui-
etly with her lawyer while the judge waited for an answer.45
Saitta chose to plead guilty. Her lawyer described a “very, very, difficult deci-
sion,” one reflective of the fact that “this trial would have been a real battle.”46
Sabrina Battad
In late 2011, a Virginia woman, Sabrina Battad, called 911 to report that her
nine-month-old son was unresponsive. The baby died that day, and doctors
quickly concluded that “the child most likely died from injuries sustained
from being shaken.” Battad was arrested and charged with first-degree mur-
der, which carries a possible life sentence.47
According to the prosecutor’s statement at a later hearing, the defen-
dant admitted shaking the baby before he died.48 In more precise terms,
what Battad apparently told police was that she placed the sleeping child
on his stomach in his crib and he “shook a little.”49 When she heard a cry,
she went to check on him and found that he was not breathing.50 Based on
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this confession, as it was characterized, and the doctors’ SBS diagnosis, the
prosecution proceeded with the first-degree murder charge.
But the autopsy was inconsistent with the infant being shaken, as the
prosecutor would later inform the court.51 (The prosecutor did not specify
the actual cause of death.) Accordingly, the state first reduced the first-degree
murder charge to second-degree murder, and then dropped it altogether.52
The case for murder fatally undermined, prosecutors nevertheless chose to
indict Battad on a charge of child abuse. The new theory was that Battad had
taken too much time to call 911, and this constituted neglect.53 At least one
pediatrician would testify that “a prudent parent” would have called for help
minutes earlier, perhaps saving the child’s life.54
Battad, who had been held without bond,55 pleaded guilty to the child
abuse charge almost a year after her arrest for murdering her baby by shaking.
She was sentenced to the time already served in jail, and she was free.56
Samantha Lynn Gilley

When Samantha Lynn Gilley brought her two-month-old daughter to the
hospital in February 2011, she could offer no satisfactory explanation for
the baby’s collapse. The baby was transferred to a children’s hospital in Salt
Lake City, where doctors found bilateral retinal hemorrhages and subdu-
ral bleeding. The symptoms were “consistent with being violently shaken,”
reported the doctors to police. When the baby died, an autopsy determined
the cause of death to be consistent with shaking. Gilley was charged with
child abuse homicide.57
Nine months later, prosecutors offered Gilley a deal: plead no contest
to a lesser charge in exchange for 150 days in jail and three years’ probation.
According to the prosecutor handling the case, the baby’s death was “a tragic
mishap.” Facing a possible life sentence if convicted of the top count, Gilley
agreed. Though her baby had not been a well child (requiring five hospital
visits in just two months), Gilley opted not to challenge the SBS diagnosis.
In open court, she conceded that prosecutors had enough evidence to convict
her of shaking her daughter to death, per the no-contest plea. Still, Gilley told
the judge, she was innocent.58
Amy Johnson
In 1994, when Amy Johnson was accused of shaking a two-month-old in her
care, the triad was considered pathognomonic of violent shaking. At the time,
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no real questions had been raised about the scientific underpinnings of SBS.
And doctors did not, as a matter of course, consider the “differential diag-
nosis” that now includes a wide array of alternatives to abuse. The old, rigid
interpretation of the triad was for all practical purposes uncontested.59
The infant’s parents brought her to a St. Louis hospital one evening after
noticing that she was listless. When doctors diagnosed SBS, Johnson, who
had cared for the baby throughout the day, became the suspect.60 She was
soon charged with assault and held in jail. A year later, Johnson pleaded guilty
in exchange for a probationary sentence, which she successfully completed in
2000. She moved to South Dakota.
The young girl never recovered from the neurological problems experi-
enced in infancy. When she died at the age of thirteen, the state held Johnson
responsible for the death. Eight years after her plea, now the mother of three
children, Johnson was charged with murder. The prosecution again alleged
that, back in 1994, the caregiver shook the baby in her care, ultimately—
thirteen years later—resulting in her death.
There is no statute of limitations on murder, and the elements of the crime
are different from the assault to which she had already pleaded guilty. So pros-
ecutors chose to proceed. Johnson faced up to thirty years in prison if con-
victed, but she was offered a deal: plead guilty to manslaughter in exchange
for a prison sentence that, with the time already served on the assault charge,
would make her parole eligible in about five years.61
The prosecutor handling the case said he was confident that he could
prove shaking was the cause of death, noting that a trial jury would hear about
Johnson’s guilty plea to the assault charge fourteen years earlier.62 Johnson
pleaded guilty, requesting that she be assigned to a prison in her home state,
nearer her young children.63
Shawn Wheeland
Shawn Wheeland was caring for his girlfriend’s five-month-old baby over-
night. According to Wheeland, the baby fell from the couch, became dazed,
and began vomiting. The diagnosis, based on the retinal bleeding and subdu-
ral hematoma, was SBS. The state’s expert, a child abuse specialist, would have
testified to the immediate onset of symptoms.64
But there was no trial. Wheeland, who was arrested and held on
bond, agreed to the terms of the prosecutor’s offer.65 In exchange for the
state dropping the charge of felony assault, Wheeland would plead guilty
to child endangering. The deal would have allowed for the defendant’s
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prompt release, since he had already served most of the negotiated one-year
sentence.66
This all changed, however, when the trial judge received the report pre-
pared by probation officers in anticipation of sentencing. Wheeland would
not admit that he had caused the baby’s injuries. “It’s the ‘I forgot I shook the
baby’ defense,” remarked the judge disparagingly.67 Because the state’s experts
believed that retinal hemorrhages were proof of violent shaking, the judge
found it “a problem” that Wheeland denied responsibility.68 Based on his
proclamations of innocence, the judge decided to sentence Wheeland to two
years in prison, instead of the one.69
Wheeland moved to withdraw his plea and exercise his right to a trial.
He argued that he had a new defense to the charge: evidence had emerged
since the plea that the baby’s mother admitted to an acquaintance that she
shook her son “too hard.”70 The judge found hearing testimony to this effect
“singularly incredible,” however, and denied the motion to withdraw the
guilty plea.71 In April 2006, Wheeland was sentenced to two years in prison.72
His request to remain free on bond pending an appeal of the decision was
refused.73
Nearly a year later, however, an Ohio appeals court reversed the trial judge’s
ruling, finding that it was reversible error not to allow Wheeland to withdraw
his guilty plea. “Under the circumstances,” held the court, “it is clear that the
witnesses’ testimony coupled with [Wheeland’s] continued denials of harm-
ing the baby are ‘significant enough to constitute a reasonable and legitimate
basis’ ” to withdraw the plea.74
For Wheeland, the decision came too late. He had already served his
two-year term and been released from prison months earlier. With the plea
to the felony now withdrawn, the state made yet another offer—this time, a
misdemeanor with the time already served—and Wheeland agreed.75
Laura DeVita
In February 2007, Laura DeVita, a New Jersey postal worker, called 911 to
report that her son had stopped breathing. Based on the triad, doctors sus-
pected that the baby had been shaken, and DeVita was charged with child
endangerment. DeVita denied shaking the child. “Any injuries that may have
occurred must be the result of an accident that they are unaware of,” her law-
yer maintained. Upon the infant’s death, an autopsy found “traumatic brain
injury indicative of shaken baby syndrome,” and prosecutors charged DeVita
with aggravated manslaughter. She faced thirty years in prison.76
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Four years later, still insisting that she was innocent, DeVita opted to plead
guilty to child endangerment in exchange for prosecutors dropping the aggra-
vated manslaughter count. The mother of three was sentenced to three years
in prison. As the judge noted, DeVita’s incarceration would subject her chil-
dren to “a hardship impossible to quantify.” But compared to the decades she
would spend locked up if convicted after trial, the sentence imposed on the
negotiated plea would somewhat mitigate this hardship.77
Nyemah Nickens
When Nyemah Nickens, of New York City, was arrested in September 2010
for violently shaking her seven-month-old daughter, the Queens County
District Attorney issued a statement: “Instead of protecting her help-
less, innocent child, the defendant is accused of tragically assaulting her.”78
According to the prosecutor, Nickens was at her boyfriend’s home when she
shook the baby to stop her crying. The next morning, Nickens found the
infant unresponsive.
At the hospital, doctors found a subdural hematoma, “widespread”
brain swelling, and retinal hemorrhages. “Given the severity of her injuries,”
reported the District Attorney, “doctors said that the symptoms of brain
injury (including lethargy and non-responsiveness) would have occurred
immediately, and that her injuries are consistent with the non-accidental
trauma of shaken baby syndrome.” Nickens, a day care worker, was arrested
and charges were soon upgraded to murder in the second degree when the
baby died.79
From the outset, Nickens maintained her innocence. At the hospital, she
suggested to doctors that her boyfriend had caused the baby’s injuries. The
next day, however, after five hours of police interrogation, Nickens, whose
learning disabilities had been documented, confessed to shaking. She later
said that she did so under duress, because she was “confused and desperate to
see her baby,” who was still alive when she was being questioned.
While in jail awaiting trial, Nickens once again asserted her innocence
and again insisted that her boyfriend, Tyree Wright, who in the past had been
physically violent toward her and her baby, must have been responsible for
the infant’s injuries. A spokesperson for the New York Police Department
stated simply that “during the course of the investigation Mr. Wright was
interviewed and found not to be a suspect in the death of the infant.”80
In March 2012, Tyree Wright was arrested in Brooklyn, New York, for
the death of another girlfriend’s two-year-old.81 The state alleged that the
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defendant had beaten the toddler and bounced him from the bed, causing
his head to hit the floor, while the child’s mother was at work. Wright appar-
ently admitted to the police that he hit the boy because he was crying.82 Still,
the Queens District Attorney’s office proceeded. According to the prosecutor
handling the case against Nickens, “The Wright case involves physical abuse,
not baby shaking, so I can’t say immediately that I see any real link.”83
Nickens continued to assert her innocence. But, two months later, pros-
ecutors made an offer that she accepted. In May 2012, after serving close to
two years in jail, Nickens agreed to plead guilty to manslaughter in exchange
for the state dropping the murder charge. Sentenced to ten years incarcera-
tion, she would be eligible for parole in about five years.84 Had Nickens been
convicted after trial, she faced life in prison.
The Meaning of Lopsided Pleas

In cases that involve steep sentencing discounts, a defendant might well forego
the opportunity to prevail at trial.85 Considering the odds of conviction and
the sentence to follow, the certainty of a relatively short jail term is tempting,
at the very least. The defendant might well take into account that, since the
beginning of the investigation, the medical evidence was presented as irrefut-
able evidence of guilt. It is not hard to imagine how one could abandon hope
that, in the end, a different truth would be accepted.
Years ago, when the triad was considered proof positive of guilt by shak-
ing, defendants were seldom in a position to engage in this balancing. Now,
prosecutors—less sure that juries will convict—are more willing to offer terms
favorable to the defense, which defendants may be hard-pressed to decline.
Even though the SBS diagnosis has in theory softened, defendants still con-
front distinct risks in taking their cases to trial. The state’s medical experts,
invoking science, will express certainty about the meaning of this triad; there-
fore, the likelihood of conviction remains substantial. This is true even when
defense medical experts will testify to an alternative cause of death or injury.
If a jury convicts, a lengthy prison sentence will probably be imposed. When
the state’s offer is a good one, an innocent might well plead guilty.
If the triad alone no longer proves guilt beyond a reasonable doubt,
one would expect prosecutorial charging decisions to adapt accordingly.
In the interim, dramatic bargaining discounts may allow, for now, a far less
noticeable shift. Less noticeable because pleas bring about institutional clo-
sure: without a searching examination of the facts, the case is resolved. This
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may be an intractable feature of our criminal justice system. But significant

discrepancies between negotiated sentence and likely outcome after trial raise
distinct concerns. Especially where these discrepancies recur, they signal a
potential problem—not only for the individual case, but also for the system’s
capacity to respond to new knowledge. Given the nature of plea bargaining,
all of this remains largely unseen. Lopsided pleas provide an outlet for doubts
about the triad as a marker of guilt, enabling the system, even while faltering,
to stay the course.
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9 THE LIMITS OF JUDICIAL REVIEW
Once a defendant is found guilty of shaking a baby, the odds that

the judgment will be undone are slim. Except under unusual cir-
cumstances, defendants seeking to vacate a conviction are unsuc-
cessful. This is true whether the claim for relief is framed as a direct
appeal or as a petition for collateral review.
There are legitimate reasons for the presumptive finality of
criminal convictions. Especially in the SBS context, however, this
norm collides with the realities of scientific progression. Where a
category of convictions rests on a medical theory that has evolved,
the law’s hostility to reopening old cases is particularly troubling.
Legal barriers to post-conviction relief lock in a version of the
diagnosis that has been discarded. Because that diagnosis was pre-
viously said to prove the crime, the law’s rigidity comes at a substan-
tial cost to justice.
At some point, this cost becomes intolerable, as evidenced by the
occasional unraveling of SBS convictions. But judicial reassessment
of the triad does little good for defendants who lack the resources
to seek relief. And, again, those who do move for new trials rarely
prevail, even when their guilt was established by scientific claims
that are no longer credible. Failed efforts to challenge triad-only
convictions may tell us more about the inertia of our criminal jus-
tice system than they do about guilt.
Sufficiency Challenges
Defendants can challenge the sufficiency of evidence at various
procedural stages, including when the prosecution rests, at the con-
clusion of the entire case, after a jury has convicted, and on appeal.
The standards for deciding these motions may vary slightly, but the
basic principle is this: a case is sufficient only if, given the elements
of the crime charged and the proof presented, a reasonable jury
could be convinced of the defendant’s guilt beyond a reasonable
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doubt. Judges are charged with ensuring that a criminal conviction rests on a
firm evidentiary base.
As the U.S. Supreme Court proclaimed nearly fifty years ago in In Re
Winship, the “beyond a reasonable doubt” standard is rooted in the constitu-
tional guarantee of due process; it is “basic in our law and rightly one of the
boasts of a free society.”1 Requiring solid proof serves an important function
in protecting innocence, “safeguard[ing] men from dubious and unjust con-
victions, with resulting forfeitures of life, liberty, and property.”2
As the Winship Court explained, an insistence on proof beyond a reason-
able doubt serves this end by its deliberate allocation of the risk of factual
error.3 Because the trier of fact must reach “a subjective state of certitude of
the facts in issue,” the standard “provides concrete substance for the presump-
tion of innocence—that bedrock ‘axiomatic and elementary’ principle whose
‘enforcement lies at the foundation of the administration of our criminal
law.’ ”4 The proof requirement is “vital,” stressed the Court, since it serves as
a “prime instrument for reducing the risk of convictions resting on factual
error.”5
Apart from a defendant’s stake in the criminal prosecution, which is an
“interest of transcending value,”6 we all have reason to care that convictions
rest on nothing less than proof beyond a reasonable doubt.7 The Winship
Court realized that “to command the respect and confidence of the commu-
nity in applications of the criminal law,” the standard is “indispensable”:
It is critical that the moral force of the criminal law not be diluted
by a standard of proof that leaves people in doubt whether innocent
men are being condemned. It is also important in our free society
that every individual going about his ordinary affairs have confi-
dence that his government cannot adjudge him guilty of a crimi-
nal offense without convincing a proper factfinder of his guilt with
utmost certainty.8
Criminal law theorists have different ideas about how “beyond a reason-
able doubt” should be interpreted.9 But there is considerable agreement: the
standard is weighted to protect innocence and is significantly higher than its
civil analogue. In a seminal treatment of the subject, legal scholar Barbara
Underwood explained:
In civil cases, the location of the burden of persuasion may vary from
one issue to another, and its weight is usually proof by a preponderance
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The Limits of Judicial Review • 175
of evidence. . . . [T]hat means a factual dispute is too close for decision

if the two sides are in equipoise; in that event, neither side can be
said to have a preponderance of the evidence and therefore the party
with the burden loses. In criminal cases, the burden of persuasion . . . is
placed on the government, and the weight of that burden is proof
beyond a reasonable doubt. Under a reasonable doubt rule the zone of
uncertainty is larger; so long as the evidence is not overwhelming, the
dispute is too close for decision.10
“Beyond a reasonable doubt” is a far different standard from a “reasonable

degree of medical certainty,”11 which is what doctors in SBS cases typically
offer. It is unclear how the two measures compare,12 or whether testimony
from a doctor (or many doctors) to the lesser degree of certitude can, without
more, establish greater certainty.
Judges in SBS cases have yet to pursue this inquiry, summarily dispens-
ing with the insufficiency claims of SBS defendants. The case of Aritzaid
Santiago illustrates the standard legal treatment.13 According to a Texas
appellate court,
Santiago argues the testimony of medical experts from both sides is

conflicting, and therefore, insufficient to support the conviction. We
disagree. When presented with inconsistent testimony, it was within
the jury’s purview to determine the credibility of the testimony.
Especially in cases such as this, with conflicting expert testimony, we
are not at liberty to say the jury should have believed Santiago’s expert
over the State’s expert, when both opinions were based on probative
evidence.14
When considering an insufficiency claim on appeal, the evidence must be

viewed in the light most favorable to the prosecution. The court in essence
credits the testimony of the prosecution experts—regardless of whether
defense experts presented an entirely different account—and affirms the
verdict if the cumulative evidence, however contested, could reasonably
support it.
Our legal system thus is ordered in a way that almost guarantees the con-
tinued non-receptivity of courts to insufficiency claims of SBS defendants.
As long as the state’s version of the diagnosis could be used to establish every
element of the charged crime, judges do not overturn a guilty verdict. The
routine denial of these appeals seems almost inevitable.
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Tiffany Calise
Tiffany Calise was convicted in 2011 of killing a child in her care, based on
the triad.15 A year later, she challenged the sufficiency of the evidence against
her, noting that “studies have cast doubt on the legitimacy of shaken baby syn-
drome.” At Calise’s trial, the state presented the testimony of four experts who
dismissed the possibility that, as the caregiver described, when she momentarily
went for a towel, the toddler—who was nearly two years old at the time—fell
from a standing position in the bathtub. The state’s doctors each explained that
the child’s subdural and retinal hemorrhaging were clearly the result of abuse.
A bathtub fall could “absolutely not” have caused the toddler’s neurological
damage, emphasized the pathologist. Indeed, according to the child abuse
specialist and director of the hospital’s child protection team, the triad specifi-
cally resulted from a violent and repetitive whipping back and forth.
Given this “extensive” expert testimony regarding the triad, an Ohio
appellate court concluded that the evidence was sufficient for a rational trier
of fact to find Calise guilty beyond a reasonable doubt. Notwithstanding the
defendant’s introduction at trial of competing expert testimony that sup-
ported her version of events, the verdict was affirmed.16
When she was convicted of murder, Calise was twenty-one years old and
the mother of a toddler. She is now serving a life sentence.
Samantha Anne Mitchell

Samantha Anne Mitchell is an Arkansas woman convicted of the 2006 mur-
der of a four-month-old infant in her care.17 The baby presented with subdural
bleeding, cerebral edema, and bilateral hemorrhages, which, according to the
four prosecution experts, occur almost exclusively in babies who have been
shaken. Nothing in the appellate opinion indicates that alternative causes of
death were considered. Instead, doctors advanced a virtually pathognomonic
version of the diagnosis (excepting the “mimic” of a high-speed car accident),
and they foreclosed the possibility of a lucid interval. The state also intro-
duced a video depicting the mechanics of shaking and the resulting injuries.18
The defendant, a mother of two young children, consistently main-
tained that she discovered the baby slumped over in his swing. On appeal,
she claimed that the evidence was insufficient to prove guilt. The Arkansas
appeals court rejected this argument, adopting the standard rationale: “Given
the jury’s exclusive function of determining the credibility and weight to be
given to the State’s proof, we cannot conclude as a matter of law that it was left
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to speculation and conjecture based upon the type and severity of the injuries
sustained by [the baby] in her care.”19 Mitchell continues to serve her sentence
of twenty years in prison.
Darra Barritt
Darra Barritt was convicted in 2006 of assaulting her two-month-old daugh-
ter and sentenced to twelve years in prison.20 Barritt and her infant were vis-
iting the medical office of Barritt’s parents when the baby began seizing.21
Radiology scans revealed the presence of the triad, and doctors concluded
that she had been shaken—“the classic case of shaken baby syndrome,” one
called it.22 Barritt was soon charged.
A year after she was convicted, the appeals court in Arkansas rejected the
defendant’s argument that the evidence was insufficient to support her con-
viction. The court cited the trial testimony of four prosecution experts that
“only non-accidental traumatic injury consistent with shaking” could cause
the baby’s neurological symptoms. Barritt’s defense was that the infant suffered
from cerebral venous thrombosis (CVT), which may have been aggravated by
the respiratory virus (RSV) for which she had been hospitalized weeks earlier.23
Despite the suggestion of an innocent explanation for the baby’s injuries,
the prosecution’s doctors remained unconvinced, as they could find no “defi-
nite” evidence of CVT.24 The appellate court emphasized just this: “Although
Mrs. Barritt presented her alternative theory that the child’s injuries could
have been due to cerebral venous thrombosis through testimony from her
expert[,] . . . medical experts testifying for the state disagreed with that possi-
bility. The applicable standard leaves to the finders of fact whether the circum-
stantial evidence is adequate to reject hypotheses consistent with innocence.”25
Given the constraints of direct appellate review, it is difficult to know
how evidence of CVT and RSV would be evaluated today, or whether the
baby’s seizures could have been caused by factors not considered in the state’s
doctors’ “differential diagnosis.” On direct appeal, a defendant cannot sup-
plement the trial record, even if such augmentation would bolster a case for
innocence. This makes the appeal an especially poor vehicle for the claims of
an SBS defendant who failed to present the strongest possible medical case
at trial, regardless of the reasons: because the defense lawyer was incapable of
mounting an effective challenge to the testimony of the prosecution experts;
because the attorney did not procure qualified experts from the right special-
ized fields of medicine; or because a legitimate medical defense only became
apparent with the advance of science.
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Jennifer Del Prete

When Jennifer Del Prete, the Illinois caregiver (chapter 1), appealed her 2003
conviction, her effort to expand the record met with the court’s reminder that
“those materials are not properly before this court and will not be consid-
ered. . . . There are other methods available to defendant to assert newly dis-
covered evidence as a basis for a new trial.”26
The Illinois appeals court readily dispensed with Del Prete’s sufficiency
claim. After setting forth the applicable legal standard for review, the court
concluded that the evidence could sustain a guilty verdict (in this case, by a
judge). Put simply, “[t]he trial court had before it the conflicting opinions
of expert witnesses. The opinion of the State’s expert supported a finding
of guilty. The opinion of the defendant’s expert supported a finding of not
guilty. It was for the trial court, as trier of fact, to resolve those conflicts. The
trial court, in its discretion, was free to accept the testimony of the State’s
expert and reject the testimony of the defendant’s expert.”27
Shirley Smith
One defendant accused of SBS prevailed—but only fleetingly—on a claim of
insufficiency. Her case underscores the additional challenges faced by defen-
dants petitioning a federal court to overturn a conviction that was upheld by
a state court.
Shirley Smith was convicted of shaking to death her seven-week-old grand-
son and sentenced to fifteen years to life.28 She failed at the appellate level. In
rejecting her contention that no reasonable jury could have convicted, the
California appeals court offered the accepted rationale: the evidence pre-
sented by the state and the defense “was conflicting. It was for the jury to
resolve the conflicts.”29 As we have seen, this is par for the appellate course.
After exhausting avenues for relief at the state level, Smith pressed her
insufficiency claim in a petition for federal habeas relief, a procedural mecha-
nism that allows a court to vacate a conviction obtained in violation of the
U.S. Constitution or federal law. Among other grounds, SBS defendants may
seek habeas relief based on a lack of evidence at trial, which implicates due
process guarantees.
In many ways Shirley Smith’s case is extraordinary. Not only did she
persuade a federal appeals court that “there has very likely been a mis-
carriage of justice in this case.”30 But the case reached the U.S. Supreme
Court—three times,31 ultimately resulting in the reinstatement of the
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conviction.32 In a final twist without precedent, California Governor Jerry

Brown granted Smith clemency in the spring of 2012.33 After fifteen years,
efforts to vacate her conviction ultimately proved unsuccessful. Even in the
weakest of cases, sufficiency claims have little traction where experts are
willing to testify to guilt.
Smith’s prosecution was not even based on the full triad. The medical evi-
dence showed an absence of retinal bleeding. Pathologists found “no swelling,
and only a small, non-fatal amount” of subdural and subarachnoid bleeding.
But the criminal case against Smith looked in other ways like a typical SBS
prosecution. There were no bruises on the baby’s body, no fractures, and no
grip marks. Smith had no explanation for her grandson’s collapse; he was dis-
covered in an unresponsive state. Her acknowledgment that she had given
the baby a “jostle” to rouse him was portrayed as evidence of guilt. But it was
the testimony of prosecution experts, certain this was abuse, that was, in the
court’s words, “absolutely critical” to the state’s case.34
Federal habeas review of the sufficiency of state judgments is governed by
a most deferential standard.35 Even so, a three-judge panel of the U.S. Court
of Appeals for the Ninth Circuit concluded that the evidence against Smith
could not sustain the verdict. Unwilling to simply credit the testimony of the
three prosecution experts, the court instead asked whether their conclusions
were justified. On analysis, the diagnosis was found wanting, notwithstand-
ing the doctors’ confidence in its correctness.
As the court assessed the evidentiary record:
All of the prosecution witnesses based their opinion of Shaken Baby

Syndrome on their hypothesis that violent shaking had torn or sheared
the brain stem in an undetectable way. . . . [T]hey reached this conclu-
sion because there was no evidence in the brain itself of the cause of
death. Thus . . . the tearing might have occurred or it might not have
occurred; there simply was no evidence to permit an expert conclusion
one way or the other on the point.36
Evaluating the expert opinions with a view toward ensuring that they
were based on evidence, the court concluded, “this is simply not the stuff
from which guilt beyond a reasonable doubt can be established.”37 In this
respect, the court insisted on what might be conceived as evidence-based
prosecution and conviction.
When the U.S. Supreme Court issued its opinion five years later, it over-
turned the Ninth Circuit. Federal law authorizes the reversal of a state court
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decision rejecting a sufficiency challenge only if the decision is “objectively

unreasonable.” Given this almost impossibly high bar, the Ninth Circuit was
said to have erred. Smith may indeed have been wrongly convicted, as the
Supreme Court acknowledged. Even so, she was without recourse, given the
greater perceived importance of finality and the proper allocation of state/
federal judicial power. In the Supreme Court’s formulation, “Judges will
sometimes encounter convictions that they believe to be mistaken, but that
they must nonetheless uphold.” Though the conviction would have to be rein-
stated, “doubts about whether Smith is guilty are understandable.”38
Three justices dissented, observing, “what is now known about shaken
baby syndrome (SBS) casts grave doubt on the charge leveled against Smith.”39
Citing medical research, the dissent described changes in scientific under-
standings of SBS—changes that had occurred since Smith’s trial in 1997: the
discovery of flaws in the evidentiary basis for the diagnosis;40 questions about
whether infants can be fatally injured through shaking alone;41 biomechanical
challenges to the shaking hypothesis;42 inclusion of short falls on the differ-
ential diagnosis;43 and growing awareness of alternative causes of the triad.44
When Governor Brown granted Smith’s petition for clemency, the first
such grant of his term, he explained that “significant doubts surround[ed]”
the conviction.45 At the time, having been released from prison following
the Ninth Circuit’s reversal of her conviction, Smith was living in a small
Minnesota town with her daughter, Tamika, and two teenage grandchildren.
Tamika, the mother of the baby allegedly shaken to death by Smith, always
believed in her mother’s innocence. “There’s no possible way she could’ve done
what they say,” Tamika insisted. “If I had any doubt about that, I would’ve
wanted her prosecuted to the fullest extent of the law.”46
Smith, who had served more than eight years in prison, responded to news
of the governor’s decision with understandable emotion. “I just can’t believe
this is finally over with,” she cried,47 and expressed the greatest relief that she
would remain free. “Prison is so horrible. It’s just so horrible. It becomes even
more horrible when you don’t belong there.”48
That Smith did not belong in prison became increasingly apparent with
the discovery of new medical evidence bearing on the baby’s death. Early in
2012, the Los Angeles coroner’s office began an internal process of reviewing
the autopsy in the case.49 After examining the original report, tissue slides,
and other forensic evidence, a senior pathologist concluded that the cause of
death should be reclassified as undetermined. The baby’s brain injuries were
relatively minor, perhaps due to birth trauma, and unrelated to the death.
The original report missed signs often associated with Sudden Infant Death
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Syndrome (SIDS): the baby’s lungs were speckled with tiny blood spots called
petechiae. This, coupled with the fact that the baby was sleeping face down
on a couch cushion when he lost consciousness, should have led the autopsy
examiner to suspect SIDS. The “bottom line,” wrote the reviewing patholo-
gist, is that “there was head trauma, but we don’t know when it happened
or how it happened. We don’t know if it’s related to the cause of death. The
conservative approach would be to acknowledge these unknowns.”50
From the beginning, the efforts of Smith’s defense attorney were largely
ineffectual. As would later be described by the dissenting Supreme Court
Justices, Smith’s counsel “represented her poorly at trial.”51 The discovery of
exculpatory evidence not available at the time of trial raised the prospect that
Smith was convicted on evidence that was not only weak but also misleading
as to the cause of the baby’s death.
Consider one more case involving a claim of insufficiency. In 1999, an appeals

court rejected the appeal of a caregiver convicted a few years earlier of shaking
to death a seven-month-old infant. The jury “could have concluded” that the
woman wanted to quiet the baby and that her shaking response was “exces-
sive,” concluded the court, given that the child’s “injuries were extremely
severe.” On this point, the court emphasized that the infants “retinas had
been torn from the backs of her eyes and force similar to falling from a second
story window had been applied to her.” In short, there was enough evidence
for the jury to find the defendant guilty of homicide. She would continue to
serve her eighteen-year sentence.52
It would take almost another decade (and a different legal theory) for the
Wisconsin caregiver, Audrey Edmunds, to see her wrongful conviction come
undone (Chapter Two).
Collateral Attack
When a defendant attacks a conviction on collateral grounds, procedural bars
often require a showing of actual innocence before the substantive claim will
be heard. Even where this is not the case, a defendant’s burden is substantial.
At the risk of oversimplifying the tremendously complicated law of federal
habeas corpus and most state post-conviction regimes, a conviction will be
vacated only if a judge essentially determines that the probable outcome of a
new trial would be an acquittal.53
Barriers to post-conviction relief pose particular difficulties for SBS
defendants.
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Newly Discovered Evidence

After a defendant is convicted based on the triad, fresh expert review of the
baby’s medical records often leads to a different understanding of what went
wrong. This typically occurs upon the appointment or retention of new coun-
sel. In these cases, the newly discovered evidence motion is an obvious mecha-
nism for relief.
Post-conviction review of the infant’s medical records by a new defense
expert can reveal an alternative explanation never even presented to the
jury. Perhaps the state’s doctors never meaningfully considered non-abusive
causes. In the intervening time, medical explanations for the baby’s condi-
tion might have surfaced. If the defendant was without expert witnesses (or
without experts from the right specialty) at trial, the discovery of a new medi-
cal theory after conviction becomes all the more likely. Where new evidence
probably would have led to an acquittal, the defendant may be entitled to
have the conviction vacated.
But while the criminal law has become evermore receptive to DNA evi-
dence, particularly in state court, evidence that is not DNA suffers greatly
by comparison. Because post-conviction litigation occurs in the shadow of
a scientific test for innocence (as DNA is understood), SBS cases have fared
poorly overall.54 Non-DNA evidence, always “tinged with gray tones,”55 is
bound to be more complicated than we would like.56
After her appeal was denied, Alma Calderaro, the Albanian caregiver con-
victed in Queens, New York (chapter 4), argued in state court that new evi-
dence had been discovered.57 The applicable procedural rule, which is fairly
typical, establishes three basic requirements for evidence to be considered
“newly discovered”: it must have been discovered since the trial; it must not
have been discoverable with due diligence before the trial; and it must prob-
ably change the result if a new trial is granted.58
Calderaro’s claim failed. She provided the affidavits of two doctors who
believed that a chronic subdural hematoma, perhaps related to the baby’s
unusual head growth, or “external hydrocephalus,” likely re-bled.59 Even so,
the court determined that the experts who offered this exculpatory medical
theory were “available to the defense at the time of the trial,” in that they could
have been consulted and, had they been, that they would have provided the
same information.60 The evidence therefore was not newly discovered within
the meaning of the rule governing new trials.
Calderaro also contended that, in the three years since her 2009 convic-
tion, “an ever-growing body of articles [had] appeared in the medical literature
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challenging the rote findings of shaken baby syndrome.” This claim was the
essence of Audrey Edmunds’s successful new trial motion, which also rested
on the upending of old SBS. For Edmunds, convicted by a diagnosis that later
foundered, the reconstituted version of the diagnosis—today’s AHT—was
the newly discovered evidence.
In Calderaro’s case, however, the court was not persuaded that this
“new” evidence could not have been discovered with due diligence at
trial. Long before her trial, serious questions about the validity of SBS had
already been raised in medical and legal literature, according to the judge.61
Ironically, the very tenuousness of the evidence used to convict the caregiver
was reason to deny her a new trial. Although scientific movement toward
greater skepticism of the triad’s diagnostic validity continued even after
Calderaro’s 2009 trial, the notion that evidence must be newly “discovered”
did not map well onto this sort of evolutionary process. For SBS defen-
dants convicted more recently than Audrey Edmunds, like Alma Calderaro,
the requisite showing of evidentiary newness can be an unsurpassable
hurdle.
Evidence uncovered after trial in SBS cases looks quite different from
the DNA “gold standard,” and the “newly discovered” requirement of most
post-conviction statutes magnifies the misfit. Moreover, since it cannot pro-
vide a simple yes/no answer to the nagging question of whether this defendant
really is innocent, a plausible non-abusive explanation for a baby’s collapse—
unless it proves innocence—is bound to suffer by comparison.62
Ineffective Assistance of Counsel

Most defendants will lose ineffective assistance motions, even when their con-
victions highlight profound dysfunctionality in our justice system. In far too
many SBS cases, the conduct of both defense attorney and prosecutor seems
to depart from adversarial system norms. Yet the law rarely remedies these
failings.
Alma Calderaro
According to the court deciding Calderaro’s new trial motion, the evidence
that would have tended to exculpate her was technically available at the time
of the trial, but her lawyer did not make use of it. This omission would seem
to bear on the quality of legal representation provided. Defendants who argue
that they received ineffective assistance of counsel often make central their
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lawyer’s failure to call an expert, or the right experts, to offer a medical theory
of the baby’s collapse. Calderaro made this argument too, to no avail.
As the court concluded, her trial lawyer’s strategy—though it overlooked
an entirely non-abusive explanation for the baby’s condition—did not “rise to
the level of constitutional ineffective assistance of counsel.” Calderaro’s peti-
tion was denied.63 When she has served her eight years in prison, she expects
to be deported to Albania, where she will continue to live apart from her
husband and children.
Jennifer Del Prete

In 2010, Jennifer Del Prete, the Illinois caregiver, filed a petition for
habeas relief in federal court, arguing that her lawyer’s performance was
constitutionally deficient.64 Poor lawyering does not entitle a defendant
to relief. Rather, under the U.S. Supreme Court’s decision in Strickland
v. Washington, there must be errors of such magnitude as to undermine the
counsel function, and those errors must undermine the reliability of the
outcome of the trial.65
Despite the fact that “more qualified experts” would have been able to
challenge the state’s experts’ version of SBS, Del Prete’s lawyer called only one
doctor—one “woefully lacking credentials”—the post-conviction motion
maintained.66 Related to this decision was a fatal strategic error: “trial coun-
sel significantly limited his theory of the defense. The question became one
of ‘When did [the baby] get purposely harmed?’ instead of ‘Was there ever
a purposeful harm?’ In other words, the question was who committed this
crime and not whether a crime was even committed.”67 Del Prete’s attor-
neys contended that this representation fell short of even the low consti-
tutional bar. “Limiting possible defenses, while the most cursory research
would reveal that other, better defenses exist, is the very hallmark of deficient
performance.”68
The case is pending in federal district court.
Beverly Moore
Beverly Moore, the Oklahoma woman serving a life sentence (chapter 4), is
seeking habeas relief based on her lawyer’s failure to investigate the medical
issues. Recall that, during Moore’s 2005 trial, he did not present any medical
experts. He did not introduce medical testimony that the toddler’s symptoms
were likely the result of natural causes or an accident. Nor did he introduce
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evidence that, regardless of the cause of the symptoms, their age in effect
exonerated Moore. As the brief in support of her motion described,
the full panoply of reasons for trial counsel’s failures to investigate and
present this exculpatory evidence may never be completely known due
to his death in 2010 of a drug overdose. However, the primary reason
for defense counsel’s incompetence were the felony criminal charges he
faced in the very same court during the pendency of Ms. Moore’s trial;
a clear conflict of interest for which prejudice is presumed. Even more
egregious, he improperly absconded with money from Ms. Moore’s
trust fund account dedicated to hiring investigators and experts while
trying to avoid anyone finding out about his significant financial
difficulties.69
Before she could move forward on her ineffective assistance claim, Moore
confronted an initial obstacle: her habeas petition was procedurally time
barred.70 To surmount this barrier, she invoked the exception for “actual inno-
cence,” which allows a defaulted claim to proceed if, “in light of new evidence,
no juror, acting reasonably, would have voted to find [her] guilty beyond a
reasonable doubt.”71
Reports from five experts—a radiologist, a pathologist, a neuropatholo-
gist, an ophthalmologist, and a neuroradiologist—were submitted to show
that Moore was innocent. As a whole, this medical evidence substantially
undermined the state’s theory of triad-proven guilt. Defense experts disagreed
with the prosecution doctors on the central question of whether Avery, the
toddler, died from traumatic injury. Nevertheless, as the reviewing court rea-
soned, had these defense experts testified at trial, a jury faced with the con-
flicting testimony could have chosen to credit the state’s witnesses. For this
reason, evidence disputing the existence of trauma did not demonstrate actual
innocence to the court’s satisfaction.72
But the issue of timing raised separate concerns. The prosecution witnesses
established Moore’s guilt by testifying that Avery would immediately have
lost consciousness upon the infliction of trauma—the standard triad-based
time frame. The impossibility of a lucid interval was predicated “at least in
part on the absence of any prior traumatic episodes.” Only after Moore was
convicted did her (new) lawyer find undisputed medical evidence to suggest
that this was an entirely faulty premise.73
Given the toddler’s past medical history, there were a number of indica-
tions that his neurological decline began days, weeks, or months before his
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collapse: a prior diagnosis of “failure to thrive”; the existence of significant

developmental delays; a fall from a porch resulting in “edema [swelling], con-
tusions, and a hematoma;” a fall involving a concrete floor; a fall into a cast
iron tub roughly a week before; and observations of lethargy in the week pre-
ceding Avery’s collapse.74
As the habeas court explained, the toddler could not reasonably be
regarded as in “perfectly fine condition,” which is just what prosecution doc-
tors assumed when making their diagnosis. Moore had presented “new scien-
tific evidence” suggesting that the boy’s earlier falls could indeed have resulted
in the triad of injuries, and showing that lucid intervals in fact exist.75
Further evidence established that the onset of bleeding did not occur
when Moore was alone with Avery, but days earlier. The presence on autopsy
of hemosederin, an iron storage protein complex within the cells, was undis-
puted. But its significance was understood only when a pathologist testified in
the post-conviction evidentiary hearing that hemosederin deposits are “a sign
of past hemorrhage and, because of the time necessary to produce this protein
complex, are indicators as to the time of the original hemorrhage.” Given that
evidence to this effect was not rebutted, the habeas court concluded that a
jury newly evaluating the case would likely determine that the boy’s brain was
already injured days before Moore was alleged to have shaken him.76
There was more. Moore’s experts noted the undisputed presence of
optic disc swelling known as papilledema, which appears only after a week
of increased intracranial pressure and generally indicates a chronic process.
Moore’s experts had also been able to date the dural bleeding to days before
the alleged incident. Finally, the complete breakdown of the auto-regulation
system provided further proof that any trauma could only have occurred prior
to the time frame alleged by the state.77
In short, Avery’s brain was injured well before Moore allegedly caused that
injury. Medical evidence not presented at trial would, as the court put it, “pre-
vent any reasonable jury from finding beyond a reasonable doubt that [the
toddler] had died from traumatic injuries inflicted on [the day in question].
Without such a finding, the jury would have had no basis to find that Ms.
Moore had done anything to cause the boy’s death.”78
Convicted by the triad like so many others before and after her, Moore
had convinced a federal court of her actual innocence. But this did not mean
that she was free; just that she could now proceed to litigate the merits of her
ineffective assistance claim.79
Moore remains in prison while trying to unravel a life sentence that should
never have been imposed.
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Bryon Morales
Byron Morales is serving a sentence of life without the possibility of parole
for murdering his two-year-old son.80 The issue at trial was whether the boy,
Kevin, could have died from a fall down the stairs (as initially reported by
Morales), aggravating preexisting injuries, or whether this was an impossibil-
ity given the toddler’s injuries, as the state’s doctors contended.
When Kevin was brought to the hospital, a CT scan revealed a skull frac-
ture and a large hematoma. Kevin died soon after. Doctor Thomas C., the
neurosurgeon who operated to remove the hematoma; Doctor Donald M.,
the surgeon leading the trauma team; and Doctor Dominic F., the radiolo-
gist who read the CT scan, all concurred: the child’s death was caused by a
chronic hematoma that was re-injured by a recent event. Doctor Thomas B.,
the Iowa State Medical Examiner, disagreed. The brain injuries were acute,
not chronic, he concluded, and listed the cause of death as “[b]lunt traumatic
head injuries from blow to head, due to Shaken-Slammed Baby Syndrome.”81
After Morales was arrested, he hired a pathologist, Doctor Michael B.,
to conduct a second autopsy. According to the panel of the U.S. Court of
Appeals for the Eighth Circuit that would later decide Morales’s habeas claim,
“[b]ecause prosecutor Melodee Hanes had given instructions not to release
Kevin’s medical records to the defense team, however, [Doctor Michael B.]
did not at that time have the medical reports of the emergency room phy-
sicians who diagnosed the hematoma as chronic in nature.”82 Without this
information, Doctor Michael B. agreed with Doctor Thomas B., the Medical
Examiner, that the brain injuries were acute.83
The appellate court described what then transpired:
In December 1995, the county prosecutor’s office arranged a meeting at

[Doctor Thomas C.’s] office that was attended by four prosecutors and
Doctors [Thomas B., Thomas C., and Donald M.]. Morales’s attorneys
were not notified about the meeting. During the meeting, [Doctor
Thomas B.] reported that the microscopic autopsy slides showed that
Kevin’s brain hematoma was acute, not chronic. As a result of [Doctor
Thomas B.’s] conclusions and without examining the slides themselves,
Doctors [Thomas C. and Donald M.] changed their opinions to align
with [Doctor Thomas B.’s] opinion that the injury was acute.84
At trial, the prosecution experts testified consistently with one another, and
in keeping with the conclusion of Doctor Thomas B., the Medical Examiner.
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Seven doctors, including Doctors Thomas C. and Donald M., explained that
Kevin’s injuries could not have been caused by a fall down the stairs, even with
a concrete wall at the bottom. One doctor said that the boy’s head was either
struck by an object or struck by a fixed object while moving rapidly. Another
suggested that the toddler was likely shaken, then slammed into an object. The
retinal hemorrhages were said to be “nearly pathognomonic of non-accidental
injury.” The force was akin to a fall from a third or fourth story window or a
serious motor vehicle accident. The only doctor to testify about the micro-
scopic slides was Doctor Thomas B. The court later suggested that this was
“perhaps due in some part to Morales’s trial counsel’s failure to discover them.”
(The slides were destroyed while Morales’s appeal was pending.) The jury did
not hear about the meeting that caused two doctors who had seen old bleed-
ing to disavow their opinions regarding the cause of Kevin’s death.85
To state the rather obvious, the proceedings were tremendously flawed. As
the Eighth Circuit noted, “[e]very court that has reviewed this case has been
struck by certain aspects of the trial and actions of prosecutors that violate
the fundamental notions of fair play on which our legal system is based.”86
In the course of considering Morales’s habeas claim, the court provided this
summary of the “most egregious errors”:
A prosecutor instructed that evidence be withheld. Prosecutors

arranged a meeting between the Medical Examiner and treating phy-
sicians, arguably to impact their trial testimony to be more consis-
tent with that of the Medical Examiner. Important microscopic slide
evidence, relied upon by the Medical Examiner, was not pursued by
defense counsel or produced by the prosecution during the trial, and
the slides were destroyed while the case was on appeal. Similar opin-
ions by this Medical Examiner, often based upon such slides, have
arguably been discredited in other cases. The treating surgeon has now
recanted his trial testimony, at least to the extent of placing any reli-
ance on the opinions of the Medical Examiner. Defense counsel failed
to pursue the slides, failed to interview treating physicians before their
trial testimony, failed to investigate the Medical Examiner even by sim-
ply networking with other defense lawyers, failed to pursue the meet-
ing between the Medical Examiner and other physicians in relation
to their apparent change in position at trial from their prior reports,
failed to make objections necessary to preserving a record for appeal,
and failed to make an adequate offer of proof regarding the romantic
relationship between a prosecutor and the Medical Examiner.87
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And yet, the court affirmed the denial of Morales’s habeas claim. It did not
mince words regarding its assessment of the prosecutor’s conduct, remarking
that “[l]ike the courts preceding us, we are troubled by these incidents and
add our condemnation of such practices.” Nor did it pretend that the perfor-
mance of Morales’s trial lawyer was adequate, finding the “list of errors . . . dis-
turbing.” However, Morales’s claims with respect to each of these failures were
rejected. There was “support for the state courts’ determination that the over-
whelming evidence of Morales’s guilt overcame the defects in his criminal
proceedings.” Since it was not unreasonable to reject the petition, the highly
deferential standard of review required the federal court to affirm, even if it
“perhaps” would have reached a different result.88
This logic captures the formidable challenges that confront a habeas peti-
tioner. Because the law allows “overwhelming” evidence of guilt to overcome
overwhelming procedural defects,89 a court must evaluate a trial record in
an entirely counterfactual manner—as if the record didn’t itself result from
those very defects. The court was primarily swayed by the fact that “no less
than seven doctors testified that Kevin’s injuries were not consistent with a
fall down stairs—Morales’s defense theory.”90 This testimony was described
without any mention of its source in problematic advocacy on both sides.
Under the law of federal habeas, the trial evidence is considered quite apart
from its origins in a tainted process.
This seems especially odd in a case like this, where the state withheld
exculpatory evidence before a second autopsy was performed, where treating
doctors’ opinions were reversed after an undisclosed post-arrest collabora-
tion between prosecutors and the medical team, and where defense counsel
failed to investigate these irregularities. Because of the quantum of evidence
admitted against Morales, these errors did not entitle him to a new trial, even
though the procedural deficiencies in this case might be expected to yield just
the seemingly indisputable proof that would foreclose relief.
Regarding Morales’s ineffective assistance of counsel claim, according
to the Eighth Circuit, the test announced by the U.S. Supreme Court in
Strickland v. Washington was not satisfied.91 Strickland requires not only a
highly deficient performance by defense counsel, but also a showing of prej-
udice.92 In Morales’s case, the court held that this prejudice component (as
opposed to the deficient performance prong) was not established. Here, as
well, the “overwhelming” evidence against Morales precluded a finding of
prejudice.93
Morales also advanced a Brady claim. (Brady v. Maryland is the seminal
U.S. Supreme Court case establishing a prosecutorial obligation to disclose
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potentially exculpatory evidence.94) The court rejected this claim too, because
Morales did not demonstrate a reasonable probability that the evidence with-
held would have produced a different verdict, given—yet again—the state’s
experts’ unequivocal testimony against him at trial.95
The appellate opinion affirming Morales’s habeas denial drew a dissent,
which is unusual. “There is no overwhelming evidence of guilt in this case,”
declared the dissenting judge, adding, “[t]he jury never heard the com-
plete medical facts.”96 Further, had defense counsel investigated the cause of
the doctors’ shift in course, not only would the state medical examiner have
been discredited, but so would “the prosecution itself in this case.”97 When
the county attorney’s questionable conduct was juxtaposed with the defense
attorney’s utter failure to uncover it, “any confidence in the verdict against
Morales” was undermined.98
In a post-conviction relief hearing held before the court denied the habeas
petition, Doctor Thomas C., the neurosurgeon who operated on Kevin, testi-
fied that his initial impression was in fact correct: the blood clot he saw dur-
ing surgery was of a consistency that meant it was old.99 This corroborated
the radiologist’s initial reading of the CT scan. Difficult as it is to revise an
opinion, particularly one committed to sworn testimony, Doctor C. was no
longer willing to fall in line with Doctor Thomas B., the Medical Examiner.
Doctor C. added that he no longer trusted Doctor B., whose “testimony in
other child abuse cases has come into question because I think he’s just a bit
overzealous in his opinion giving.”100 And Doctor C. reiterated what he had
first concluded: that Kevin’s was the type of injury that could re-bleed with
little trauma—certainly, a fall down a flight of stairs would qualify—causing
death.101
Morales petitioned for review of the panel’s ruling by the full Eight Circuit
and, when this was denied, asked that the U.S. Supreme Court intervene. This
request was also denied.102 It seems Morales will be spending the rest of his life
in prison.
Brandy Del Briggs

As we have already seen, against the odds, select defendants are able to obtain
collateral relief. Most of these reversals involve convictions after trial. But in
one unusual habeas case, an appeals court vacated the guilty plea of a defen-
dant whose case for innocence was inadequately pursued by her trial law-
yer.103 At the time, Brandy Del Briggs was serving a seventeen-year prison
sentence.104
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The state alleged in 2000 that Del Briggs shook to death her two-month-old
son, Daniel. By all accounts, Daniel had been a sick child since his birth. His
medical problems included a urinary infection that led to sepsis, breathing
problems, and repeated choking incidents. Del Briggs had taken Daniel to
doctors and hospitals five times before he was two months old. Still, as the
appeals court would later describe, “the underlying cause of Daniel’s fussiness
and his birth defect were undiagnosed.”105
When Del Briggs called 911 to report that her son was blue and limp,
EMS quickly responded and took the baby to a Houston hospital, where
emergency room personnel attempted to reintubate him. According to the
appellate court, “[i]n doing so, they accidentally placed the tube into his
esophagus instead of his trachea, and they did not discover their error until
x-rays were taken approximately thirty minutes later. By that time, Daniel
was cyanotic [his skin had turned a bluish color] because his brain had
received ‘insufficient’ or no oxygen during that thirty-minute period.”106
There was no evidence that Daniel’s parents were ever told of this faulty
intubation.107
The baby was later transferred to a children’s hospital, where retinal hem-
orrhaging was discovered. He died several days later. The pathologist con-
cluded that the death was a homicide—though, after a subsequent review,
the official autopsy report was later amended to indicate that the cause of
Daniel’s death was “undetermined.” Based on the initial determination, how-
ever, Del Briggs, who failed a polygraph test, was charged with murdering
her son.108
Del Briggs had dropped out of school in the eighth grade, worked in a res-
taurant, and could scarcely afford living expenses. She was not in a position to
pay her lawyer, much less the experts that would cost up to $7,500. In October
2000, Del Briggs pleaded guilty, with the sentence left to the judge’s discre-
tion. A pre-sentence investigation report stated that the defendant “consis-
tently denied that [she] did anything wrong and the only reason [she] pled
guilty was because her lawyer forced [her] to do it.” Del Briggs later told the
judge that she shook her baby after panicking when she found him limp and
blue. She was sentenced to a seventeen-year term.109
The sentencing judge found Del Briggs’s later assertions of innocence “not
credible,” noting her “consciousness of guilt” testimony at the sentencing
hearing.110 But the appeals court saw this same testimony differently, observ-
ing that “it would not necessarily be surprising that a seventeen-year-old
eighth-grade drop-out mother would feel responsible for her infant son’s
death, especially if she was unaware of her child’s birth defect (which was not
10_9780199913633.indd 191 1/29/2014 1:12:29 PM

diagnosed until 2003 by the Harris County Chief Medical Examiner) or of

the faulty intubation at [the] hospital.”111
Years after the trial, when Del Briggs’s new lawyer found experts to inves-
tigate the medical records, the cause of death emerged. The shared opinion of
her medical experts, as the appellate court summarized it, was that “Daniel
died from an undiagnosed birth defect which led to a raging urinary infec-
tion, then to sepsis and severe pneumonia, made worse by the faulty intuba-
tion which led to brain death.”112
Based on the new evidence and a review of the trial record, the appeals
court vacated the trial court’s decision to deny Del Briggs’s habeas petition,
concluding that she had received ineffective assistance of counsel. The defense
lawyer’s performance was constitutionally defective, according to the court,
not because he coerced the plea (which counsel denied), but because he failed
to investigate Daniel’s medical records with the help of experts.113 “This was
not a ‘strategic’ decision,” emphasized the appellate court, “it was an eco-
nomic one. . . . The decision was made because he [the defense attorney] had
not been paid for experts.”114 And while he need not have hired experts out
of his own pocket, he failed to “advance his client’s best defense in a reason-
ably competent manner.”115 He could have subpoenaed the treating doctors
themselves to trial; he could have withdrawn from the case and allowed Del
Briggs to receive the appointment of counsel for indigents (which eventu-
ally occurred at the habeas stage); or he could have asked the court for the
payment of expert fees, which “undoubtedly” would have been approved had
such a request been made. But counsel did none of this, and his failure to
exercise “reasonable professional judgment” substantially disadvantaged Del
Briggs.116
As required when a defendant later seeks to withdraw a guilty plea, there
was a “reasonable probability that, but for counsel’s errors,” Del Briggs would
have insisted on a trial, an assessment that depended “in large part upon a
prediction whether the evidence likely” would have resulted in an acquit-
tal.117 Here, powerful evidence existed that there was no crime: Daniel’s
defective kidney, his repeated hospitalizations, and evidence of the “bun-
gled” intubation that led to his brain death.118 Based on this evidence, the
court concluded that “it is highly likely that a jury would have returned with
a ‘not guilty’ verdict based upon a reasonable doubt concerning the cause of
Daniel’s death.”119
In 2005, five years into her sentence, the court vacated the conviction that
had been entered upon Del Briggs’s guilty plea.120 Months later, the prosecu-
tor dropped all charges, concluding that there was insufficient evidence to
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proceed.121 With the criminal case behind her, Del Briggs could focus on
regaining custody of her surviving son, who was then six years old.122
Despite the obstacles, more defendants are succeeding in their quest to have
their convictions vacated—at least when compared to decades past. Audrey
Edmunds. Abigail Tiscareno. Melonie Ware. Julie Baumer. Drayton Witt.
Marie Hurtado. Brandy Del Briggs. There are, and will be, others.
Their cases typify problems with the triad-only paradigm. When judges
revisit the evidence that once convicted, problems tend to emerge. In any
given case, this may be because a defendant’s trial lawyer did not mount a
meaningful challenge to the science. Or it may be because new attention to
the medical records—in many cases occasioned by a defendant’s post-trial
consultation with expert witnesses—uncovers plausible explanations for the
baby’s injuries that are inconsistent with the defendant’s guilt. With Audrey
Edmunds, it was simply because the new SBS was different enough from its
old self to cast doubt on a prosecution premised on the triad.
Most efforts to obtain post-conviction relief fail altogether. But even the
best-case scenario for a defendant imprisoned based on the triad is hardly
optimal. If relief is ever to be granted, it will be after many years of incarcera-
tion. Beverly Moore—who was appointed an extraordinarily talented lawyer
to pursue her habeas petition—is a prime example of the inefficiencies of
post-conviction litigation. Six years after she was convicted and sentenced to
life in prison, a federal court determined that she had established her actual
innocence for purposes of excusing a procedural default. Even so, the case was
returned to the state courts for exhaustion of state remedies. Were innocence
recognized as a basis for relief, she would be free. Yet years later, she waits
behind bars for good news while her son grows out of childhood.
If Moore someday receives word that her petition has been granted, she
will be among the fortunate few for whom habeas corpus proved more than
a “pipe dream.”123 Others in prison because of the triad will continue serving
their sentences without meaningful review. There must be a better way.
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10_9780199913633.indd 194 1/29/2014 1:12:30 PM
10 REFORM
Widespread problems of criminal justice manifest themselves in the

SBS realm. Defense representation is of an uneven quality. Funding
for defense experts is woefully inadequate. Confessions are exacted
in ways that might make them unreliable. Innocent defendants at
times plead guilty. SBS is an object lesson in these far-reaching sys-
temic limitations.
Here I concentrate on a subset of problems with particular
salience for SBS prosecution and, more broadly, for science depen-
dent prosecution. Most of my recommendations target the law. But
first a few words about the practice of medicine are in order.
Improving Medical Outcomes

In triad-only cases, reliance on the methodology of differential
diagnosis raises difficult questions. What are the alternatives to
be considered? How should these possibilities be investigated?
What is the significance of old subdural bleeding? What are the
risk factors for infant neurological impairment? If SBS/AHT is
indeed a valid diagnosis of exclusion, what is the mechanism of
trauma? And, with regard to each of these areas, to what extent is
scientific knowledge still developing? A nonpartisan distillation of
the science—perhaps most helpfully by the National Academy of
Sciences—would help resolve lingering disputes.
Better understanding of these contested facets of clinical prac-
tice would improve outcomes in individual cases while paving the
way for further research into causes of the triad other than shaking.1
The discovery of overlooked possibilities has real consequences for
both treatment and prevention. In a different context, legal scholar
Lars Noah once suggested that “the medical profession should
insist on a clearer demarcation between diagnostic judgments for
therapeutic purposes and forensic diagnoses.”2 SBS reflects the
complete erosion of this boundary. As Noah warned, “the primary
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purpose for making a diagnosis, namely, caring for a patient with an illness”
can be distorted by too close a relationship between medicine and law.3
When doctors presume abuse in the presence of subdural bleeding or reti-
nal hemorrhages, other conditions may go undetected. Inverting, or, at the
very least, weakening this presumption—creating daylight between the triad
and criminal prosecution—would facilitate new treatment and prevention
possibilities.
The existence of lucid intervals raises the prospect that someone other
than the defendant may have abused the baby. But, in what seems the
greater number of cases, the medical evidence suggests that no crime what-
soever was committed, meaning that no perpetrator is still at large. For this
reason, those concerned about the validity of triad-based convictions do
not normally invoke the discourse of crime control—a discourse that has
been generally useful to the innocence movement.4 An inability to ignite
popular law enforcement urges has probably hindered efforts to revisit
triad-only convictions. But, while these cases do not tend to involve an
unapprehended perpetrator—a guilty person who goes free when an inno-
cent is convicted—they can entail undetected causes of the triad, and even
causes that remain undiscovered. It is not just innocents who suffer when
SBS is wrongly diagnosed. Although the public health implications of this
story have yet to be explored, it seems quite possible that research dollars
have been insufficiently allocated toward understanding the causes of neu-
rological decline in babies.
The effects of the medical establishment’s embrace of SBS extend to
clinical practice as well. The worth of differential diagnosis is undermined
by the standard progression of an SBS case, which begins with a presump-
tion of abuse that is readily confirmed. This presumption tends to derail a
thorough investigation of alternative explanations of an infant’s symptoms.
Greater attention within the medical profession to common sources of diag-
nostic error should enhance doctors’ ability to discern non-abusive possibili-
ties. This advance might impact the treatment of babies already presenting
with the triad. It might also improve outcomes for those with conditions
potentially leading to neurological decline if left unaddressed. In cases where
doctors have examined and released infants before their ultimate collapse,
one wonders whether a different diagnostic orientation might have made a
difference.
Whether civil suits against doctors5 will result in positive changes to the
medical establishment is a difficult question, and one that I do not purport to
answer. The civil justice dimensions of SBS are complicated.
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Reform • 197
Upstream Innocence Protection

Let us return to the criminal justice system. My suggestions for reducing
wrongful convictions are fairly modest, at least insofar as they work within
existing criminal justice frameworks. That said, these ideas have in com-
mon the aim of softening the adversarial model, which is a poor fit for a
prosecution paradigm that depends entirely on medical science. Regardless
of whether science can ever be truly “objective,”6 we should be wary of rest-
ing criminal convictions on highly contested scientific claims. The proposed
conceptual framework is quite simple: rather than exacerbate the partisan
nature of science, our criminal justice system ought to mitigate its more bias-
ing influences.
Pretrial Discovery
Under existing procedures, a criminal defendant has a pretrial right to certain
disclosures on the part of the prosecution. The precise contours of this right
vary by jurisdiction, but, with regard to SBS, there are two glaring deficiencies
in the practice of discovery. The first is an overly narrow understanding of
what prosecutors should disclose. The second is the absence of pretrial discov-
ery depositions in criminal cases that are dependent on experts.
The Prosecution Team

The legal obligation to disclose evidence belongs to the prosecution “team,”
which in this case is more encompassing than normal, since it also includes
the doctors. In 2012, a federal district court described the physicians involved
in diagnosing SBS as state actors, and their relationship with prosecutors as
“a close entwinement.”7 (Consistent with this understanding, we saw earlier
how multidisciplinary child abuse teams transform the traditional role of
the medical professional, who becomes instrumental in proving a caregiver’s
guilt.) Prosecutors seeking to comply with discovery requirements have yet to
adapt to this unusual collaborative structure.
One potential pitfall is the overlooked disclosure of tangible medi-
cal evidence—hospital records, lab results, radiographic imagery, autopsy
reports. When the defense finds this evidence for the first time after the trial
(typically because of a pending habeas petition or civil suit), it may well be
because the prosecutor was unaware at the time of disclosure that the mate-
rials were incomplete. But this becomes a less compelling excuse when the
prosecution team is defined in an appropriately expansive manner. From this
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perspective, prosecutors have an affirmative duty to seek evidence that will

ensure the disclosure of complete materials. Doctors, too, should appreciate
that discovery violations have consequences, and search diligently in order to
comply with legal obligations that are rightly shared.
Aside from tangible evidence in the possession of hospitals, treating physi-
cians may in some cases have opinions to which the defendant is constitution-
ally entitled. In 1963, the landmark case of Brady v. Maryland8 established a
due process right to evidence that is favorable to the defense when it is mate-
rial to guilt. Though Brady has been criticized for insufficiently protecting the
innocent,9 it provides a governing framework that remains important. As legal
scholar Lissa Griffin explains, “Brady promised to make the adversary system
‘less like a sporting event and more like a search for truth.’ Theoretically, excul-
patory evidence that might never have surfaced would now be revealed and
subjected to adversarial testing as part of a fair search for truth.”10
Whatever its shortcomings, Brady suggests that prosecutors in SBS cases
have ongoing duties to share exculpatory material that comes from doctors,
even those who will not be called as state’s witnesses. Prosecutors generally
take seriously their disclosure obligations and do their best to comply.11 Yet
the alliance between prosecutors and doctors who have diagnosed a baby
with SBS complicates the realities of discovery practice. Prosecutors may not
fully realize the scope of information that falls within Brady’s ambit.12
The team-based approach to SBS allows prosecutors to delegate—typically
to the child abuse specialist—the task of assembling the medical witnesses
and making sense of the opinions they provide. As we have seen, doctors who
believe that SBS is the proper diagnosis often reject competing medical opin-
ions; these rejected opinions may constitute Brady material. The prosecutor
has the burden of ensuring that the defense has access to the full range of
information gathered in the course of treating the baby—even (especially)
where a discrepancy will erode the monolithic presentation of the state’s evi-
dence at trial. This responsibility is too often neglected.
When a radiologist or a neurosurgeon identifies chronic bleeding, this
impression should not simply disappear from a defendant’s view, even if the
prosecutor must interrogate the “lead” doctor’s account more thoroughly, or
question more doctors, to uncover the fuller version. Likewise, when a doctor
equivocates or expresses a dissenting view in the presence of a prosecutor, this
information should be disclosed to the defense. And when an expert for the
state offers a plausible explanation for the baby’s collapse that is consistent
with the defendant’s innocence, the defendant ought to know it. (This is so
regardless of whether the doctor and prosecutor happen to remain committed
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Reform • 199
to a belief in the defendant’s guilt.) Convictions that rest on contestable med-

ical opinions are not secure if these opinions have been preselected, however
unwittingly.
A better approach to discovery reflects the essence of science-dependent
cases by explicitly acknowledging the medicalized nature of the prosecution
team. This more sweeping approach takes account of the unique attributes of
SBS prosecutions. But the underlying idea that prosecutors must actively seek
exculpatory information from all members of their team is well established.
This mandate comes not only from Brady but also from applicable statutes,
local rules, ethical codes, and case law, all of which are designed to achieve
what then–U.S. Department of Justice (DOJ) Deputy Attorney General
David Ogden referred to in writing in 2010 as “a just result in every case.”13
This same departmental memorandum (often referred to as the “Ogden
Memo”) provides guidance to federal prosecutors regarding criminal discov-
ery obligations. (Though state and local prosecutors are not bound by these
guidelines, they are widely viewed as a roadmap to best practices.) The Ogden
Memo instructs that “it is the obligation of federal prosecutors, in preparing
for trial, to seek all exculpatory and impeachment information from all mem-
bers of the prosecution team.” In “complex cases” that involve “non-criminal
investigative” agencies, the prosecutor “should consider whether the relation-
ship with the other agency is close enough to make it part of the prosecution
team for discovery purposes.” Factors relevant to this determination include
whether the outside agency “played an active role in the prosecution,” and
“whether the prosecutor has obtained other information and/or evidence
from the agency.” Prosecutors are “encouraged to err on the side of inclusive-
ness when identifying the members of the prosecution team for discovery
purposes.” Insofar as the guidelines broadly construe the prosecutorial team,
they serve as a useful frame of reference for discovery issues that arise in SBS
cases. (Although the Ogden Memo does not expressly contemplate “agencies”
like hospitals or child protection teams, federal prosecutors generally do not
handle SBS cases.)
After defining the parameters of the prosecution team, the Ogden Memo
reminds prosecutors that not just written materials—but oral exchanges—
may be discoverable if they contain material exculpatory information.
Prosecutors should have “candid conversations” regarding any potential
impeachment issues that the defense may also be entitled to learn. Overall,
prosecutors are “encouraged to provide discovery broader and more compre-
hensive than the [legally mandated] discovery obligations,” an orientation
that “promotes the truth-seeking mission.”14
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In SBS cases, this same orientation would go some way to counteract-

ing the presentation of science—here, the medical diagnosis of crime—as
unassailable.
Discovery Depositions
Prosecutors occupy a unique position in the administration of justice. But the
adversary system requires an important contribution from defense attorneys,
too. Currently, many are unable to successfully manage a case that depends
on medical expertise. Were the law reformed to facilitate pretrial discovery
depositions of prosecution experts, this situation would improve appreciably.
To understand why, we may begin by noticing again that SBS cases closely
resemble lawsuits where expertise is fundamental to resolving a claim. In
important ways, the parallels between SBS prosecution and civil litigation
requiring expert opinion are stronger than between SBS prosecution and tra-
ditional criminal cases. A brief return to the civil realm thus becomes helpful.
Depositions have long been a central feature of civil practice.15 As the U.S.
Supreme Court proclaimed in 1947, “the pre-trial deposition-discovery
mechanism . . . is one of the most significant innovations of the Federal Rules
of Civil Procedure.” In large part because depositions had already become the
standard, the Court approvingly noted that “civil trials in the federal courts
no longer need be carried on in the dark.”16
In modern times, depositions are “an essential tool—perhaps the essen-
tial tool—of pre-trial discovery,”17 allowing lawyers to commit opposing
witnesses to their stories, obtain useful admissions, and facilitate trial prepa-
ration.18 While depositions as a whole play a critical role in civil litigation,19
expert depositions in particular are indispensable.20 Where expertise lies at
the heart of a civil suit, as so often occurs, avoiding “trial by ambush” is a must.
As well, civil depositions often improve the effectiveness of pretrial litigation
regarding the scope and admissibility of expert testimony. Deposing experts
has become routine practice.21
When we juxtapose the ubiquity of civil depositions with the far more
limited discovery permitted in criminal prosecutions, the contrast is striking.
Depositions that are integral to civil justice are mostly missing from the crimi-
nal side. In almost every jurisdiction, defendants are provided only documen-
tary materials and access to physical evidence; discovery depositions are the
rare exception.22 Only a handful of states provide for automatic depositions23
(though others authorize them under exceptional circumstances).24 The dis-
parity between deposition practice in civil and criminal courts is stark. SBS,
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Reform • 201
which depends entirely on expertise, is a case study in why this differential

treatment may be problematic.25 To remedy this situation, state criminal prac-
tice rules should be amended to allow for the possibility of depositions of the
state’s trial experts.26
Admittedly, robust criminal discovery comes at a cost.27 Some of these
downsides are mitigated by the circumscribed nature of my suggested reform.
Since it is limited to experts, for example, the change will not deter civilian
witnesses forced to navigate the criminal justice system, however unwillingly.
Even so, in a regime that authorizes expert discovery depositions, prosecutors,
their doctors, and defense lawyers will lose precious hours to the endeavor.28
Who pays for all this is a difficult question that cannot be resolved here. But
my strong hunch is that the added expense of allowing a defendant to depose
a prosecution expert will, in many SBS cases, be worthwhile—not simply
because the value of justice is incommensurable, but also since the economic
costs of wrongful incarceration will, at least in some cases, be avoided. (More
on this momentarily.)
The distinct advantages of pretrial access to the state’s expert witnesses
are many.29 Defense lawyers are able to learn the theory of the prosecution’s
case in advance of trial, since the doctors provide the evidence of guilt. This
notice primarily facilitates effective cross-examination. Discovery depositions
enable the defense to know in advance the precise scientific claims that doc-
tors will make at trial. If these claims lack support in the medical literature
and recognized treatises, contradict prior testimony, or diverge from official
positions taken by professional organizations like the American Academy of
Pediatrics, defense counsel can prepare to impeach the witness accordingly
or move to exclude the testimony in its entirety. (And judges can then decide
these motions with the benefit of a far richer evidentiary record.) If the pros-
ecution prepared its witnesses together, or departed in other ways from best
practices, the defense can explore the implications before trial. And if a pros-
ecution expert might have something to say that is helpful to the defense, the
deposition is a way to determine this, and relatively early on in the process.
The forum allows for questions that, without knowing the answers, a defense
attorney would not likely want to put before a jury.
Pretrial depositions not only enhance cross-examination; they also give a
defense team the opportunity to investigate medical alternatives that might
not otherwise emerge. Defense counsel may then realize that particular
expertise is needed to pursue an alternative theory of causation and take steps
to retain appropriate doctors. Once experts are engaged, command of the
disputed medical issues allows for greater focus on the part of the defense
11_9780199913633.indd 201 1/29/2014 1:13:35 PM

attorney and the doctor. This should enhance attorney preparation, which is
often inadequate in these cases that are among the most difficult to defend.
Another virtue of pretrial depositions is that they can obviate costly tri-
als. The opportunity for the state to evaluate its experts’ claims and how they
withstand adversarial scrutiny allows prosecutors to discover doubts about
the defendant’s guilt and, newly informed, dismiss a case before trial where
appropriate.
Finally, where prosecutors remain unconvinced, but a pretrial deposition
arms a defense attorney with useful information, the trial itself will be fairer
and the result more likely just. Without a large sample size, it is impossible
to know the extent to which discovery depositions affect outcomes. But, in a
few cases where defense lawyers were permitted to examine the state’s doctors
before trial, it seems clear that the adversary system functioned far more effec-
tively.30 Though no panacea, pretrial depositions likely reduce the chances of
wrongful conviction.
Expert Testimony
With rare exception, defense motions to exclude the prosecution’s expert tes-
timony about SBS have failed. Despite revisions to diagnostic claims made
on behalf of the triad, and new challenges to the scientific basis of triad-only
diagnosis, the admission of SBS testimony is almost guaranteed by its prior
evidentiary treatment—an approach that coalesced when the diagnosis was
considered both pathognomonic and uncontroversial. In cases involving
triad symptoms alone, courts continue to reject arguments that the proffered
opinions are not generally accepted in the medical community,31 or that they
are not based on reliable scientific methods.32 Earlier cases deciding these
questions retain their precedential value, even though the prior holdings
addressed the SBS of old.33 This deference to bygone understandings is yet
another manifestation of systemic inertia.
Standards for determining the admissibility of scientific evidence, in
effect, privilege long-standing beliefs. Even in the face of doubts about the
basis for those beliefs, our justice system is structured in a way that makes
admission into evidence the default. “[T]he standard for admissibility is rel-
evance and reliability, not certainty,” courts often remark when dispensing
with challenges to SBS testimony.34
The admissibility of scientific testimony is typically dictated by one of two
evidentiary schemes. A leading evidence treatise explains the two dominant
approaches, known as Frye and Daubert, as follows: “Under the former, the
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Reform • 203
proponent must show that the scientific community agrees that the principles
or techniques on which the expert relies are capable of producing accurate
information and conclusions. Under the latter standard, general acceptance
remains an important consideration, but the court must consider other fac-
tors to decide for itself whether the expert’s methodology is scientifically
valid.”35 These approaches to admissibility are premised on the functioning
of our adversary system. As the United States Supreme Court emphasized in
Daubert, “[v]igorous cross-examination, presentation of contrary evidence,
and careful instruction on the burden of proof are the traditional and appro-
priate means of attacking shaky but admissible evidence.”36
Judges often justify the admission of SBS testimony by reference to foun-
dational principles of adversarial litigation. For instance: “The ‘gate-keeping
function of the court was never meant to supplant the adversarial trial pro-
cess. The fact that experts disagree as to methodologies and conclusions is not
grounds for excluding relevant testimony’ ”37; and “ ‘[a] party confronted with
an adverse expert witness who has sufficient, though perhaps not overwhelm-
ing, facts and assumptions as the basis for his opinion can highlight those
weaknesses through effective cross-examination.’ ”38 Admissibility determi-
nations are grounded in the proper allocation of decision-making authority
between judge and juror, as well. “The gatekeeping function of the trial court
is restricted to keeping out unreliable expert testimony, not to assessing the
weight of the testimony. This latter role is assigned to the jury.”39 Even more
emphatically, “[t]he court is only a gatekeeper, and a gatekeeper alone does
not protect the castle.”40 What emerges is a heavy presumption in favor of
admissibility: if the evidence is not deemed “pseudoscientific” or “junk sci-
ence,”41 it satisfies the standard.
It is unsurprising, then, that testimony regarding SBS has rarely been
excluded altogether. The cases to do so are, however, instructive. In Kentucky,
after hearing from experts on both sides, a trial court concluded in 2006
that the diagnosis “presupposes the cause.”42 The court added, “[t]o allow a
physician to diagnose SBS with only the two classical markers, and no other
evidence of manifest injuries, is to allow a physician to diagnose a legal con-
clusion.”43 Accordingly, the state was precluded from presenting expert tes-
timony regarding SBS based exclusively on subdural hematoma and retinal
hemorrhage and in the absence of “any other indicia of abuse.” Later, however,
an appeals court reversed this order.44
Another court to exclude SBS evidence did so in a 2007 case also involving
retinal hemorrhages and subdural hematoma.45 After hearing testimony from
experts on both sides, a Missouri trial court determined that the SBS diagnosis
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“appears to have gained considerable acceptance . . . among pediatricians.

However, there is substantial, persistent and continuing criticism of this
diagnosis among many in the medical and scientific research communities.”46
The court further noted, “The critics contend that subdural hematoma and
retinal bleeding can have many other causes and that the diagnosis of shaken
baby syndrome is merely a ‘default’ diagnosis, one which pediatricians use
when they have no other explanation for the cause of the child’s injuries.”47 In
an unpublished order, the court concluded that the state had failed to meet
its burden of establishing that SBS is generally accepted in the scientific and
medical communities.48 The prosecution was precluded from offering testi-
mony that the infant was a victim of violent shaking based on the triad alone,
and this ruling was not appealed.49
Although decisions to exclude testimony about SBS are outliers, they fore-
tell more aggressive, better-developed admissibility challenges on the part of
the defense. A motion filed in 2012 on behalf of Drayton Witt, the Arizona
father whose case was described earlier (chapter 5), reflects this movement.
In part, the motion reads, “At best, SBS is a highly controversial, unproven
hypothesis unfit to serve as the basis for a murder prosecution; at worst, SBS is
junk science, a tragic hoax caused by overzealousness within the child protec-
tion community that has contributed to hundreds if not thousands of wrong-
ful convictions. In either event, testimony about SBS must be precluded from
any retrial of Mr. Witt.”50 After an evidentiary hearing on this motion was
scheduled, the state agreed to dismiss the case against Witt. Although we can-
not know how the motion would have been decided, it sets forth a strong
argument for exclusion.
At a certain point, even doctrine that seems unyielding must submit to
new scientific developments.51 Evidentiary rulings will eventually evolve—
but only after a lag guaranteed by judicial deference to precedent, to physi-
cians, and to the workings of the adversary system. For now, testimony about
SBS, or AHT, will most likely be admitted.52 Juries will continue to decide the
worth of the science and the fate of the accused.
That said, judicial reluctance to preclude expert testimony on SBS in its
entirety does not require courts to continue admitting testimony without
bounds. Rather, the permissible testimony of prosecution doctors ought to be
more circumscribed. A license to opine has limits, which to date have not been
imposed. To better understand the kinds of restrictions on expert testimony
that I envision, we can yet again look to the civil sphere, where—as is true for
the legal treatment of “differential diagnosis” (chapter 5)—judges have taken
a considerably more active role in scrutinizing the claims of medical experts.
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Reform • 205
As compared to the criminal realm, in civil cases involving the testimony

of physicians, a far more sophisticated framework for assessing medical exper-
tise has developed. Though this insight is largely ignored when SBS is alleged,
courts have recognized that doctors cannot be considered universal experts
in medicine. As the Texas Supreme Court put it, “Given the increasingly spe-
cialized and technical nature of medicine, there is no validity, if there ever
was, to the notion that every licensed medical doctor should be automati-
cally qualified to testify as an expert on every medical question. Such a rule
would ignore the modern realities of medical specialization.”53 Other courts
have similarly rejected the notion that a doctor’s expertise extends to all mat-
ters medical.54 The scope of allowable expert testimony is not assessed by
reference to the knowledge of the layperson (since, by this standard, doctors
would be entitled to opine about medicine writ large).55 Instead, the question
for the court deciding admissibility is properly whether “the expert’s expertise
goes to the very matter on which he or she is to give an opinion.”56 In medical
malpractice cases, courts are especially cautious about permitting testimony
from a doctor who lacks specific qualifications in the area.
Judicial willingness to constrain the testimony of medical experts in civil
litigation is striking when compared to the widespread latitude afforded
doctors in criminal cases. Where the prosecution model rests entirely on
the opinions of physicians, this failure to rationally define the boundary
of expertise—as opposed to accepting mere witness say-so—is jarring. The
inquiry I advocate invites answers to questions that, to date, are rarely liti-
gated. Should a doctor who is not a radiologist interpret imagery evidence
for a jury? Should a doctor who is not an ophthalmologist opine on the “pat-
tern” and significance of retinal hemorrhages? Should a doctor who is not a
hematologist explain the results of a blood workup? Most delicate, perhaps, is
whether a child abuse specialist or pediatrician should testify to matters that
span medical specialties.
If this approach seems cumbersome or unduly concerned with expert
overclaiming, return to the civil analogue, where, as the U.S. Court of Appeals
for the Fifth Circuit insisted, “the questions do not stop if the expert has an
M.D. degree. That alone is not enough to qualify him to give an opinion on
every conceivable medical question. This is because the inquiry must be into
actual qualification.”57 If this inquiry is pursued in the SBS context, as I sug-
gest, courts may at times allow the proffered testimony. But the very effort
to delineate the scope of medical expertise should improve the quality of sci-
entific claims admitted in court. Especially where these opinions are used to
prove guilt, we can expect no less.
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Sufficiency Review
A “reasonable jury” presumably operates based on reason. Given this
requirement, we might wonder how jurors assess expert testimony. It
turns out, not all that well. As legal scholar Scott Brewer has described,
“ ‘nonexpert judges’ and juries’ lack of understanding of the cognitive aims
and methods of science . . . yield only epistemically arbitrary judgments.”58
Prosecutions that effectively require triers of fact to defer, rather than rea-
son, defy certain fundamental assumptions about how juries are supposed
to operate.59 In these cases, the legal requirement of a reasonable verdict
is undermined by the demonstrably limited capacity of jurors to resolve
competing expert claims.60
Because they rest entirely on scientific expert testimony, SBS prosecutions
present a strong challenge to the ideal of epistemically sound judgment. In the
archetypical case, jurors are called upon to pass judgment on the validity of a
medical diagnosis. Assuming the defense presents a doctor of its own, jurors
must accomplish this task by resolving an outstanding dispute between two
scientific camps in order to pick a winner.61
A good deal of evidence suggests that factfinders cannot do this job.62 As
legal scholar Samuel Gross, who has studied this problem extensively, sum-
marizes the conundrum, “resolving differences between experts is notoriously
difficult even for other experts; to expect lay people to do it is unrealistic
under the best of circumstances, not to mention in court.”63 Because they lack
the competence to judge the competing testimony on its merits, jurors rely
on “proxy criteria, like demeanor or credentials”64 to choose between experts.
Despite the inadequacy of these criteria as substitutes for rational delibera-
tive processes,65 they may be all that is available to nonscientists placed in the
untenable position of choosing sides in a courtroom debate about the SBS
diagnosis—its correctness in the case on trial, its validity in general, or both.
Given that our system of partisan expertise is likely here to stay,66 it is
worth thinking about how we might account for juror limitations, especially
when scientific opinions comprise the entirety of a case. In the civil domain,
judges are well aware of the problem, often noting the tendency of expert tes-
timony to unduly influence lay triers of fact. As one court warned, “the nim-
bus of his M.D. degree and his board-certification in orthopaedics will likely
have an impact on the jury, far surpassing the merit of his weak and unreliable
opinions.”67 It is not uncommon in well-funded civil cases for a court to draw
a connection between unreliable testimony and legal insufficiency,68 and even
to grant summary judgment on this basis.69 Even the U.S. Supreme Court
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Reform • 207
has recognized that expert opinion “can be both powerful and misleading
because of the difficulty in evaluating it.”70
In the civil context, judges are more willing to restrict the scope of expert
testimony, as we have seen, and more apt to dismiss borderline cases before
they reach a jury.71 Especially when a case hinges on competing scientific
claims, factfinders may be unable to make decisions with an acceptable level
of rationality.72 In these situations, courts have acknowledged that “the legal
system has chosen to trade some neutrality for potential improvements in
jury comprehension and hopefully in outcome accuracy.”73 Unreliable testi-
mony is excluded—often signaling the end of a plaintiff ’s case.74
As we saw, criminal court judges have adopted a much less active judicial
role, not only in screening, but also in evaluating the legal adequacy of scientific
evidence.75 There is no good reason for judicial review of evidentiary sufficiency
to look substantially different across the two realms. SBS cases are, in their sci-
entifically bound state, much like their civil counterparts. In civil litigation,
courts factor the odds of a jury rationally assessing competing (and compli-
cated) scientific evidence. This same concern for epistemic competence should
also animate judicial decisions in SBS cases, which rely every bit as much on
expert opinion. More exacting sufficiency review, like that applied in the civil
sphere, would better accord with the science-dependent nature of SBS cases.
Finally, sufficiency analysis cannot be abstracted from the quality of evi-
dence permitted at trial. The low threshold for admissibility of expert testi-
mony allows the jury to hear opinions that, all tolled, may not sustain a guilty
verdict.76 Especially if speculation is excluded in triad-only prosecutions,
judges might well find that the resulting record is inadequate.
The need for confidence in criminal convictions is nowhere greater than
where the accusations are most damning. In SBS prosecutions, it has fallen to
a changed and changing body of science to establish guilt. Without improve-
ments to existing doctrinal frameworks for evaluating sufficiency, the protec-
tion of innocence will fall short.
Downstream Innocence Protection

Though SBS has evolved, criminal convictions that rest on disavowed itera-
tions of the diagnosis remain in place. Our criminal justice system was not
designed to accommodate the continual correction that is the essence of scien-
tific progress. Criminal convictions cannot evolve; they maintain their steady
state, unless under extraordinary circumstances they are vacated altogether.
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With SBS, what supposedly once proved guilt does no longer: with regard
to fundamental tenets of the diagnosis, consensus has undergone revision.
The medical establishment has formally abandoned the premise of a pathog-
nomonic relationship between shaking and the triad. So, too, have doctors
accepted the methodology of “differential diagnosis,” conceding that a num-
ber of alternatives—some still unfolding—can “mimic” abuse. Doctors have
also recognized the possibility of a lucid interval. And leading proponents
of the diagnosis have acknowledged that shaking cannot be isolated as a
causal mechanism, nor can force thresholds be scientifically quantified. These
developments have come about in part because basic anatomical assumptions
underlying the earlier theory of causation have been questioned.
Given the differences between today’s AHT and the SBS that preceded
it, a review for wrongful convictions presents an obvious need. When the
triad was said to prove that the caregiver last with the conscious baby vio-
lently shook the child, the defendant’s guilt was established by testimony now
known to be false. Because other medical possibilities for the triad were never
explored, the possibility of a viable defense theory—an alternative medical
version of events—was effectively eliminated. Just as important, the unchal-
lengeable expert testimony was itself proof of guilt beyond a reasonable doubt.
Despite all this, convictions that rest on discredited claims remain mostly
untouched. In place of systemic reexamination, triad-based convictions have
been overturned in only haphazard fashion. The serendipity of quality legal
representation and access to the right kind of medical expertise has mattered;
the likeness of facts giving rise to the prosecution has not.
The premium placed on finality by our justice system helps to explain why.
Across the board, as we have seen, criminal law and procedure are structured
so that guilty pleas and verdicts will withstand challenge. By design, with only
rare exception, criminal convictions are not disturbed. This arrangement has
been defended on a number of grounds. Finality is said to be necessary for the
proper functioning of punishment.77 It is also thought to “enhance[] the qual-
ity of judging”78; “to preserve the federal balance”79; to preserve resources80;
and to allow closure for crime victims and for the State, so that all may “move
forward knowing the moral judgment will be carried out.”81 Commitment to
the finality of criminal convictions is deeply embedded in our criminal law
structures and jurisprudence.82
The problem is that other important values are in tension with this com-
mitment. In criminal law, the likelihood of injustice is sufficiently disturbing
to outweigh, at times, the desire for finality.83 On occasion, it seems impera-
tive that an outcome be revisited. But over time, as the courts and legislatures
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Reform • 209
have struggled to strike the appropriate balance between competing norms,

finality has almost always emerged paramount.
The innocence movement may be changing this. As a general proposi-
tion—one that bears directly on our inquiry—the criminal justice system is
beginning to adapt in response to mounting evidence that innocent people
have been, and continue to be, imprisoned for crimes they did not com-
mit.84 The rise of the innocence movement85 is an outgrowth of hundreds of
DNA exonerations,86 which have given meaning to the iconic “innocent man
convicted.”87 Undisputed proof that false convictions occur88 has raised the
prospect that they occur with considerable frequency.89 Notwithstanding dis-
agreement regarding the extent of the problem,90 known exonerations—both
the fact of their existence91 and what we have learned about their causes92—
have shined a spotlight on innocence.93 In tangible ways, DNA exonerations
have impacted legislative reform,94 popular opinion,95 and investigative best
practices.96 The emergence of false convictions as a central concern for the
administration of justice has also prompted a systemic reevaluation of certain
basic features of our criminal law landscape.97
Today more than ever, there is pressure on our system to account for inno-
cence.98 Innocence of a certain kind, that is. The impetus for ongoing systemic
change—the DNA cases—created an innocence prototype, one that is vir-
tually synonymous with DNA exoneration. The use of DNA as a proxy for
innocence is ubiquitous. The Federal Innocence Protection Act establishes
post-conviction procedures for examining and testing DNA evidence.99 The
nationally renowned Innocence Project is dedicated to exonerating wrong-
fully convicted individuals through DNA testing.100 The innocence move-
ment itself has been sustained in large part by what DNA offers: “the promise
of innocence as an entity with clearly delineated boundaries, discoverable by
scientific means. . . . [A] foolproof method for telling truth from lies and good
from evil.”101
The implications of a DNA-centric understanding of innocence are far
ranging. In various ways, the law has configured itself around the “gold stan-
dard” for establishing the wrongfulness of a conviction.102 The level of certi-
tude DNA provides has become a benchmark, and the actual innocence it
establishes is a touchstone for post-conviction relief. As our criminal justice
system responds to a perceived need to better correct errors, default to this
innocence prototype tends to disadvantage other types of proof.
The challenge of unraveling faulty SBS convictions provides an opportu-

nity to consider the limits of this model and how to improve upon it.103 In
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considering three potential avenues of post-conviction relief—federal judi-

cial review, prosecutorial conviction integrity units, and independent inno-
cence commissions—certain features of SBS warrant special consideration.
First is the categorical nature of the problem. Because the meaning of the
triad is medically constructed, an entire set of convictions rests on unusually
similar factual predicates. Second is that the evolving state of the science is
a poor fit for conventional notions of “newly discovered” evidence. Last is
the utter reliance of the state on medical expertise to prove guilt. As a corol-
lary, for a defendant to disprove and even raise doubts about guilt, expertise is
needed. These features of medically diagnosed crime do not neatly map onto
post-conviction relief regimes.
Federal Court Review

The law of federal habeas corpus has been deliberately structured to limit fac-
tual review of state court proceedings,104 such that the U.S. Supreme Court
has thus far refused to recognize a constitutional innocence claim.105 Were
this to change, as many commentators have urged,106 the lot of SBS petition-
ers might considerably improve.
SBS defendants would also benefit from more widespread judicial willing-
ness to vacate convictions resulting from the admission of unreliable science.
In the 2012 case of Han Tak Lee, the U.S. Court of Appeals for the Third
Circuit said that due process requires nothing less.107 The case against Lee
rested on arson science, which, like SBS, has shifted decisively.108 According
to the Third Circuit, the district court was wrong to discount the legal signifi-
cance of this change by denying the habeas petition without an evidentiary
hearing or even discovery.109
Lee’s expert emphasized the flawed nature of the science used to convict
him. More remarkably, the prosecution’s own trial expert later conceded as
much.110 As the appellate court summarized the problem, “some of the indica-
tors relied upon at trial are no longer accepted as valid indicators of arson,
and [the prosecution expert’s] testimony may have been different if the new
science had been available.”111 The court remanded the case for discovery and,
if warranted, an evidentiary hearing on Lee’s factual allegations.112
At stake was a matter of constitutional import: the basic fairness of Lee’s
trial. The case seems to stand for the proposition that new scientific under-
standings can require the vacating of a conviction on due process grounds. As
the Third Circuit held, “[i]f Lee’s expert’s independent analysis of the fire scene
evidence—applying principles from new developments in fire science—shows
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Reform • 211
that the fire expert testimony at Lee’s trial was fundamentally unreliable, then
Lee will be entitled to federal habeas relief on his due process claim.”113
A finding of guilt premised on fundamentally unreliable science can under-
mine a defendant’s constitutional right to a fair trial. This judicial recognition
is novel and its full implications remain to be seen.114 But the approach is well
suited to the realities of SBS, and its adoption by other courts would go some
way toward addressing the limits of judicial review in this area.
Regardless, federal court will probably remain an unlikely forum for the
systematic review of old SBS cases.115 Even if Han Tak Lee’s rationale is gen-
erally accepted, petitioners without counsel have little hope of convincing a
court to hear their petitions, much less prevailing on them. Absent a right
to counsel at the habeas stage (a right legislatively secured, if at all, for capi-
tal defendants only) new legal claims like this one—and even the Supreme
Court’s recognition of a freestanding innocence claim, if it comes—will
help too few.116 Those without lawyers and experts will be just where they are
now: filing petitions without the assistance of counsel, a largely futile effort,
or not bothering at all. This prospect underscores the reactive stance of fed-
eral habeas courts, which makes them a poor choice to provide uniform treat-
ment of factually similar convictions.
Prosecutorial Review
One partial solution to the problem of wrongful convictions is for pros-
ecutors’ offices to undertake corrective measures within their organizational
structures. This response is consistent with ethical obligations that continue
even after a defendant has been convicted.117 In the wake of the DNA exoner-
ations, these duties are increasingly viewed as critical. In 2008, the American
Bar Association added two new sections to its Model Rule governing pros-
ecutorial conduct.118 The Model Rule provides, “When a prosecutor knows
of new, credible and material evidence creating a reasonable likelihood that a
convicted defendant did not commit an offense of which the defendant was
convicted, the prosecutor shall promptly disclose that evidence to an appro-
priate court or authority, and . . . [undertake further investigation] to deter-
mine whether the defendant was convicted of an offense that the defendant
did not commit.”119 Further, “[w]hen a prosecutor knows of clear and con-
vincing evidence establishing that a defendant in the prosecutor’s jurisdiction
was convicted of an offense that the defendant did not commit, the prosecu-
tor shall seek to remedy the conviction.”120 The National District Attorneys
Association has endorsed a similar standard.121
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To comply with their ethical obligations in this regard (whether codi-

fied or not), some prosecutors are initiating programs to deal with wrongful
convictions. In 2007, Dallas County pioneered this approach122 and, slowly, a
handful of jurisdictions—including New York County, Santa Clara County,
and Harris County (Texas)—followed suit.123 Given the expansive “minister
of justice” ideal that defines the prosecutorial role, these programs are long
overdue. As New York County District Attorney Cyrus Vance explained
when he announced his office’s new “conviction integrity initiative,” “the
issue of wrongful convictions is the issue that vexes prosecutors more than
any other.”124 DNA exonerations have undoubtedly made this concern, which
was always lurking in the backdrop, all the more pressing for prosecutors.
Overall, the rise of in-house conviction integrity measures seems a
positive development. Prosecutors’ offices are well positioned to evaluate
post-conviction innocence claims. Most important, prosecutors have access
to old case files and established relationships with investigators.125 This is a
tremendous advantage in the SBS context, where a discrete category of pros-
ecutions has been placed in issue.126 In many jurisdictions, locating past pros-
ecutions based on the triad is itself a feat. Internal efforts to do so could prove
most efficient.
Once a universe of cases is identified, the difficulty becomes assessing the
likelihood of an error. The obvious drawback of prosecutorial post-conviction
review is that cognitive biases could inhibit meaningful consideration of the
defendant’s innocence.127 This danger is ever present, though it can be some-
what mitigated by thoughtful institutional design. The likelihood of unbiased
assessment may be diminished in the SBS context, however. As we have seen,
these cases have mostly similar factual predicates, far more so than is typical.
Although the specific medical experts who testified to the diagnostic worth
of the triad varied from trial to trial, their opinions were in essence the same.
The ultimate conclusion—triad equals violent shaking—was based on the
then-accepted science of SBS, which was held out as certain. The dubious sta-
tus of triad-only convictions should make identifying the cases most in need
of reexamination relatively simple. But undoing a conviction becomes far
more difficult when it may logically require undoing many others. Whatever
cognitive biases are at play when it comes to admitting error in an individual
case can only be amplified when prosecutors confront a category of cases that
raise new doubts.
Another reason to expect resistance to revisiting triad-based convictions is
that the “new evidence” that has been “discovered” about the diagnosis of SBS
is different from what prosecutors have become accustomed to. In SBS cases,
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Reform • 213
the kind of affirmative evidence that best approximates the DNA template is
a previously overlooked medical explanation for a baby’s condition. Even this
proof of innocence may be less certain than what DNA offers. But, as com-
pared to understandings that have evolved over time, evidence that is found
subsequent to trial (one moment it was not known, and the next it was) seems
more likely to influence a prosecutor’s post-conviction review.
This presents a quandary. Effectively requiring new evidence of this sort
imposes a nearly impossible administrative burden on prosecutors—namely,
to proactively seek independent medical consultations on old medical charts,
which in many cases are incomplete, from nonpartisan doctors with the right
expertise. Absent prosecutorial efforts to locate an innocent causal explana-
tion for the triad, the probable outcome is that a defendant’s post-conviction
claim will fail.
Without proactive individualized case review, the readily available evi-
dence tends less to support an affirmative theory of innocence than to under-
mine the state’s theory of guilt. We might analogize to the state’s witnesses
all recanting testimony that was critical to proving a defendant’s guilt at trial.
The state in this scenario has no new evidence that affirmatively proves inno-
cence. Rather, it now lacks evidence of guilt. Post-conviction review of this
type of case implicates a paradigm unlike the DNA archetype.
The analogy is of course imperfect. Recantation in the SBS context involves
not trial witnesses, but the larger medical establishment (and not necessarily
the particular witnesses who testified against the defendant). Moreover, the
disavowal has occurred in a gradual manner. The abandonment of classic SBS,
however “new” in relation to the original trial, did not abruptly change the
evidentiary picture. Discerning the significance of this incremental shift may
prove difficult.
I do not mean to suggest that in-house post-conviction review can serve
no useful purpose. Those prosecutors’ offices that appreciate how SBS/AHT
has changed, and why this matters, may well succeed in ferreting out injustice.
For this to be accomplished, however, more space must be created between
prosecutors and the doctors whose testimony led to the triad-only convic-
tions now in question. Decisions regarding the post-conviction significance
of diagnostic revisions rightly belong to the prosecutor; these are not medical
questions, but legal evaluations of the reliable evidential proof. There must be
distance between the practice of medicine and the practice of punishment.
I have heard it said that mistaken SBS diagnosis was the fault of the
doctors—prosecutors simply deferred to the certainty of their experts. I have
also been told that doctors were not responsible for the criminal consequences
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of their medical opinions—it was the prosecutors who chose to proceed with
charges. Both perspectives rather sidestep the problem of injustice. The prom-
ise of post-conviction review lies in the possibility of overcoming this binary
so that wrongs can be righted.
Innocence Commissions
The dilemmas presented by the triad-only paradigm suggest a need for the
implementation of innocence commissions. This solution is imperfect. But
it can move reform to the next phase—especially if, in the course of defining
new institutional mandates, we also begin to develop a post-DNA framework
for what counts as innocence.
For now, we are left with a backlog of triad-only convictions (including
pleas) that have not yet been reexamined, despite the erosion of their scien-
tific foundations. Statewide commissions should be formed to evaluate the
possibility of error in individual cases and, where appropriate, to refer cases of
likely innocence to a designated judicial panel for reversal. This model holds
the greatest potential for a coherent institutional response to a criminal jus-
tice problem firmly rooted in medical expertise. If the approach proves suc-
cessful, it can set the stage for greater reliance on independent commissions
to resolve non-DNA-based claims of innocence—a need that is urgent for all
innocents, but especially innocent women, who have least benefited from the
DNA revolution.128
There are examples of the kind of commission I am recommending—that
is, one created primarily to reverse past false convictions rather than to make
policy recommendations with respect to preventing such convictions.129 Most
useful for our purposes are the United Kingdom’s Criminal Cases Review
Commission (CCRC) and North Carolina’s Innocence Inquiry Commission
(NCIIC), the only one of its kind in the United States.130 The two existing
entities provide useful lessons for designing a commission to address the SBS
backlog.131
An innocence commission (with room for varying approaches to imple-
mentation) would be well situated to unwind injustices in the SBS realm. By
amassing expertise in the diagnosis—both its historical evolution and its cur-
rent incarnation—the organization would gain huge efficiencies. Over time,
after synthesizing the medical literature and doctors’ testimony regarding
the triad, those reviewing claims of innocence would be positioned to iden-
tify whether a case falls into the problem category, either because alternative
causes were inadequately pursued, or because the evidence used to prove guilt
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Reform • 215
is no longer considered reliable. Commissioners with an understanding of

these metrics would more likely view similar facts in similar ways, leading to
an equality of treatment that is desperately needed.
The efficiencies derived from this organizational structure would have
an economic payoff, too.132 By isolating the cases to be reviewed, building
expertise on the part of the reviewers, and streamlining the process by which
errors are corrected, innocents could be freed as quickly as possible. Given
the enormous cost of imprisonment, we can expect that an innocent com-
mission’s annual budget would be on par with the savings that come from
releasing innocent inmates.133 These economic arguments should have politi-
cal traction.
More than ever, the moral imperative at stake can also spur reform. Just as
both the CCRC and the NCIIC were enacted in times of acute concern for
the functioning of criminal law,134 SBS innocence commissions could help to
restore public confidence in an area of justice administration seen by many as
troublesome.135
Defining innocence is central to the operation of an SBS innocence com-
mission. Formulation of the standard—which might look different across
jurisdictions, since our decentralized system of prosecution necessitates
state-by-state reform—will require us to confront what plagues the universe
of non-DNA cases: we can never know that someone is innocent. So how cer-
tain must we be before concluding that a conviction is factually unwarranted?
The forerunner commissions embody competing perspectives on when a con-
viction must be undone. In the United Kingdom, the CCRC refers cases to
the Court of Appeal if there is a “real possibility that the conviction, verdict,
finding or sentence would not be upheld.”136 Once a case has been referred, the
Court of Appeal has “substantial power to correct miscarriages of justice”—
indeed, the CCRC is popularly known as the “miscarriages of justice body”
because of this wide remedial mandate. In the past, when quashing convic-
tions, the Court has emphasized concerns about the quality of the convicting
evidence, viewed with the benefit of hindsight; this is in lieu of declarations
of certainty regarding the petitioner’s innocence.137
Questionable forensic science, in particular, has triggered this same mode
of judicial analysis. Faced with new understandings of scientific claims used
against a defendant, the Court of Appeal has responded by quashing the
doubtful conviction—again, not because innocence has been proven, but
because “the expert trial evidence was shown to be either simply unfounded
or invalid due to subsequent scientific developments.”138 Because the CCRC
is charged with referring cases that raise a “real possibility” that the Court of
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Appeal would quash the conviction, the focus throughout the post-conviction
process remains on miscarried justice, rather than whether the petitioner has
satisfactorily proven innocence.
A miscarriage of justice has occurred when a verdict is “unsafe”; the
“overriding issue is the safety of the conviction.”139 The Court of Appeal has
expressed this standard in different ways. One interpretation centers on “real
doubts” about guilt.140 Another considers whether it “appears that a person
may have been convicted of a crime which he may not have committed,” and
contemplates all manner of evidentiary error that might have tainted the trial
verdict.141 Subtle differences aside, the resulting framework for post-conviction
review determines whether guilt, not innocence, remains adequately proven.
Compare this to North Carolina’s threshold for granting relief. The
three-judge panel must be unanimous by a standard of “clear and convinc-
ing evidence that the convicted person is innocent of the charges.”142 In this
standard, we see the grafting onto all innocence claims of the expectations
conditioned by DNA exonerations. Given the burden of proving innocence
and the quantum of evidence needed to do so, it comes as no surprise that
non-DNA cases have not fared well.143 To find innocence, the law demands
certain (or, at least, clear and convincing) proof of innocence; deficiencies in
proof of guilt, no matter how pronounced, will not suffice.
SBS cases show why this demand may be impossible to satisfy, even for
the factually innocent.144 Triad-only convictions rest entirely on understand-
ings of medical science, which are conceded by all to have limits. Medical
mysteries exist—“idiopathic” is the term for conditions of no known cause.
Audrey Edmunds, the Wisconsin caregiver who was exonerated (chapter 2),
still does not know the cause of the baby’s death.145
To insist that defendants prove their innocence in these cases is to require
they locate a cause of death or injury—to find an explanation that may lie
outside the bounds of not only their own understanding, but also of existing
medical knowledge. As much as we might wish otherwise, these confines exist.
For defendants in this position, an affirmative proof-of-innocence require-
ment elides the possibility that evidence of guilt is woefully inadequate. In the
paradigmatic triad-only case, the prosecution relied on trial testimony that
whoever was with the baby when the baby collapsed must have been respon-
sible. This notion turned out not to be true. A demand for “clear and convinc-
ing evidence of innocence” effectively severs proof of innocence from (lack
of ) proof of guilt and dictates that only the first matters.
Though attractive in its simplicity, this is not a sensible way of divining the
likelihood of innocence. While factual innocence is the ultimate concern of
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Reform • 217
an innocence commission, proof of guilt surely bears on this inquiry.146 Thus

viewed, evidence can be exculpatory not only when it constructs an affirma-
tive theory of innocence—what happened to the baby—but also when it
substantially weakens the state’s theory of guilt. To be considered innocent,
the defendant should not have to prove what actually caused the baby to
collapse.147
The U.S. Supreme Court announced decades ago that, “[o]nce a defendant
has been afforded a fair trial and convicted of the offense for which he was
charged, the presumption of innocence disappears.”148 Even so, this articula-
tion raises more questions than it answers. Perhaps the Court meant that a
defendant found guilty is presumably guilty, which makes sense. But in this
age of DNA exonerations and the proliferation of post-conviction review
mechanisms, we know this: the presumption is not, and cannot be, conclu-
sive.149 Still we lack a conceptual framework for deciding how the presump-
tion of guilt can be overcome.150
The DNA exonerations changed the way we think about wrongful con-
victions and even our collective willingness to address what is now widely
perceived as a problem. But if the lesson learned151 is that apparently certain
innocence is the only kind of innocence, this criminal justice revolution will
have stalled. What the DNA exonerations taught, or perhaps reminded, is
that the system is fallible. After the presumption of innocence disappears, it
leaves behind, or should, a measure of agnosticism.152
In the story of SBS, we see too little epistemological humility, com-
pounded by a reluctance to entertain even the possibility of past error. This is
not a course to pursue. Rather, we can move forward only by going back, with
a steadfast commitment to reassess convictions whose center does not hold.
Should our orientation toward these cases evolve in enduring ways, the legacy
of injustice will encompass more than needless suffering.
11_9780199913633.indd 217 1/29/2014 1:13:36 PM

11_9780199913633.indd 218 1/29/2014 1:13:36 PM
NOTES
Introduction
* Oxford Dictionaries Online (2013), http://www.oxforddictionaries.com/us/
definition/american_english/conviction
1. The first comprehensive effort to collect nationwide data is in progress, under the
auspices of Northwestern University’s Medill Justice Project. Cat Zakrzewski,
Medill Justice Project Makes Strides in Shaken Baby Syndrome Cases, Daily
Northwestern (Feb. 19, 2013). This effort is long overdue. According to the
National Center on Shaken Baby Syndrome, an estimated 1,200 to 1,400 children
are diagnosed with SBS each year. National Center on Shaken Baby Center, About the
Center, available at http://dontshake.org/sbs.php?topNavID=2&subNavID=10.
Of course this figure does not tell us how many cases resulted in criminal justice
intervention, or anything about their outcomes.
2. Since Edmunds, I reviewed more than three hundred opinions, published between
January 2008 and July 2013, involving SBS prosecutions. I also read scores of older
cases involving the triad.
3. Chapter 7 discusses cases that were not prosecuted criminally but were pursued by
Child Protective Services.
4. This account contributes to the next generation of wrongful convictions literature,
which criminologist Richard Leo has described as a “body of theoretically informed
and policy-relevant knowledge” on the subject. Richard A. Leo, Rethinking the Study
of Miscarriages of Justice, 21 J. Contemp. Crim. Just. 201, 213 (2005).
5. Id. at 210–11 (citing the overlooked importance of “interaction effects between
different sources of error or across multiple stages of the criminal process”).
6. Miscarriages of justice “typically involve[] a series of actors whose decisions were, in
all likelihood, made in the good faith belief that the suspect or defendant was guilty,
although later those beliefs turned out to be wrong.” Id. at 215.
12_9780199913633_endnote.indd 219 1/29/2014 8:24:34 PM

220 • Notes to pages 1–4
C h a p t er 1
1. A. N. Guthkelch, Infantile Subdural Haematoma and Its Relationship to Whiplash

Injuries, Brit. Med. Journal 430 (1971).
2. John Caffey, On the Theory and Practice of Shaking Infants, 124 Amer. J. Dis.
Child 161 (1972); John Caffey, The Whiplash Shaken Infant Syndrome: Manual
Shaking by the Extremities with Whiplash-Induced Intracranial and Intraocular
Bleedings, Linked with Residual Permanent Brain Damage and Mental Retardation,
54 Pediatrics 396 (1974).
3. Caffey, On the Theory and Practice of Shaking Infants, supra note 2, at 163–65.
4. Caffey, The Whiplash Shaken Infant Syndrome, supra note 2, at 402.
5. Stephen Ludwig & Matt Warman, Shaken Baby Syndrome: A Review of 20 Cases, 13
Annals of Emergency Med. 104 (1984).
6. Jacy Showers, Preventing Shaken Baby Syndrome, in Shaken Baby
Syndrome: A Multidisciplinary Approach 350 (Stephen Lazoritz &
Vincent J. Palusci eds., 2001).
7. State v. Schneider, No. L-84-214, 1984 WL 3719 (Ohio Ct. App. Dec. 21, 1984).
8. As Doctor Caffey wrote in 1974, “whiplash shaking may be the cause [of subdural
hematoma] in many patients,” and “subdural hematoma should never be excluded
because of any absence of a history of trauma, or absence of external signs of trauma
to the head or eyes in the physical examination.” Caffey, Whiplash Shaken Infant
Syndrome, supra note 2, at 401.
9. In a 2012 essay reflecting on his seminal article, published four decades earlier,
Doctor Guthkelch emphasized that his research should never have been interpreted
to suggest a pathognomonic relationship between the triad and shaking. A. N.
Guthkelch, Problems of Infant Retino-Dural Hemorrhage with Minimal External
Injury, 12 Hous. J. Health L. & Pol’y 201, 206 (2012). With regard to the
cases upon which the original theory was derived, Guthkelch explained, shaking
“may have triggered a subdural hemorrhage or rehemorrhage.” However, it was
“unwarranted to go from this possibility to the assumption that unexplained
subdural hemorrhages, with or without retinal hemorrhage or encephalopathy, are
caused by violent shaking or other forms of abuse.” Id.
10. Showers, supra note 6.
11. Am. Acad. of Pediatrics, Shaken Baby Syndrome: Inflicted Cerebral Trauma, 92
Pediatrics 872 (1993).
12. In 2009, the American Academy of Pediatrics shifted its official stance on SBS,
revising the name to “Abusive Head Trauma” (AHT) and reconsidering the
diagnostic significance of the triad. Cindy W. Christian et al., Am. Acad. of
Pediatrics, Abusive Head Trauma in Infants and Children, 123 Pediatrics 1409
(2009). According to the new statement,
A medical diagnosis of AHT is made only after consideration of all the clinical
data. On some occasions, the diagnosis is apparent early in the course of the evalua-
tion, because some infants and children have injuries to multiple organ systems that
12_9780199913633_endnote.indd 220 1/29/2014 8:24:35 PM

Notes to Pages 4–6 • 221
could only be the result of inflicted trauma. On other occasions, the diagnosis is less
certain, and restraint is required until the medical evaluation has been completed.
Id.
13. The Academy explained, “[t]he cranial cerebral injuries documented in abused
children depend on the force or severity of the shake or shake plus impact and
the time elapsed from the injury. Subdural hemorrhage caused by shearing forces
disrupting small bridging veins over the surface of the brain is a common result
of shaking. . . . However, cerebral edema with or without subarachnoid hemorrhage
may be the only finding. Visible cerebral contusions are unusual, but diffuse axonal
injury is probably frequent.” Id. at 873.
14. See id. (“Retinal and vitreous hemorrhages and nonhemorrhagic changes including
retinal folds and traumatic retinoschisis are characteristic of shaken baby syndrome.”)
15. See, e.g., Debra Rosenberg & Evan Thomas, “I Didn’t Do Anything,” Newsweek
(Nov. 10, 1997).
16. The hypothesis had gained “acceptance and enormously widespread popularity,
with no real investigation or even question as to its scientific validity.” Ronald
Uscinski, Shaken Baby Syndrome: An Odyssey, 46 Neurol. Med. Chir. 57, 58
(2006).
17. A 2001 position paper of the National Association of Medical Examiners (NAME)
articulated a similar claim: “Fatal accidental shearing or diffuse brain injuries
require such extremities of rotational force that they occur only in obvious incidents
such as motor vehicle accidents. Besides vehicular accidents, other fatal accidental
childhood head injuries tend to involve crushing or penetrating trauma, which is
readily evident. These injuries tend to be the result of falling from considerable
heights (greater than 10 feet) or having some object penetrate the head.” Mary
E. Case et al., Nat’l Ass’n of Med. Examiners Ad Hoc Comm. on Shaken Baby
Syndrome, Position Paper on Fatal Abusive Head Injuries in Infants and Young
Children, 22 Am. J. Forensic Med. & Pathology 112, 120 (2001).
18. In its position paper, NAME advanced the “generally accepted” position that
“playful practices do not result in injuries to the young child’s brain. The type of
shaking that is thought to result in significant brain injury involves holding the
child by the thorax or an extremity and violently shaking the child back and forth,
causing the head to forcefully whiplash forward and backward with repeated
accelerations and decelerations in each direction.” Id. at 113.
19. See Am. Acad. of Pediatrics, Shaken Baby Syndrome: Rotational Cranial Injuries—
Technical Report, 108 Pediatrics 206, 207 (2001) (“[C]linical signs of shaken
baby syndrome are immediate and identifiable as problematic. . . . In the most
severe cases, which usually result in death or severe neurologic consequences, the
child usually becomes immediately unconscious and suffers rapidly escalating,
life-threatening central nervous system dysfunction.”); Case, supra note 17, at 118
(“Studies in children with nonaccidental head injuries also indicate that they show
an immediate decrease in their level of consciousness at injury.”).
12_9780199913633_endnote.indd 221 1/29/2014 8:24:36 PM

222 • Notes to pages 6–13
20. See Am. Acad. of Pediatrics, Shaken Baby Syndrome: Rotational Cranial Injuries,
supra note 19, at 207 (describing retinal hemorrhages as “characteristic” of SBS and
present in 75 percent to 90 percent of cases).
21. State v. McClary, 541 A.2d 96, 102 (Conn. 1988).
22. Id. at 98–99.
23. People v. Hersey, 925 N.Y.S.2d 314, 315 (App. Div. 4th 2011).
24. Transcript of Record, People v. DelPrete (2005) (No. 03 CF 199) at 1123, 1132,
1136–37, 1144.
25. Id. at 557, 1431.
26. Id. at 295–97.
27. Id. at 1431–32.
28. Id. at 485–86.
29. Id. at 976–78.
30. Id. at 355.
31. Id. at 355–56. Throughout the book, trial transcripts are generally left unedited
(with the occasional exception of changed capitalization and corrected spelling) in
order to most accurately reflect how the testimony was received in evidence.
32. Id. at 367.
33. Id. at 448.
34. Id. at 441–42.
35. Id. at 448.
36. Id. at 457–60.
37. Id. at 460.
38. Id. at 463–64.
39. Id. at 470–77.
40. Id. at 485–87.
41. Id. at 491.
42. Id. at 495–501, 504.
43. Id. at 238, 375, 398.
44. Id. at 402.
45. Id. at 299, 303, 335–37, 337.
46. Id. at 325.
47. Id. at 354–56, 363.
48. Id. at 802–03.
49. Id. at 703–04, 713–14, 718, 715, 719, 744, 751–55.
50. Id. at 978–82.
51. See Katie Brennan, Dan Tham, and Yoonie Yang, Tia’s Story, Medill Justice
Project (Sept. 5, 2012).
52. Jerry M. Burger, Motivational Biases in the Attribution of Responsibility for an
Accident: A Meta-Analysis of the Defensive-Attribution Hypothesis, 90 Psychological
Bulletin 496 (1981) (citations omitted) (“Unfortunately, extensive research has
revealed that the intuitive psychologist’s attributions of causality are subject to numerous
distortions. Among the proposed sources of attributional ‘error’ is the distortion or
12_9780199913633_endnote.indd 222 1/29/2014 8:24:36 PM

biasing of perceptions of causality to satisfy the perceiver’s personal motivations. The

role of motivational distortion in causal attributions has been outlined theoretically
and has been the focus of considerable research and controversy.”).
53. The phenomenon appears to be “quite robust,” according to an extensive review,
though researchers continue to study the conditions under which it is found. Id. at
510. For a more recent meta-analysis, see Jennifer K. Robbennolt, Outcome Severity
and Judgments of “Responsibility”: A Meta-Analytic Review, 30 J. Applied Social
Pyschology 2575 (2000).
54. Burger, supra note 52, at 511.
55. “In defensive attributions, people would rather blame a person for adversity, especially
the worse it is, because then it gives them the feeling that they personally can avoid
it. . . . By definition, a defensive attribution makes it self-protective to believe that a bad
event will not happen to you, a common human belief. Is it rational? Is it logical? No.
But it’s part of people’s need to feel in control of their lives.” Susan T. Fiske, Social
Beings: Core Motives in Social Psychology 117 (2004).
56. Elaine Walster, Assignment of Responsibility for an Accident, 3 J. Personality &
Social Pyschology 73, 74 (1966).
57. See Alan Chaikin & John M. Darley, Victim or Perpetrator?: Defense Attribution of
Responsibility and the Need for Order and Justice, 25 J. Personality & Social
Pyschology 268 (1973).
58. Id.; see also Kelly G. Shaver, Defensive Attribution: Effects of Severity and Relevance
on the Responsibility Assigned for an Accident, 14 J. Personality & Social
Psychology 101 (1970); V. Lee Hamilton, Who Is Responsible? Toward a Social
Psychology of Responsibility Attribution, 41 Social Psychology 316 (1978); Mark
D. Alicke, Culpable Control and the Psychology of Blame, 126 Pyschological
Bulletin 556 (2000).
59. Jennifer S. Lerner et al., Sober Second Thought: The Effects of Accountability, Anger,
and Authoritarianism on Attributions of Responsibility, 24 Personality &
Social Pyschology Bulletin 563 (1988).
60. Daniel Kahneman, Thinking, Fast and Slow 10 (2011).
61. Id. at 3.
62. See id. at 103; see also Cass R. Sunstein, Hazardous Heuristics, 70 U. Chi. L. Rev.
751, 770 (2003) (stating “[i]n many contexts, people’s emotional reactions are
substituting for a more careful inquiry into the (factual?) issues at stake”).
63. Jay Belsky, The “Effects” of Infant Day Care Reconsidered, 3 Early Childhood
Res. Q. 227 (1988).
64. Ellen Ruppel Shell, Babes in Day Care, 262 Atlantic Monthly 73 (1988).
65. Glenn Collins, Day Care for Infants: Debate Turns to Long-Term Effects, N.Y. Times
(Nov. 25, 1987).
66. See id. (“there is every reason to believe that both children and families can thrive
[given] access to stable child-care arrangements featuring skilled, sensitive, and
motivated care-givers”); see also Belinda Luscombe, Working Moms’ Kids Turn Out
Fine, 50 Years of Research Says, Time.com (Oct. 18, 2010).
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224 • Notes to Page 15
67. Collins, supra note 65 (“It doesn’t make any difference whether the child is home
or in a center, that child will do just fine if the care is good. . . . The only argument is
over care during that first year.”).
68. As one newspaper account noted, “What would seem to be a subtle academic
disagreement has been given new importance by a startling statistic: The majority
of mothers of children 1 year old or younger are in the labor force—51.9 percent of
them, according to the most recent data from the Bureau of Labor Statistics.” Id.
69. Since reaching its peak in 1997, the labor participation rate of married women
with children under a year old has fluctuated somewhat, while remaining above
50 percent. See Sharon R. Cohany et al., Trends in Labor Force Participation of
Married Mothers of Infants, Monthly Labor Review 9–16 (2007) (analyzing
the demographic characteristics of this group of working mothers).
70. Jennifer Ehrle et al., Who’s Caring for Our Youngest Children? Child Care Patterns of
Infants and Toddlers, Urb. Inst. 1, 4 ( Jan. 1, 2001); see also Lynda Laughlin, Who’s
Minding the Kids? Child Care Arrangements: Spring 2005 and Summer 2006,
Current Population Rep. 70 (Aug. 2010).
71. Bureau of Labor Statistics, Occupational Outlook Handbook, U.S. Dep’t of Labor
(Oct. 26, 2009).
72. When researchers in 2010 reanalyzed an earlier dataset from the National
Institute of Child Health and Human Development Study of Early Child Care,
the New York Times reported, “Phew. That was the sound of millions of working
mothers breathing a sigh of relief, after a new study found that the decision of
many mothers to work during the first year of their children’s lives is not such a
bad thing at all.” Motoko Rich, Don’t Worry, Working Moms, N.Y. Times (Aug.
3, 2010).
73. Collins, supra note 65 (“The impact of this dispute has been of concern to
researchers who say that both Republications and Democrats have oversimplified
the findings to fuel an argument over whether the growing number of working
mothers threatens traditional family values.”); see also Erik Eckholms, Learning
if Infants Are Hurt When Mothers Go to Work, N.Y. Times (Oct. 6, 1992) (“The
issues at the heart of the research have generated acid exchanges among scientists,
sown fear and guilt among millions of parents, been fashioned into rhetorical
clubs for bashing or defending feminism and even provided raw material for this
year’s Presidential campaign. The inner conflict and public debate reflect a swift
transformation of the American family.”).
74. Carol Sanger, Separating from Children, 96 Colum. L. Rev. 375, 387 (1996).
For a historical overview of the construction of “bad motherhood,” see Molly
Ladd-Taylor & Lauri Umansky, Introduction to “Bad” Mothers: The Politics
of Blame in Twentieth-Century America 1–28 (Molly Ladd-Taylor &
Lauri Umansky eds., 1998).
75. Sanger has written that “[s]eparating from children, however briefly, necessarily
defies the order and comfort inherent in the habits and ideology of separate
12_9780199913633_endnote.indd 224 1/29/2014 8:24:36 PM

spheres.” Sanger, supra note 74, at 387. Sanger further postulates: “The sheer
number of working mothers puts immense pressure on the well-maintained
ideology of separate spheres. For nearly two centuries, lodging mothers safely,
productively, and nonthreateningly at hearthside was a matter of scientific fact,
religious dictate, legal regulation, and social imperative.” Id. at 465. Put differently,
mothers who return to the workforce when their children are very young threaten
fundamental beliefs about gender, family structure, and social organization. See
Kathleen McCartney & Deborah Phillips, Motherhood and Child Care, in The
Different Faces of Motherhood 157 (Beverly Birns & Dale Hays eds.,
1988) (observing that “our society’s profound ambivalence about child care
reflects concerns that child care poses a threat to motherhood and the sanctity of
the family.”); see also Molly Ladd-Taylor & Lauri Umansky, supra note 74, at 16
(“Despite—or perhaps because of—the fact that more than half of all mothers
return to work before their children are out of diapers, working mothers too are
blamed for our current social ills.”).
76. Id. at 158.
77. Id. at 172–79. The cultural construction of the working mother of young children
has evolved over time, with much the same effect. As Kathleen McCartney and
Deborah Phillips observed, “[m]others who use child care have been characterized
as inadequate, patriotic, deprived, and now conflicted. These portrayals have
carefully protected our deeply held belief that children fare best when they are
reared exclusively by their mothers.” Id. at 163.
78. While mothers are occasionally prosecuted for shaking their own babies, the
paradigmatic case involves non-maternal care providers, most often sitters,
fathers, and mothers’ boyfriends. See Stephen C. Boos, Abusive Head Trauma
as a Medical Diagnosis, in Abusive Head Trauma in Infants and
Children: A Medical, Legal, and Forensic Reference 62 (Lori Frasier
et al. eds., 2006).
79. “Societies appear to be subject, every now and then, to periods of moral panic.
A condition, episode, person or group of persons emerges to become defined as
a threat to societal values and interests; its nature is presented in a stylized and
stereotypical fashion by the mass media; the moral barricades are manned by
editors, bishops, politicians and other right-thinking people; socially accredited
experts pronounce their diagnoses and solutions. . . . Sometimes the panic passes
over and is forgotten, except in folklore and collective memory; at other times it
has more serious and long-lasting repercussions and might produce such changes
as those in legal and social policy or even in the way the society conceives itself.”
Stanley Cohen, Folk Devils and Moral Panics: The Creation of
the Mods and Rockers 1 (3d ed. 2002). For a discussion of how moral panics
implicate the criminal law, see Erich Goode & Nachman Ben-Yehuda, Deviance,
Morality, and Criminal Law, in Moral Panics: The Social Construction
of Deviance 109–28 (2d ed. 2009).
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226 • Notes to Pages 16–17
80. Similar connections have been drawn in other contexts in which caregivers have
been wrongly accused of abuse—most notably, to explain the satanic abuse
allegations that consumed the country in the 1980s. According to Margaret Talbot,
who has written extensively about these cases,
Our willingness to believe in ritual abuse was grounded in anxiety about put-
ting children in day care at a time when mothers were entering the work force
in unprecedented numbers. It was as though there were some dark, self-defeating
relief in trading niggling everyday doubts about other children’s care for our abso-
lute worst fears—for a story with monsters, not just human beings who didn’t
always treat our kids exactly as we would like; for a fate so horrific and bizarre that
no parent, no matter how vigilant, could have ever prevented it.
Margaret Talbot, The Devil in the Nursery, New York Times Magazine ( Jan. 7,
2001).
Chapter 2
1. Carole Jenny, Presentation on The Mechanics: Distinguishing AHT/SBS from

Accidents and Other Medical Conditions, New York City Abusive Head Trauma/
Shaken Baby Syndrome Training Conference (Sept. 23, 2011).
2. See Jeremy H. Howick, The Philosophy of Evidence-Based Medicine
(2011); Evidence-Based Medicine Working Group, Evidence-Based Medicine: A New
Approach to Teaching the Practice of Medicine, 268 JAMA 2420 (1992).
3. David L. Sackett & William M. C. Rosenberg, The Need for Evidence-Based Medicine,
88 J. Royal Society of Med. 620, 622 (1995).
4. “1998/1999 is regarded as the turning point in acceptance of the tenets and practice
of EBM.” Mark Donohoe, Evidence-Based Medicine and Shaken Baby Syndrome: Part
I: Literature Review, 1966–1998, 24 Am. J. Forensic Med. & Pathology 239,
239 (2003).
5. Howick, supra note 2, at 15 (citation omitted).
6. Donohoe, supra note 4. Donohoe applied evidence ratings “defined worldwide as an
appropriate scale for review of quality of evidence.” Id. at 239. For a definition of the
ratings on which he relied, see id. at 240.
7. Hymel et al., Abusive Head Trauma, in Child Abuse and Neglect: Diagnosis,
Treatment, and Evidence 349, 350 (Carole Jenny ed., 2011).
8. See Jennifer L. Mnookin et al., The Need for a Research Culture in the Forensic Sciences,
58 UCLA L. Rev. 725, 741 (2011) (“Large numbers of physicians make regular use
of empirical research in selecting their diagnoses and treatment regimes without
participating in its production. Their training may enable them to be intelligent
consumers of medical research.”).
9. See William A. Silverman, Where is the Evidence?: Debates in Modern
Medicine (1998).
12_9780199913633_endnote.indd 226 1/29/2014 8:24:36 PM

10. “Level I evidence is based on results from large randomized, controlled trials.
Level II evidence is obtained from at least one well-designed experimental
study or a randomized study with a high false positive rate, a high false negative
rate, or both (low power). Level III evidence is obtained from well-designed
quasi-experimental studies, such as matched case-control series. Level IV evidence
is obtained from well-designed nonexperimental studies, such as comparative
studies and case studies. Level V evidence comes from case reports and clinical
examples.” David H. Kaye et al., The New Wigmore: A Treatise on
Evidence: Expert Evidence 385 (Aspen Publishers 2011) (quoting Breast
Cancer Management: Application of Evidence to Patient Care
( Jean-Marc Nabholtz et al. eds., 2000). See also John Concato et al., Randomized,
Controlled Trials, Observational Studies, and the Hierarchy of Research Designs, 342
New Eng. J. Med. 1887 (2000).
11. Donohoe, supra note 4, at 239.
12. Id. at 241.
13. Id.
14. Id. As defenders of the scientific research are quick to note, there are obvious
“difficulties in performing experiments” in this area because “[i]t is clearly unethical
to intentionally shake infants to induce trauma.” Id. at 239.
15. Researchers “select[ed] cases by the presence of the very clinical findings and test
results they [sought] to validate as diagnostic.” Id.
16. Id.
17. Patrick D. Barnes, Imaging of the Central Nervous System in Suspected or Alleged
Nonaccidental Injury, Including the Mimics, 18 Topics Magnetic Resonance
Imaging 53, 55 (2007).
18. Donohoe, supra note 4, at 241.
19. Id.
20. Jan E. Leestma, “Shaken Baby Syndrome”: Do Confessions by Alleged Perpetrators
Validate the Concept?, 11 J. Am. Physicians & Surgeons 14 (2006).
21. Id.
22. See David H. Freedman, Lies, Damned Lies, and Medical Science, The Atlantic
(Oct. 4, 2010); see also John P. A. Ioannidis, Why Most Published Research
Findings Are False, 2 PLoS Med. 696 (2005); John P. A. Ioannidis, Contradicted
and Initially Stronger Effects in Highly Cited Clinical Research, 294 JAMA 218
(2005).
23. Freedman, supra note 22.
24. Id.
25. Inflicted Childhood Neurotrauma, Proceedings of a Conference held in Bethesda
MD, Oct. 10–11, 2002, and Sponsored by the Department of Health and Human
Services (HHS), the National Institutes of Health (NIH), the National Institute
of Child Health and Human Development (NICHD), the Office of Rare Diseases
(ORD), and the National Center for Medical Rehabilitation Research (NCMRR)
12_9780199913633_endnote.indd 227 1/29/2014 8:24:37 PM

(Robert M. Reece & Carol E. Nicholson, eds.) (American Academy of Pediatrics

2003) at ix. For a discussion of the proceedings, see Findley et al., Shaken Baby
Syndrome, Abusive Head Trauma, and Actual Innocence: Getting It Right, 12 Hous.
J. Health L. & Policy 209, 233–36 (2012).
26. Inflicted Childhood Neurotrauma, supra note 25, at ix.
27. Patrick D. Barnes, Ethical Issues in Imaging Nonaccidental Injury: Child Abuse, 13
Topics Magnetic Resonance Imaging 85, 89 (2002); see also Marguerite
M. Caré, Neuroradiology, in Abusive Head Trauma in Infants and
Children: A Medical, Legal, and Forensic Reference 89 (Lori Frasier
et al. eds., 2006).
28. For an alternative diagnostic formulation, see Waney Squier, Retino-Dural
Hemorrhage of Infancy, in Wiley Encyclopedia of Forensic Science (A.
Jamieson and A. A. Moenssens eds., 2013). I discuss this suggestion more fully in
chapter 5.
29. For a discussion of the “critical role that groups play in social epidemics,” see Power
of Context (Part Two), in Malcolm Gladwell, The Tipping Point: How
Little Things Can Make a Big Difference 169, 171 (2000).
30. Robert M. Reece, What Does the Recent Literature Tell Us About Shaken Baby
Syndrome, The N. Ctr. on Shaken Baby Syndrome, http://dontshake.org/
sbs.php?topNavID=3&subNavID=25&subnav_1=803&navID=805 (last visited
Apr. 14, 2013) (quoting Robert Minns, Shaken Baby Syndrome: Theoretical and
Evidential Controversies, 35 J. Royal Coll. Physicians 5–15 (2005)).
31. See, e.g., Lucy B. Rorke-Adams, Editors’ Choice Letter Sent to New York Times,
PublishaLetter, http://www.publishaletter.com/editorchoiceletter.jsp?plid=
22196 (Sept. 22, 2010) (explaining it is false to state that “a diagnosis of shaken baby
syndrome is based upon the ‘triad’ of retinal hemorrhages, bleeding around the
brain and brain swelling.”); Thomas L. Slovis et al., The Creation of Non-Disease: An
Assault on the Diagnosis of Child Abuse, 42 Pediatric Radiology 903 (referring
to “the triad of subdural hematoma, retinal hemorrhage, and multiple fractures” as
strongly suggestive of non-accidental trauma) (emphasis added); see also supra note
1 and accompanying text.
32. J. F. Geddes et al., Neuropathy of Inflicted Head Injury in Children, I. Patterns of
Brain Damage, 124 Brain 1290 (2001); J. F. Geddes et al., Neuropathy of Inflicted
Head Injury in Children, II. Microscopic Brain Injury in Infants, 124 Brain 1299
(2001).
33. See Neil Stoodley, Non-Accidental Head Injury in Children: Gathering the
Evidence, 360 The Lancet 272 (2002); Findley et al., Shaken Baby Syndrome,
Abusive Head Trauma, and Actual Innocence: Getting It Right, supra note 25;
Waney Squier, The Shaken Baby Syndrome: Pathology and Mechanisms, 122 Acta
Neuropathologica 519 (2011); Evan Matshes, Retinal & Optic Nerve Sheath
Hemorrhages Are Not Pathognomonic of Abusive Head Injury, 16 Proc. of the
Am. Acad. Forensic Sci. 272 (2010).
12_9780199913633_endnote.indd 228 1/29/2014 8:24:37 PM

34. See Waney Squier & Julie Mack, The Neuropathy of Infant Subdural Haemorrhage,
187 Forensic Sci. Int’l 6 (2009).
35. See, e.g., Mark S. Dias, The Case for Shaking, in Child Abuse and
Neglect: Diagnosis, Treatment, and Evidence 364, 370 (Carole Jenny
ed., 2011) (“It is becoming increasingly clear from both neuroimaging studies
and post-mortem analyses of fatal cases that the widespread cerebral and axonal
damage in cases of AHT are, in fact, ischemic rather than directly traumatic in
nature.”). Some physicians remain skeptical of this new understanding. See Lucy
B. Rorke-Adams, The Triad of Retinal Haemorrhage, Subdural Haemorrhage
and Encephalopathy in an Infant Unassociated with Evidence of Physical Injury
Is Not the Result of Shaking But Is Most Likely to Have Been Caused by a Natural
Disease—The “No” Case, 3 J. of Primary Health Care 161, 162 (referring to
the Geddes study as “the evil genie [that] had escaped Pandora’s box,” and asserting
that “to date, no reliable evidence base supporting a pathogenetic relationship
between hypoxia-iscehmia and subdural bleeding or retinal haemorrhages has been
forthcoming”).
36. Cindy W. Christian et al., Am. Acad. of Pediatrics, Abusive Head Trauma in Infants
and Children, 123 Pediatrics 1409 (2009).
37. Id.; “Case histories clearly support the conclusion that shaking occurs in some injury
scenarios. . . . [T]he Commonality of a described shaking mechanism along with
the infrequency of impact evidence supports shaking as an important mechanism
of AHT.” Id. at 1409.
38. See id. at 1411 (stating that the use of “shaken baby syndrome” is problematic
because it “implies a single injury mechanism”).
39. Hymel et al., supra note 7, at 349–50.
40. Christian et al., Am. Acad. of Pediatrics, Abusive Head Trauma in Infants and
Children, supra note 36, at 1410.
41. Id.
42. Id.
43. The possibility that impact played a role in SBS was introduced decades earlier, when
a study by Doctor Ann-Christine Duhaime concluded, “the shaken baby syndrome,
at least in its most severe acute form, is not usually caused by shaking alone. Although
shaking may, in fact, be a part of the process, it is more likely that such infants suffer
blunt impact.” Duhaime et al., The Shaken Baby Syndrome: A Clinical, Pathological,
and Biomechanical Study, 66 J. Neurosurg. 409, 414 (1987).
44. “If the head strikes a soft padded surface, contact forces will be dissipated over
a broad area and external or focal injuries may be undetectable.” Ann-Christine
Duhaime et al., Head Injury in Very Young Children: Mechanisms, Injury Types, and
Ophthalmologic Findings in 100 Hospitalized Patients Younger Than 2 Years of Age,
90 Pediatrics 179, 183 (1992).
45. The Academy has most recently acknowledged that the triad may reflect impact
injury alone, while insisting that “[l]egal challenges to the term ‘shaken baby
12_9780199913633_endnote.indd 229 1/29/2014 8:24:37 PM

syndrome’ can distract from the more important questions of accountability of

the perpetrator.” Christian et al., Am. Acad. of Pediatrics, Abusive Head Trauma
in Infants and Children, supra note 36, at 1410. This analysis begs the question of
whether impact is necessarily the result of abuse. If not, there is no “perpetrator” and
no need for accountability. Put differently, without evidence to support it, the mere
assumption that impact injuries are abusive is problematic, from the perspective of
both science and criminal law.
46. Stephen C. Boos, Abusive Head Trauma as a Medical Diagnosis, in Abusive Head
Trauma in Infants and Children: A Medical, Legal, and Forensic
Reference 50 (Lori Frasier et al. eds., 2006).
47. “The injury may be associated with bilateral retinal hemorrhage, and an
associated subdural hematoma may extend into the interhemispheric fissure.”
John Plunkett, Fatal Pediatric Head Injuries Caused by Short-Distance Falls, 22
Am. J. Forensic Med. & Pathology 1, 10 (2001). See Patrick E. Lantz &
Daniel E. Couture, Fatal Acute Intracranial Injury, Subdural Hematoma, and
Retinal Hemorrhages Caused by Stairway Fall, 56 J. Forensic Sciences 1648–
53 (2011). See generally Scott Denton et al., Delayed Sudden Death in an Infant
Following an Accidental Fall: A Case Report With Review of the Literature, 24 Am.
J. Forensic Med. & Pathology 371 (2003); see also Findley et al., Shaken
Baby Syndrome, Abusive Head Trauma, and Actual Innocence: Getting It Right,
supra note 25, at 232 n.75 (describing two recent videotaped short falls resulting
in death). On the forces involved in short falls as compared to shaking, see Ayub
Khan Ommaya, Biomechanics and Neuropathology of Adult and Paediatric Head
Injury, 16 Brit. J. Neurosurg. 220, 226 (2002).
48. Id.; see also Paul Steinbok et al., Early Hypodensity on Computed Tomographic
Scan of the Brain in an Accidental Pediatric Head Injury, 60 Neurosurgery 689
(2007) (describing fatalities from falling down stairs and falling from a stool).
49. See, e.g., David L. Chadwick et al., Annual Risk of Death Resulting from Short Falls
Among Young Children: Less Than 1 in 1 Million, 121 Pediatrics 1213 (2008);
see also Findley et al., Shaken Baby Syndrome, Abusive Head Trauma, and Actual
Innocence: Getting It Right, supra note 25, at 247–49.
50. Johnathon P. Ehsani describes two different perspectives on the short fall data: “[A]
systemic review using the public health paradigm asks the question ‘Are simple short
falls a significant cause of harm warranting the development of programs focusing
on prevention?’ A review using the medico-legal paradigm asks, ‘Can a simple short
fall cause fatal head injury in an infant?’ Although the questions appear similar,
they are different and the approach and conclusions have substantially different
application, especially in a criminal court where the focus is on a single case and the
guilt of the accused must be established beyond a reasonable doubt.” Johnathon
P. Ehsani et al., The Role of Epidemiology in Determining if a Simple Short Fall Can
Cause Fatal Head Injury in An Infant, 31 Am. J. Forensic Med. Pathology 287,
297 (Sept. 2010).
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51. Ex Parte Cathy Lynn Henderson, No. AP-76, 925, 2012 WL 6027455 (Tex. Crim.
App. 2012).
52. Id.
53. As the concurrence noted, “[s]cience cannot answer the question of whether [the
baby’s] death was the result of an intentional homicide. It could have been an
intentional homicide; it could have been an accident.” Id.
54. The court conceived this change as “a material exculpatory fact.” Id.
55. The concurrence went farther, referring to this belief as “now-discredited.” Id.
56. Transcript Excerpt of Dr. Mark D. at 30–31, Pennsylvania v. Flores-Feliciano (Sept.
30, 2013).
57. Id.
58. See Ommaya, supra note 47; Faris A. Bandak, Shaken Baby Syndrome: A
Biomechanics Analysis of Injury Mechanisms, 151 Forensic Sci. Int’l 71 (2005).
59. “As forensic pathologists are keenly aware, neck injuries in a ‘shaken’ child are a
rarity, not a commonality.” Kimberley Molina, Neck Injuries and Shaken Baby
Syndrome, 30 Am. J. Forensic Med. & Pathology 89 (2009) (citing data
presented at the Annual Meeting of the National Association of Medical Examiners
indicating 0 percent incidence of neck injuries in seventy-nine potential “shaking”
cases).
60. See Findley et al., Shaken Baby Syndrome, Abusive Head Trauma, and Actual
Innocence: Getting It Right, supra note 25, at 230 (“[I]f the brain damage was
secondary to the deprivation of oxygenated blood from any source, the ensuing
brain swelling could develop quickly or slowly, over a period of hours to days, with
collapse occurring whenever the brain’s basic needs were no longer met by the
dwindling supply of oxygenated blood.”).
61. See, e.g., Robert Huntington, Letter, Symptoms Following Head Injury, 23 Am.
J. Forensic Med. & Pathology 105 (2002).
62. See, e.g., M.G.F. Gilliland, Interval Duration Between Injury and Severe Symptoms in
Nonaccidental Head Trauma in Infants and Young Children, 43 J. Forensic Sci.
723 (1998); Kristy B. Arbogast et al., In Reply to Letter to Editor, Initial Neurologic
Presentation in Young Children Sustaining Inflicted and Unintentional Fatal Head
Injuries, 116 Pediatrics 1608 (2005). Many babies eventually diagnosed with
SBS had previously experienced mild symptoms, such as vomiting or lethargy.
Many of these symptoms are also associated with the recognized “mimics” of SBS.
For a discussion of common causes of lethargy in infancy, see Kiran V. Raman et al.,
The Lethargic Child, Emergency Med. Rep. (2011).
63. “When the triad findings result from a natural disease process, the concept of a ‘lucid
interval’ may be meaningless because there may be no sudden precipitating event.
Like any disease process, the natural mimics of child abusive head trauma . . . may
produce sudden and disastrous results, or may have a stuttering course, with a
variety of warning signs and symptoms, followed by neurological collapse.” Findley
et al., supra note 25, at 250.
12_9780199913633_endnote.indd 231 1/29/2014 8:24:37 PM

64. Hymel et al., supra note 7, at 350.

65. See Heather T. Keenan, Epidemiology of Abusive Head Trauma, in Child Abuse
and Neglect: Diagnosis, Treatment, and Evidence 35 (Carole Jenny
ed., 2011).
66. Waney Squier, The Shaken Baby Syndrome: Pathology and Mechanisms, supra note
33 (2011). Even those who dispute this figure concede that there is a relatively high
incidence of chronic bleeding where the triad is present. Heather T. Keenan, supra
note 65, at 35 (describing studies with “old brain injuries [chronic subdurals] in as
many as 30% to 45% of children who are diagnosed with AHT”).
67. “Development of chronic subdural fluid collections is far from well understood.”
Waney Squier & Julie Mack, The Neuropathy of Infant Subdural Haemorrhage,
supra note 34, at 12. Even so, child abuse doctors have at times assumed that
old bleeding is evidence of prior trauma. See Hymel et al., supra note 7, at 350
(stating “at the time of initial neuroimaging, many young victims of abusive head
trauma reveal radiological evidence of prior (and therefore repetitive) traumatic,
intracranial injuries”). At trial, as we will see, prosecution doctors have even
testified that chronic subdural blood is evidence of earlier abuse (albeit by an
unknown perpetrator).
68. See, e.g., Marta C. Cohen et al., Subdural Hemorrhage, Intradural Hemorrhage
and Hypoxia in the Pediatric and Perinatal Post Mortem: Are They Related? An
Observational Study Combining the Use of Post Mortem Pathology and Magnetic
Resonance Imaging, 200 Forensic Science International 100 (2010); Marta
C. Cohen & Irene Scheimberg, Evidence of Occurrence of Intradural and Subdural
Hemorrhage in the Perinatal and Neonatal Period in the Context of Hypoxic Ischemic
Encephalopathy, 12 Pediatric Developmental Pathology 169 (2009); Eva
Lai Wah Fung et al., Unexplained Subdural Hematoma in Young Children: Is It
Always Child Abuse?, 44 Pediatrics Int’l 37 (2002); Veronica J. Rooks et al.,
Prevalence and Evolution of Intracranial Hemorrhage in Asymptomatic Term Infants,
29 Am. J. Neuroradiology 1082 (2008).
69. See generally Waney Squier, The Shaken Baby Syndrome: Pathology and Mechanisms,
supra note 33.
70. See generally Kent P. Hymel et al., Intracranial Hemorrhage and Rebleeding in
Suspected Victims of Abusive Head Trauma: Addressing the Forensic Controversies,
7 Child Maltreatment 329 (2002); J. F. Geddes et al., Dural Hemorrhage
in Non-Traumatic Infant Deaths: Does It Explain the Bleeding in “Shaken Baby
Syndrome”?, 29 Neuropathol. Appl. Neurobiol. 14 (2003).
71. A “number of medical disorders documented in the medical peer-reviewed
literature . . . can mimic [abusive head trauma].” Andrew P. Sirotnak, Medical
Disorders That Mimic Abusive Head Trauma, in Abusive Head Trauma in
Infants and Children: A Medical, Legal, and Forensic Reference
191 (Lori Frasier et al. eds., 2006).
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Notes to Page 25 • 233
72. Patrick E. Lantz & Constance A. Stanton, Postmortem Detection and Evaluation
of Retinal Hemorrhages, 12 Proc. Am. Acad. Sci. 271 (2006); Henry E. Aryan
et al., Retinal Hemorrhage and Pediatric Brain Injury: Etiology and Review of the
Literature, 12 J. Clinical Neuroscience 624 (2005); Evan Matshes, Retinal
and Optic Nerve Sheath Hemorrhages Are Not Pathognomonic of Abusive Head
Injury, supra note 33; Juan Pablo Lopez et al., Severe Retinal Hemorrhages in Infants
with Aggressive, Fatal Streptococcus Pneumoniae Meningitis, 14 J. Am. Ass. Ped.
Opthamology & Strabismus 97 (2010); Patrick E. Lantz et al., Perimacular
Retinal Folds from Childhood Head Trauma, 328 Brit. Med. J. 754, 756 (2004);
Gregg T. Lueder et al., Perimacular Retinal Folds Simulating Nonaccidental
Injury in an Infant, 124 Archives Ophthalmology 1782 (2006); Patrick
Watts et al., Retinal Folds and Retinoschisis in Accidental and Non-Accidental
Head Injury, 22 Eye 1514 (2008). See also Findley et al., Shaken Baby Syndrome,
Abusive Head Trauma, and Actual Innocence: Getting It Right, supra note 25.
Even ophthalmologists who continue to believe in the diagnosticity of particular
patterns of retinal hemorrhages (“extensive multilayered retinal hemorrhages,
too numerous to count, extending to the ora”) have acknowledged that “there are
many areas deserving further research, such as the incidence of retinal hemorrhages
when multiple factors are combined, such as the child who has a severe accidental
head injury and then suffers from hypoxia, increased intracranial pressure, anemia,
hypotension, and coagulopathy.” Alex V. Levin, Eye Injuries in Child Abuse, in
Child Abuse and Neglect: Diagnosis, Treatment, and Evidence 402,
408 (Carole Jenny ed., 2011).
73. J. F. Geddes et al., Dural Hemorrhage in Non-Traumatic Infant Deaths: Does It
Explain the Bleeding in “Shaken Baby Syndrome”?, supra note 70; see also Evan
Matshes, Retinal and Optic Nerve Sheath Hemorrhages Are Not Pathognomonic
of Abusive Head Injury, supra note 33 (suggesting that edema and advanced
cardiac life support may contribute to retinal hemorrhages and optic nerve sheath
damage).
74. An early study to acknowledge the range of non-traumatic causes of subdural
hemorrhage was written in 2002 by three child abuse pediatricians. Kent P. Hymel
et al., Intracranial Hemorrhage and Rebleeding in Suspected Victims of Abusive Head
Trauma: Addressing the Forensic Controversies, supra note 70.
75. Id.; see also Patrick D. Barnes et al., Imaging of the Central Nervous System in
Suspected or Alleged Nonaccidental Injury, Including the Mimics, supra note 17
(summarizing known non-traumatic causes of the triad).
76. See Andrew P. Sirotnak, supra note 71; Waney Squier & Lucy B. Rorke-Adams, The
Triad of Retinal Haemorrhage, Subdural Haemorrhage and Encephalopathy in an
Infant Unassociated with Evidence of Physical Injury Is Not the Result of Shaking, But
Is Most Likely to Have Been Caused by a Natural Disease, 3 J. of Primary Health
Care 159–63 (2011).
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77. Kent P. Hymel et al., Abusive Head Trauma, supra note 7, at 356 (noting that an
appropriate diagnostic evaluation includes “[a] comprehensive medical history,
meticulous physical examination(s), and the appropriate use of laboratory tests,
imaging studies, and medical specialty consultations—coupled with active
consideration of alternate diagnoses”).
78. Id. at 356 (emphasizing that a thorough consideration of the alternatives “will
frequently (although not inevitably) lead to a reasonable degree of medical
certainty regarding the nature, extent, severity, mechanisms, and timing of
pediatric neurotrauma. In many cases of suspected pediatric abusive head trauma,
it is the discovery of associated noncranial traumatic injuries suspicious for abuse
(e.g., patterned bruises, bruises in a pre-ambulatory infant, rib fractures) that
provides the most compelling evidence that an infant’s cranial injuries were also
inflicted.”).
79. For one summary of the tests that should be performed, see id.
80. See, e.g., Waney Squier & Lucy B. Rorke-Adams, The Triad of Retinal Haemorrhage,
Subdural Haemorrhage and Encephalopathy in an Infant Unassociated with
Evidence of Physical Injury Is Not the Result of Shaking, But Is Most Likely to Have
Been Caused by a Natural Disease, supra note 76 (illustrating competing approaches
to the differential diagnosis).
81. See, e.g., Michael V. Krasnokutsky, Cerebral Venous Thrombosis: A Potential Mimic
of Primary Traumatic Brain Injury in Infants, 197 Am. J. Roentgenology 503
(2011).
82. Squier & Rorke-Adams, supra note 76, at 162. Doctor Rorke-Adams adds,
“[a]lthough intracerebral haemorrhages are common, no standard texts of
radiology or pathology document association of thromboses with SDH, although
it is conceivable that small posterior pole retinal hemorrhages may result from
increased intracranial pressure.” Id.
83. Waney Squier, The Shaken Baby Syndrome: Pathology and Mechanisms, supra note
33, at 533.
84. See Christopher S. Greeley, Conditions Confused with Head Trauma, in Child
Abuse and Neglect: Diagnosis, Treatment, and Evidence 441, 446
(Carole Jenny ed., 2011) (“[M]uch controversy exists about whether BEAF [benign
extra-axial fluid] predisposes an infant to hemorrhage with routine care or after a
trivial injury.”).
85. P. Daniel McNeely et al., Subdural Hematomas in Infants with Benign Enlargement
of the Subarachnoid Spaces Are Not Pathognomic for Child Abuse, 27 Am.
J. Neuroradiology 1725 (2006).
86. Sverre Morten Zahl et al., Benign External Hydrocephalus: A Review, with Emphasis
on Management, 34 Neurosurgery Rev. 417 (2011) (suggesting that research is
needed “to verify that this truly is a benign condition”). Because the cause of BEH
is not apparent in most cases, the condition is generally classified as idiopathic. Id.
at 419.
12_9780199913633_endnote.indd 234 1/29/2014 8:24:37 PM

87. See P. Daniel McNeely et al., Subdural Hematomas in Infants with Benign
Enlargement of the Subarachnoid Spaces Are Not Pathognomic for Child Abuse,
supra note 85, at 1728 (stating “[b]ased on our observations, we believe that
subdural hematomas may occur either spontaneously or as result of a minor or
unrecognized trauma in patients with BESS”). In patients with the condition,
“when other stigmata of NAT [non-accidental head trauma] are absent, a subdural
hematoma in isolation cannot be used as presumptive evidence of NAT”; see also
Partha S. Ghosh & Debabrata Ghosh, Subdural Hematoma in Infants Without
Accidental or Nonaccidental Injury: Benign External Hydrocephalus, a Risk Factor,
50 Clinical Pediatrics 897, 902 (2011); P. Daniel McNeely et al., Subdural
Hematomas in Infants with Benign Enlargement of the Subarachnoid Spaces Are Not
Pathognomic for Child Abuse, supra note 85 at 1728. For an earlier articulation of
this view, see Joseph H. Piatt Jr., A Pitfall in the Diagnosis of Child Abuse: External
Hydrocephalus, Subdural Hematoma, and Retinal Hemorrhages, 7 Neurosurgery
Focus 1 (1999).
88. Rubin Miller & Marvin Miller, Overrepresentation of Males in Traumatic Brain
Injury of Infancy and in Infants with Macrocephaly: Further Evidence That Questions
the Existence of Shaken Baby Syndrome, 31 Am. J. Forensic Med. & Pathology
165, 170 (2010).
89. See, e.g., Patrick D. Barnes et al., Infant Acute Life-Threatening Event—Dysphagic
Choking Versus Nonaccidental Injury, 17 Seminars in Pediatric Neurology
7–11 (2010); Saskia S. Guddat et al., Fatal Spontaneous Subdural Bleeding Due
to Neonatal Giant Cell Hepatitis: A Rare Differential Diagnosis of Shaken Baby
Syndrome, 7 Forensic Science, Medicine, and Pathology 294–97 (2011);
see generally Martha E. Laposata et al., Children With Signs of Abuse: When Is It Not
Child Abuse?, 123 Am. J. Clin. Pathol. S119–S124 (2005); Greely, supra note 84.
90. “In SBS/AHT, there are tens or hundreds of known ‘rule outs,’ some of which can
be identified only when the child is alive and others that can be identified only after
death.” Findley et al., Shaken Baby Syndrome, Abusive Head Trauma, and Actual
Innocence: Getting It Right, supra note 25, at 278. “For example, seizure activity and
some coagulation abnormalities can only be identified when the child is alive, while
slides of the brain and meninges, which may reveal congenital abnormalities or
pre-existing injury, can only be obtained after death.” Id. at 278 n.276.
91. Compare to Henry F. Krous, Sudden Unexpected Death in Infancy and the Dilemma
of Defining the Sudden Infant Death Syndrome, 6 Current Pediatric Reviews
5 (2010) (explaining that SIDS definitions are imprecise due to the lack of
definitive postmortem markers, and noting a shift from diagnosing SIDS toward
recognizing other causes of death, rendering SIDS diagnosis one of exclusion); see
also Waney Squier & Julie Mack, The Neuropathy of Infant Subdural Haemorrhage,
supra note 34, at 10 (suggesting that resuscitation after prolonged periods of oxygen
deprivation may contribute to the neurological damage of babies presenting with
the triad).
12_9780199913633_endnote.indd 235 1/29/2014 8:24:37 PM

92. Transcript of Evidentiary Hearing, State v. Edmunds, 746 N.W.2d 590 (Wis. Cir.
Ct. 2008) (No. 96 DF 555); Brief of Defendant-Appellant, State v. Edmunds, 746
N.W.2d 590 (Wis. Ct. App. 2008) (No. 2007AP000933).
93. Brief of Defendant, supra note 92, at 3, 13–23 (citing Transcript of Evidentiary
Hearing).
94. Id. at 11, 14–23 (citing Transcript of Evidentiary Hearing).
95. Id. at 14–23.
96. State v. Edmunds, 2008 WI App 33, ¶ 15, 746 N.W.2d 590, ¶ 15.
97. Brief of Plaintiff-Respondent at 35–37, State v. Edmunds, 746 N.W. 2d 590 (Wis.
Ct. App. 2008) (No. 2007AP000933).
98. See State v. Edmunds, No. 96 CF 555, slip op. at 7 (Wis. Cir. Ct. Mar. 29,
2007) (“Expert witnesses on both sides now indicate that research about Shaken
Baby Syndrome has evolved.”).
99. Edmunds, No. 96 CF 555, slip op. at 6 (Wis. Cir. Ct. Mar. 29, 2007).
100. Edmunds, 2008 WI App 33, ¶ 23, 746 N.W.2d 590, ¶ 23.
101. Id.
102. Ed Trevelen, Citing Wishes of Baby’s Parents, Prosecutors Won’t Retry Edmunds,
Wis. State J. ( July 11, 2008).
103. Meg Heaton, Audrey Glasbrenner Edmunds: Starting Over, Hudson-Star
Observer (Oct. 10, 2012).
104. Id.
105. Id.
C h a p t er 3
1. Andrew P. Sirotnak, Medical Disorders That Mimic Abusive Head Trauma, in

Abusive Head Trauma in Infants and Children: A Medical, Legal,
and Forensic Reference 191 (Lori Frasier et al. eds., 2006).
2. Evidence-Based Medicine Working Group, Evidence-Based Medicine: A New Approach
to the Teaching of Medicine, 268 JAMA 2420, 2421 (1992). Decades ago, the Evidence-
Based Working Group noted, “medical practice is changing, and the change, which
involves using the medical literature more effectively in guiding medical practice, is
profound enough that it can appropriately be called a paradigm shift.” Id. at 2420.
3. Outside the medical context, Thomas Kuhn described the difficulty of scientific
paradigm shift in The Structure of Scientific Revolutions (1996).
4. See Kent P. Hymel et al., Abusive Head Trauma, in Child Abuse and
Neglect: Diagnosis, Treatment, and Evidence 349, 357 (Carole Jenny
ed., 2011) (acknowledging “we need research studies that clarify how—and why—
medical professionals reach specific forensic conclusions”).
5. See e.g., Cindy W. Christian, The Influence of Career Experience in Defining Head
Injuries: Challenges for Research, 31 Child Abuse & Neglect 325 (2007).
6. Researchers have documented “the differences between pediatricians’ and
pathologists’ interpretations of identical cases. Pathologists consistently were
12_9780199913633_endnote.indd 236 1/29/2014 8:24:37 PM

more likely to classify cases more towards the unintentional end of the spectrum.”
Laskey et al., Physicians’ Initial Forensic Impressions of Hypothetical Cases of Pediatric
Taumatic Brain Injury, 31 Child Abuse & Neglect 329, 337 (2007) (using
sixteen hypothetical cases and asking over 500 doctors to determine the likelihood
of abuse).
Regarding the more skeptical orientation of pathologists, it is interesting to note
that in 2006, the National Association of Medical Examiners (NAME) officially
withdrew its “Position Paper on Fatal Abusive Head Injuries in Infants and Young
Children.” Keith A. Findley et al., Shaken Baby Syndrome, Abusive Head Trauma,
and Actual Innocence: Getting It Right, 12 Hous. J. Health L. & Policy 209,
240–41. The NAME conference that took place around the same time featured
presentations entitled “Use of the Triad of Scant Subdural Hemorrhage, Brain
Swelling, and Retinal Hemorrhages to Diagnose Non-Accidental Injury Is Not
Scientifically Valid,” and “Where’s the Shaking? Dragons, Elves, the Shaking Baby
Syndrome and Other Mythical Entities.” Id. at 241.
7. Clinical experience, of course, plays an important role in standard medical diagnosis.
Indeed, “[c]linical experience and the development of clinical instincts (particularly
with respect to diagnosis) are a crucial and necessary part of becoming a competent
physician.” Evidence-Based Working Group, supra note 2, at 2421. But see Cynthia
D. Mulrow & Kathleen N. Lohr, Proof and Policy from Medical Research Evidence,
26 J. Health Pol. & L. 249, 253 (2001) (“evidence-based medicine stresses a
structured critical examination of medical research literature; relatively speaking, it
deemphasizes average practice as an adequate standard”) (cited in John B. Wong
et al., Reference Guide on Medical Testimony: Reference Manual on
Scientific Evidence, Federal Judicial Center and National Research
Council 723 (3d ed. 2011)). As I will discuss, courts in the civil realm have been
reluctant to accept case reports as derived from valid scientific methodology. See,
e.g., Rider v. Sandoz Parms. Corp., 295 F.3d 1194, 1199 (11th Cir. 2002) (“Although
a court may rely on anecdotal evidence such as case reports . . . courts must consider
that case reports are merely accounts of medical events. They reflect only reported
data, not scientific methodology.”).
8. A. N. Guthkelch, Problems of Infant Retino-Dural Hemorrhage with Minimal
External Injury, 12 Hous. J. Health L. & Pol’y 201, 202 (2012). Doctor Guthkelch
continues, “Since subdural and retinal hemorrhages (with or without cerebral edema)
may also be observed in accidental or natural settings, I suggest that the elements of the
classic triad of retinal hemorrhage, subdural hemorrhage and cerebral edema would be
better defined in terms of their medical features. Perhaps ‘retino-subdural hemorrhage
of infancy’ would be an acceptable name for the primary findings. Other medical
findings, e.g., cerebral edema, can be added to the title as appropriate. This would
allow us to investigate causation without appearing to assume that we already know
the answer.” Id. For one adoption of this alternative diagnostic formulation, see
Waney Squier, Retino-Dural Hemorrhage of Infancy, in Wiley Encyclopedia of
Forensic Science (A. Jamieson and A. A. Moenssens eds., 2013).
12_9780199913633_endnote.indd 237 1/29/2014 8:24:38 PM

9. See, e.g., Jo Ciavaglia, Bensalem Mom of Three Held for Trial on Charges She Injured
3-Month Old in Her Care, PhillyBurbs.com (Nov. 9, 2012) (reporting on a child
abuse pediatrician who testified that “in her experience, the combination of new
bleeding in the brain and seizure-like symptoms most typically occur immediately
after an injury, not days or weeks later,” and stating that “this child was abused” with
medical certainty) (emphasis added)).
10. “In the absence of systematic observation one must be cautious in the
interpretation of information derived from clinical experience and intuition, for
it may at times be misleading.” Evidence-Based Medicine Working Group, supra
note 2, at 2421.
11. C. Henry Kempe et al., The Battered-Child Syndrome, 181 JAMA 17 (1962). See also
Carole Jenny, Medicine Discovers Child Abuse, 300 JAMA Classics 2796 (2008)
(“[W]hy is this article considered one of the best pediatric research articles in the
last 150 years? Because with this article, Kempe et al. established that physicians
have a special responsibility to children—a responsibility to help keep them safe,
sometimes even from their own parents.”).
12. See Jenny, supra note 11, at 2786 (“It is difficult for many physicians today to
appreciate the culture of the United States in 1962. Physicians did not diagnose
abuse, even when treating children with serious unexplained injuries. Child abuse
was not a medical problem, it was a social problem that was ignored.”).
13. John M. Leventhal, The Challenges of Recognizing Child Abuse: Seeing Is Believing,
281 JAMA 657, 658 (1999).
14. Id.
15. The Mondale Act of 1979, which increased funding for child protective agencies,
was a factor that “begat investigations and accusations of child abuse on a grand
scale.” Dorothy Rabinowitz, No Crueler Tyrannies: Accusation,
False Witness, and Other Terrors of Our Times, 25 (2003).
16. A 2008 study found that 89 percent of U.S. children’s hospitals support
multidisciplinary child protection teams. Jenny, supra note 11, at 2796. Most
states have passed legislation to mandate or permit the implementation of these
teams. The federal government, in various ways, has also encouraged reliance on
community coordination in this realm.
17. Jerome R. Kolbo & Edith Strong, Multidisciplinary Team Approaches to the
Investigation and Resolution of Child Abuse and Neglect: A National Survey, 1
Child Maltreatment 61 (1997) (teams surveyed were comprised of 84 percent
child protective workers, 80 percent law enforcement officers, and 67 percent legal
personnel).
18. Id. at 70.
19. Jenny, supra note 11, at 2797.
20. Suzanne P. Starling, Andrew P. Sirotnak, & Carole Jenny, Child Abuse and Forensic
Pediatric Medicine Fellowship Curriculum Statement, 5 Child Maltreatment
58 (2000).
12_9780199913633_endnote.indd 238 1/29/2014 8:24:38 PM

21. See Deepak Prabhakar, Child Abuse and Neglect: Diagnosis, Treatment, and
Evidence, 306 JAMA 554 (2011) (citing an “increasing body of literature on child
abuse”).
22. About the Society, The Ray Helfer Society, http://www.helfersociety.org/
about-the-society.
23. About the Center, The National Center on Shaken Baby Syndrome,
http://dontshake.org/sbs.php?topNavID=2&subNavID=10.
24. Governing Board, The National Center on Shaken Baby Syndrome, http://
dontshake.org/sbs.php?topNavID=2&subNavID=14.
25. 2010–2011 Annual Report, The National Center on Shaken Baby
Syndrome, http://www.dontshake.org/dontshake/annual-reports/2010annualre
port. The Annual Report also notes that the new quarters leave “plenty of room for
the NCSBS to grow and expand in the coming years.” Id.
26. All About SBS/AHT, Nat’l Center on Shaken Baby Syndrome, http://
dontshake.org/sbs.php?topNavID=3&subNavID=317.
27. Robert Reece, Science Behind SBS/AHT, Nat’l Center on Shaken Baby
Syndrome, http://dontshake.org/sbs.php?topNavID=3&subNavID=25&navI
D=805.
28. See generally Mohil v. Glick, 842 F. Supp. 2d 1072 (N.D. Ill. 2012).
29. Id. at 1074.
30. Id.
31. Id. at 1075.
32. Id. at 1075–77.
33. Id.
34. Id. The court went on to find that, even though there was state action, the doctors
were immune from suit because removal of the plaintiffs’ children based on an
incorrect SBS diagnosis would not have violated a constitutional right. The lawsuit
was therefore dismissed. Id. at 1078–80.
35. See generally Joanne N. Wood et al., Disparities in the Evaluation and Diagnosis of
Abuse Among Infants with Traumatic Brain Injury, 126 Pediatrics 408 (2010);
see also Antoinette L. Laskey et al., Influence of Race and Socioeconomic Status on the
Diagnosis of Child Abuse: A Randomized Study, 160 J. Pediatrics 1003 (2012).
36. Robert Parrish, Prosecuting a Case, in Abusive Head Trauma: A Medical,
Legal, and Forensic Reference 393, 395–96 (Lori Frasier et al. eds., 2006).
37. Id. at 395. “A fundamental understanding of the medical knowledge concerning
AHT committed against children is absolutely essential to a prosecutor’s success in
refuting commonly offered defenses, clarifying and dispelling myths introduced by
opposing expert witnesses, and providing juries with sufficient information to reach
a just decision.” Id. at 396.
38. See id. at 396 (“It is rare for a particular prosecuting attorney to handle multiple cases
involving AHT [abusive head trauma] in child victims unless the prosecutor works
in a specialized team assigned to handle physical abuse and child homicide.”).
12_9780199913633_endnote.indd 239 1/29/2014 8:24:38 PM

39. Devon Lee et al., Tips for Investigating Child Fatalities, 13 Update 1 (2000); Victor
I. Vieth, Tips for Medical Professionals Called as Witnesses, 13 Update 7 (2000);
Erin O’Keefe, Shaken Baby Syndrome: Overcoming Untrue Defenses, 10 Update 11
(1997).
40. Parrish, supra note 36, at 396.
41. Conferences, Nat’l Center on Shaken Baby Syndrome, http://www
.dontshake.org/conferences.php?conID=4&topNavID=5&&subNavID=39.
42. See generally Brian Holmgren, Prosecuting the Shaken Infant Case, in The Shaken
Baby Syndrome: A Multidisciplinary Approach 275, 307 (Stephen
Lazoritz & Vincent J. Palusci eds., 2001); see also Parrish, supra note 36.
43. Holmgren, supra note 42, at 307.
44. Id. at 305; see also id. at 285 (stating that “the onset of symptoms is virtually
contemporaneous with the abusive act”).
45. Parrish, supra note 36, at 398.
46. Id. at 405.
47. Id. at 395.
Reference 49, 50 (Lori Frasier et al. eds., 2006).
49. Holmgren, supra note 42, at 276 (“[T]he initial history provided by the caretaker is
false in the vast majority of abuse cases and frequently evolves or changes over time
as the caretaker is confronted with medical findings.”).
50. See, e.g., Carole Jenny et al., Analysis of Missed Cases of Abusive Head Trauma,
282 JAMA 621 (1999); Robert Reece, Medical Evidence in the Context of Child
Abuse Litigation, New Eng. L. Rev. 607, 610 (2002) (“[T]he history does
not match the physical condition in front of you. . . . Does the history fit what
you see? If it does not, then you must question how such an injury could have
occurred.”).
51. See Boos, supra note 48, at 50 (“[W]hose story has evolved or changed to fit new
information revealed by medical reports, medical personnel, or investigators?”);
Parrish, supra note 36, at 416.
52. One model prosecutorial summation makes this point as follows: “[I]t just couldn’t
happen the way the defendant says—not unless the laws of physics and gravity
are different in the defendant’s house. These doctors tell us that the defendant is
a liar. . . . A defendant who lies to protect himself points the finger of guilt upon
himself.” Holmgren, supra note 42, at 325.
53. Reece, supra note 50, at 610. Put differently, “[t]he false histories help identify the
likely individual who caused the child’s injuries by providing compelling evidence
of the abuser’s consciousness of guilt.” Holmgren, supra note 42, at 277.
54. Holmgren, supra note 42, at 277.
55. Ralph Hertwig et al., The Reiteration Effect in Hindsight Bias, 104 Psych. Rev. 194
(1994).
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56. Applying the literature on heuristics to explore “tunnel vision” in criminal cases,
Keith Findley explains that the longer prosecutors “live with a conclusion of
guilt . . . the more entrenched their conclusion becomes.” Keith A. Findley et al., The
Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 Wis. L. Rev. 291,
319 (2006).
57. Richard Ruelas, New Doubts in “Shaken Baby” Fatalities, AZCentral.com (Sept.
15, 2012).
58. Id.
59. Id.
60. Id.
61. Richard Ruelas, Innocent Dad Won’t Face Retrial in Death of Baby, AZCentral
.com (Oct. 31, 2012).
62. Jacqueline Ingles, Stephanie Spurgeon Sentenced to 15 Years in Daycare Death, ABC
Action News (Aug. 20, 2012).
63. Curtis Krueger, Medical Examiner Says Palm Harbor Infant’s Death Was Not
“Shaken Baby Syndrome,” Tampa Bay Times (Feb. 9, 2012).
64. Id.
65. Curtis Krueger, Jury Getting Case of Palm Harbor Day Care Owner Accused of
Killing Baby, Tampa Bay Times (Feb. 14, 2012).
66. Id.
67. Jacqueline Ingles, Stephanie Spurgeon Sentenced to 15 Years in Daycare Death, ABC
Action News (Aug. 20, 2012).
68. Gwen Florio, Montana Innocence Project Appeals Missoula Man’s Conviction for
Killing Baby Son, Missoulian (Sept. 9, 2012).
69. Id.
70. Id.
71. Helen Jung, Judge Convicts Carolyn Bellamy of Gresham of Criminally Negligent
Homicide in Death of Granddaughter, Oregon Live ( July 29, 2011).
72. Id.
73. Transcript Excerpt of Dr. Danny L., Oregon v. Bellamy ( July 21, 2011).
74. Id. at 97.
75. Id.
76. Lauren Gold, Bellamy Sentenced to Four More Months, Portland Tribune (Aug.
4, 2011).
77. Melissa Fletcher Stoeltje, Does “Shaken-Baby” Syndrome Exist?, San Antonio
Express-News ( July 31, 2011).
78. Id.
79. Santiago v. Texas, 2009 WL 4138952 (Tex. App. Ct. 2009).
80. Jane Flasch, Daycare Provider Asks Judge for Mercy, 13 WHAM ( June 20, 2012).
81. Seth Voorhees, Jury Finds Tina Sardisco Guilty on Both Counts, Your News Now
(Apr. 9, 2012).
82. Id.
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83. Closing Arguments in the Sardisco Trial, Your News Now (Apr. 9, 2012).
84. Id.
85. Jane Flasch, Daycare Provider Asks Judge for Mercy, 13 WHAM ( June 20, 2012).
86. Id.
87. Id.
88. Id.
C h a p t er 4
1. Access to experts for indigent defendants is a daunting problem. See generally Paul
C. Giannelli, Ake v. Oklahoma: The Right to Expert Assistance in a Post-Daubert,
Post-DNA World, 89 Cornell L. Rev. 1305 (2004). Even for defendants who are
not indigent, the ability to retain expert witnesses is typically quite limited.
2. In a helpful account of “no-crime” cases, Samuel Gross has noted the difficulties
inherent in exonerating a suspect convicted of a crime that never took place. Samuel
R. Gross, Convicting the Innocent, 4 Ann. Rev. L. & Soc. Sci. 173, 182–86 (2008).
My focus here is on the trial itself, when factfinders are asked to determine whether
guilt has been proven beyond a reasonable doubt.
3. For an overview, see Dan A. Simon, A Third View of the Black Box: Cognitive
Coherence in Legal Decision Making, 71 U. Chi. L. Rev. 511 (2004).
4. Forensic medicine is generally understood to be medicine applied to legal questions,
just as forensic science is science applied to the law, although these definitions are
admittedly simplified. See Pierre Margot, Commentary on the Need for a Research
Culture in the Forensic Sciences, 58 UCLA L. Rev. 795, 796–99 (2011) (elaborating
on the question of terminology). A primary example of forensic medicine is forensic
pathology; particularly in the criminal context, autopsy is often used to investigate
the cause of death. But other areas of medicine concern themselves with the law in
ways that are perhaps less obvious, but no less significant.
5. As Simon Cole explains, forensic science is
hardly a unitary concept. Rather, it encompasses a wide variety of disciplines and
techniques. . . . Although generalization is difficult, it is nonetheless possible to
speak in broad terms about some commonalities that persist across the nexus of
practice called “forensic science.” Perhaps chief among these stems from the word
“forensic” itself: the notion that forensic science is science that “speaks” in court.
Ultimately, all forensic practice, no matter how wide-ranging, has as its telos some
sort of “speaking” about the results of its analysis in some sort of legal tribunal.
Simon A. Cole, Speaking of Evidence: An Empirical Study of the Reporting of Forensic
Conclusions in U.S. Criminal Trials 1–2 (CELS 2009 4th Annual Conference of
Empirical Legal Studies Paper, 2009).
6. See Tom R. Tyler, Viewing CSI and the Threshold of Guilt: Managing Truth and
Justice in Reality and Fiction, 115 Yale L.J. 1050, 1068 (2006) (noting a “general lack
of connection between actual and perceived probative value of scientific evidence”).
12_9780199913633_endnote.indd 242 1/29/2014 8:24:38 PM

7. The “temptation of forensic science” is widely recognized. J. Herbie DiFonzo &

Ruth C. Stern, Devil in a White Coat: The Temptation of Forensic Evidence in the
Age of CSI, 41 New Eng. L. Rev. 503, 515 (2006).
8. Simon A. Cole & Rachel Dioso-Villa, Investigating the “CSI” Effect: Media
and Litigation Crisis in Criminal Law, 61 Stan. L. Rev. 1335, 1341 (arguing
that “there is, as yet, no convincing evidence of such an effect,” whether in the
direction of convictions or acquittals). Cole and Dioso-Villa posit that the cultural
resonance of the CSI effect is best understood as reflecting “the rising authority
and prestige of science in modern society” and anxieties about it eclipsing law as a
“truth-producing” mechanism. Id. at 1373.
9. Tyler, supra note 6, at 1028.
10. Id. at 1071.
11. Id.
12. Id. at 1072.
13. Id. at 1084.
14. Id. at 1072 (discussing the public’s generally high confidence in science and how
“the linkage of evidence to science [] enhances verdict legitimacy”).
15. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 319 (2009).
16. Comm. on Identifying the Needs of the Forensic Sciences Cmty.,
Nat’l Acad. of Sciences, Strengthening Forensic Science in the
United States: A Path Forward 53 (2009).
17. Id. at 47 (citing David L. Faigman et al., Modern Scientific Evidence: The
Law and Science of Expert Testimony § 31 (2002)).
18. Id. at 150–55.
19. Id. at 165–67.
20. Id. at 156–62.
21. Id. at 162–64.
22. Id. at 174–77.
23. Id. at 150–55.
24. Id. at 145–50.
25. Id. at 136–45.
26. Id. at 177–79.
27. Id. at 170–73.
28. Id. at 7.
29. Paul C. Giannelli, The 2009 NAS Forensic Science Report: A Literature Review, 48
Crim. L. Bull. 378, 389 (2012) (“For decades, legal scholarship has been stressing
the lack of empirical research in some forensic disciplines.”). For a useful collection
of sources, see id. at 389 n.92.
30. See id. at 381 & n.36 (discussing Academy membership as one of the highest honors
that a scientist can receive).
31. See Jennifer L. Mnookin et al., The Need for a Research Culture in the Forensic
Sciences, 58 UCLA L. Rev. 725, 732 (2011) (“Congress commissioned the report
12_9780199913633_endnote.indd 243 1/29/2014 8:24:38 PM

late in 2005 at the behest of the forensic science community itself. The Academy
appointed a panel of judges, scholars, and forensic and legal practitioners to write
the report. This committee heard more than sixteen days of testimony—more
than eighty witnesses in eight meetings over a two-year period—from a variety
of leading forensic scientists and academic researchers.”).
32. Id. at 734.
33. The committee issued a call for research to “validate the basic premises” of a number
of settled forensic science disciplines. Strengthening Forensic Science,
supra note 16, at 188–89.
34. Moore v. Newton-Embry, No. CIV-09-985-C, 2012 WL 1158658, at *1 (W.D.
Okla. Apr. 6, 2012).
35. Transcript of Trial Proceedings, State v. Moore, No. CF-2004-351 at 42 (Okla.
Dist. Ct. Oct. 20, 2005).
36. Id. at 42, 146.
37. Id. at 46, 48–49, 51, 53, 170.
38. Id. at 48–57.
39. Id. at 10–11, 17.
40. Transcription of Interrogation of Beverly Moore at 19, 21, 22, 24–25 ( Jan. 13,
2004) (on file with author).
41. Id. at 17–18, 22.
42. Id. at 19–21.
43. Id. at 23.
44. Id. at 28.
45. Id. at 28, 31–33; Transcript of Trial Proceedings, supra note 35, at 226–27.
Okla. Sept. 7, 2011).
47. Transcript of Trial Proceedings, supra note 35, at 156.
48. See Moore v. Newton-Embry, 2011 WL 5143080, at *11.
50. Id. at 163.
51. Id. at 155.
52. Id. at 154–55.
53. Id. at 166, 170–71, 177.
54. Id. at 177–79, 196, 215.
55. Id. at 235, 240, 243, 251–54.
56. Cindy W. Christian et al., Am. Acad. of Pediatrics, Abusive Head Trauma in Infants
and Children, 123 Pediatrics 1409 (2009).
58. Christian et al., Am. Acad. of Pediatrics, supra note 56.
59. Transcript of Trial Proceedings, supra note 35, at 265–66, 269–70.
60. Id. at 68.
61. Id. at 68–70.
12_9780199913633_endnote.indd 244 1/29/2014 8:24:38 PM

62. Id. at 85–89.

63. Id. at 17, 20–21.
64. Id. at 57–58.
65. Id. at 194.
66. Id. at 124–27, 135–38, 148, 154, 156, 161.
67. Id. at 165.
68. Id. at 166.
69. See Brief in Support of Application (Second) for Post-Conviction Relief at 7–8,
Moore v. State, No CF-2004-351 (Okla. Dist. Ct., Oklahoma Cnty. June 5, 2012).
70. Transcript of Trial Proceedings, supra note 35, at 196–97.
71. Id. at 35.
72. Id. at 75, 89–90.
73. Transcript of Proceedings at 1324, State v. Calderaro, No. 1251-06 (N.Y. Sup. Ct.,
Queens Cnty., Apr. 1, 2009).
74. Id. at 1054.
75. Id. at 1055.
76. Id. at 1056. Cf. Kimberley Molina, Neck Injuries and Shaken Baby Syndrome, 30
Am. J. Forensic Med. & Pathology 89 (2009) (citing data indicating the
nonexistence of neck injuries in seventy-nine potential “shaking” cases).
77. Transcript of Proceedings, supra note 73, at 1056.
78. Id. at 1059–64.
79. Id. at 1064–69.
80. Id. at 887–88.
81. Id. at 888.
82. Id. at 669, 697, 852, 854, 865.
83. Id. at 694, 697.
84. Id. at 903, 908.
85. Id. at 904–05.
86. Id. at 905.
87. Id. at 908.
88. Id. at 717–18.
89. Id. at 728.
90. Id. at 1077.
91. Attorney’s Affirmation in Support of Motion to Vacate at 32, State v. Calderaro,
No. 1251–06 (N.Y. Sup. Ct., Queens Cnty. Feb. 15, 2012).
92. Id.
93. Transcript of Proceedings, supra note 73, at 1097–98, 1102–04, 1248.
94. Attorney’s Affirmation in Support of Motion to Vacate, supra note 91, at 43.
96. Id. at 910–11.
97. Id. at 1165–67, 1170, 1196.
98. Id. at 1170, 1173.
12_9780199913633_endnote.indd 245 1/29/2014 8:24:39 PM

99. Christian et al., Am. Acad. of Pediatrics, Abusive Head Trauma in Infants and
Children, supra note 56. Doctor A. had previously served several terms on the
American Academy of Pediatrics Committee on Child Abuse and Neglect, which,
as he described, “put[s] out the position papers or at least initiate[s] the position
papers on behalf of the American Academy of Pediatrics where we make opinions
about child abuse and what we thought the literature said, and then eventually it
results in a document saying, ‘This is what the American Academy of Pediatrics
believes.’ ” Transcript of Proceedings, supra note 73, at 1153.
100. Id. at 1472.
101. Id. at 1205.
102. Id. at 652, 1206–09, 1465, 1467.
103. Id. at 1481–82, 1490, 1506–07, 1512.
104. Id. at 1333.
105. Id. at 1468.
Chapter 5
1. See Brief of Appellee at 1, State v. Ware, 653 S.E.2d 21 (Ga. 2007) (No. S07A1423);
and Brief of Appellant at 5–18, State v. Ware, 653 S.E.2d 21 (No. S07A1423).
2. See Order Granting Motion for New Trial at 3, Ware, No. 04-CR-4839 (Super. Ct.
DeKalb Cnty. Dec. 6, 2006).
3. Id. at 3.
4. See Joseph Shapiro, Child Death Cases Repeatedly Mishandled, NPR ( June 28, 2011).
5. Brief of Appellee, supra note 1, at 10–11, 20, 22–23; Transcript of Proceedings
at 154–55, 172 Ware, No. 04-CR-4839 (Super. Ct. DeKaulb Cnty. Nov. 29,
2006) (abstract on file with author).
6. Brief of Appellee, supra note 1, at 5.
7. Id. at 8.
8. Id.
9. Id. at 4.
10. See Order Granting Motion for New Trial, supra note 2, at 2–3.
11. Brief of Appellee, supra note 1, at 32.
12. Id. at 9–10.
14. Brief of Appellee, supra note 1, at 21–22.
15. Id. at 22–23.
16. As John Ioannidis, one of the world’s leading experts on medical error, explains,
“Even when the evidence shows that a particular research idea is wrong, if you have
thousands of scientists who have invested their careers in it, they’ll continue to
publish papers on it. . . . It’s like an epidemic, in the sense that they’re infected with
the wrong ideas, and they’re spreading it to other researchers through journals.”
David H. Freedman, Lies, Damned Lies, and Medical Science, The Atlantic
(November 2010).
12_9780199913633_endnote.indd 246 1/29/2014 8:24:39 PM

17. For thoughts on the difficulty of scientific paradigm shift, see Thomas Kuhn,
The Structure of Scientific Revolutions (1996).
18. See Jay Katz, The Silent World of Doctor and Patient 166 (1984)
(“Medical knowledge is engulfed and infiltrated by uncertainty.”).
19. See David L. Sacket et al., Evidence Based Medicine: What It Is and What It Isn’t, 312
Brit. Med. J. 71 (1996).
20. Lars Noah, Medicine’s Epistemology: Mapping the Haphazard Diffusion of
Knowledge in the Biomedical Community, 44 Ariz. L. Rev. 373, 379 (2002).
21. Id. at 383 (contending that the practice of medicine over time “can result in a
stubborn and unreflective adherence to well-entrenched habits. The conceit that
doctors know best, or at least have a better handle on treating patients in the real
world than do ivory tower research scientists, is surprisingly resilient: ‘the universal
skepticism of practicing physicians regarding the utility of the scientific literature is
startling.’ ”).
22. Id. at 377 (noting that “many physicians retain confidence in anecdotalism”).
23. Id.
24. James Reason, Human Error 38 (1990).
25. This development was overdue. See Pat Croskerry, The Importance of Cognitive
Errors in Diagnosis and Strategies to Minimize Them, 78 Academic Medicine
775 (2003) (“The cognitive revolution in psychology that took place over the
last 30 years gave rise to an extensive, empirical literature on cognitive bias in
decision-making, but this advance has been ponderously slow to enter medicine.”).
26. Physicians “struggle when processing large amounts of information and fall back on
heuristics when making decisions.” Noah, Medicine’s Epistemology, supra note 20,
at 376.
27. Croskerry, Cognitive Errors, supra note 25, at 775. See also Pat Croskerry, Achieving
Quality in Clinical Decision Making: Cognitive Strategies and Detection of Bias,
Academic Emergency Medicine (Nov. 2002); Mark Graber et al., Reducing
Diagnostic Errors in Medicine: What’s the Goal?, 77 Acad. Med. 981 (2002).
28. In these types of situations, decisions are generally made “at the front line, when
resources are in short supply, when time constraints apply, and when shortcuts
are being sought.” Croskerry, Cognitive Errors, supra note 25, at 775. Emergency
medicine, in particular, has been described as a “natural laboratory of error.” Id.
at 776.
29. Id.
30. See Mark L. Graber et al., Diagnostic Error in Internal Medicine, 165 Arch.
Internal Med. 1493 (2005).
31. Id. at 1496–97.
32. Id. at 1497. Researchers determined that the most common clusters were
(1) incomplete/faulty history and physical examination; failure to consider the
correct candidate diagnosis; and premature closure; (2) incomplete/excessive
data gathering; bias toward a single explanation; and premature closure;
12_9780199913633_endnote.indd 247 1/29/2014 8:24:39 PM

(3) underestimating the usefulness of a finding; premature closure; and failure to

consult. Id.
33. Id.
34. Id.
35. Herbert A. Simon, Invariants of Human Behavior, 41 Ann. Rev. Psychol. 1
(1990). See also Anthony E. Voytovich et al., Premature Conclusions in Diagnostic
Reasoning, 60 J. Med. Educ. 302 (1985).
36. Croskerry, Cognitive Errors, supra note 25, at 777–78.
37. Id.
38. Id.
39. Id.
40. Id.
41. Id.
42. Id. at 777 (“[A] multiplicity of options on a differential diagnosis may lead to
significant conflict and uncertainty. The process may be simplified by reverting to
a smaller subset with which the physician is familiar but may result in inadequate
consideration of other possibilities.”).
43. Id.
44. Id. at 778.
45. Id.
46. Id. at 777. A related effect is “diagnostic momentum”: “Once diagnostic labels
are attached to patients they tend to become stickier and stickier. Through
intermediaries (patients, paramedics, nurses, physicians), what might have started
as a possibility gathers increasing momentum until it becomes definite, and all
other possibilities are excluded.” Id.
47. Jesse M. Pines, Profiles in Patient Safety: Confirmation Bias in Emergency Medicine,
13 Acad. Emergency Med. 90, 91 (2006).
48. See Vicki R. LeBlanc, Believing Is Seeing: The Influence of a Diagnostic Hypothesis
on the Interpretation of Clinical Features, 77 Acad. Med. (Oct. Supp.) S67, S69
(2002) (“If . . . novices and experts generate diagnostic hypotheses early in the
clinical encounter, the subsequent gathering and interpretation of clinical signs is
likely to be guided by these hypotheses.”).
49. Katherine R. Snyder et al., Interviewing Caregivers of Suspected Child Abuse Victims,
in Child Abuse and Neglect: Diagnosis, Treatment, and Evidence 51
(Carole Jenny ed., 2011).
50. Pines, Profiles in Patient Safety, supra note 47, at 92.
51. See Richard S. Tedlow, Denial: Why Business Leaders Fail to Look Facts
in the Face, and What to Do About It 33–34 (2010) (tracing origins of the
“groupthink” concept and describing its salient dynamics).
52. “Search satisfying,” a similar concept, “reflects the universal tendency to call off a
search once something is found.” Croskerry, Cognitive Errors, supra note 25, at 778.
See Herbert A. Simon, Invariants of Human Behavior, 41 Ann. Rev. Psychol. 1,
12_9780199913633_endnote.indd 248 1/29/2014 8:24:39 PM

9 (1990); see also Anthony E. Voytovich et al., Premature Conclusions in Diagnostic

Reasoning, 60 J. Med. Educ. 302 (1985).
53. Two notable exceptions are discussed in these pages. In the case of both Audrey
Edmunds (chapter 2) and Drayton Witt (this chapter), a key prosecution expert
revised his opinion years after the defendant was convicted.
54. Croskerry, Cognitive Errors, supra note 25, at 777–78.
55. Id. “Confirmation bias may be a manifestation of such an unwillingness to let go of
a failing diagnosis.” Id.
56. For a helpful discussion, see John B. Wong, Lawrence O. Gostin, & Oscar
A. Cabrera, Reference Guide on Medical Testimony, Federal Judicial Center
Reference Manual on Scientific Evidence 689–91 (3rd ed. 2011).
57. Not all courts recognize the distinction. See Stephen E. Fienberg, David L. Faigman,
& Philip Dawid, Fitting Science into Legal Contexts: Assessing the Effects of Causes or
the Causes of Effects? Sociological Methods and Research (forthcoming)
(“Some courts have confused differential etiology with ‘differential diagnosis.’
Whereas differential diagnosis concerns identification of the illness, differential
etiology concerns assessment of the cause of the illness. Diagnosis precedes etiology,
and in many medical settings it is the end of the inquiry.”).
58. Bowers v. Norfolk S. Corp., 537 F. Supp. 2d 1343 (M.D. Ga. 2007).
59. Id. at 1360.
60. Id. (quoting Dorland’s Illustrated Medical Dictionary 490 (29th ed.
2000)).
61. Id. (quoting Stedman’s Medical Dictionary 417 (26th ed. 1995)).
62. Id.
63. Id. (citing Mary Sue Henefin et al., Reference Guide on Medical Testimony, in
Federal Judicial Center, Reference Manual on Scientific Evidence
439, 481 (2d ed. 2000)).
64. Id. at 1363.
65. Bowers v. Norfolk S. Corp., 300 F. App’x 700, 703 (11th Cir. 2008).
66. See, e.g., Tamraz v. Lincoln Elec. Co., 620 F.3d 665 (6th Cir. 2010); McClain
v. Metabolife Int’l, Inc., 401 F.3d 1233 (11th Cir. 2005); see also Caraker v. Sandoz
Pharmaceuticals Corp., 172 F.Supp.2d 1046 (S.D.Ill. 2001); Wynacht v. Beckman
Instruments, Inc., 113 F. Supp. 2d 1205 (E.D. Tenn. 2000).
67. Bowers, 537 F. Supp. 2d at 1361.
68. Bowers identifies these factors as helpful in ensuring the methodological reliability
of differential diagnosis.
69. See David E. Bernstein, Getting to Causation in Toxic Tort Cases, 74 Brook.
L. Rev. 51, 64–65 (2008); Joseph Sanders, The Controversial Comment C: Factual
Causation in Toxic-Substance and Disease Cases, 44 Wake Forest L. Rev. 1029,
1044 & n.69 (2009).
70. Tamraz, 620 F.3d at 673.
71. Id.
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72. See Fienberg et al., Fitting Science into Legal Contexts, supra note 57 (“Differential
etiology is a strategy of formal logic devised by lawyers and not a medical or
scientific term. In short, differential etiology requires a testifying expert, first, to
rule in the putative cause and then, secondly, to rule out other possible causes of the
effect in issue. This method has little scientific grounding and, indeed, is as much
art as science.”).
73. Tamraz, 620 F.3d at 673.
74. Id.
75. See, e.g., Bowers v. Norfolk S. Corp., 537 F. Supp. 2d 1343, 1361 (M.D. Ga.
2007) (“[C]ourts . . . should consider opinions based on the differential etiology
method with more caution.”).
76. See A. N. Guthkelch, Problems of Infant Retino-Dural Hemorrhage with Minimal
External Injury, 12 Hous. J. Health L. & Pol’y 201, 202 (2012) (“Since subdural
and retinal hemorrhages (with or without cerebral edema) may also be observed
in accidental or natural settings, I suggest that the elements of the classic triad of
retinal hemorrhage, subdural hemorrhage and cerebral edema would be better
defined in terms of their clinical features. . . . Perhaps ‘retino-dural hemorrhage of
infancy’ would be an acceptable name for the primary findings. Other medical
findings, e.g., cerebral edema, can be added to the title as appropriate. This would
allow us to investigate causation without appearing to assume that we already
know the answer.”). See also Waney Squier, Retino-Dural Hemorrhage of Infancy,
in Wiley Encyclopedia of Forensic Science (Allan Jamieson and Andre
A. Moenssens eds., 2013).
77. See Fienberg et al., Fitting Science into Legal Contexts, supra note 57 (“[E]xperts’
case-specific conclusions appear to be based largely on an admixture of an unknown
combination of knowledge of the subject, experience over the years, commitment
to the client or cause, intuition, and blind faith.”).
78. For decades, legal commentators have questioned the evidential worth of expert
claims regarding causation. For just one early example, see Bert Black, A Unified
Theory of Scientific Evidence, 56 Fordham L. Rev. 595 (1988).
79. See Joseph Sanders & Julie Machal-Fulks, The Admissibility of Differential Diagnosis
Testimony to Prove Causation in Toxic Tort Cases: The Interplay of Adjective and
Substantive Law, 64 Law & Contemp. Probs. 107, 108 (2001) (“There is now
a considerable body of case law on point. Most would agree that the result of these
challenges is a body of evidence law that creates more barriers to the admissibility of this
evidence. However, there is no complete consensus on the requirements for admitting
such testimony. On the contrary, the case law is unsettled in some regards.”).
80. For a review of the empirical evidence on criminal/civil distinctions in the judicial
treatment of expert opinions generally, see 4 David L. Faigman et al., Modern
Scientific Evidence § 30:6 (2009–2010 ed.) (suggesting that “courts employ
Daubert more lackadaisically in criminal trials—especially in regard to prosecution
evidence” (internal quotation marks omitted)). See also Margaret A. Berger, Expert
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Testimony in Criminal Proceedings: Questions Daubert Does Not Answer, 33 Seton

Hall L. Rev. 1125 (2003) (“In civil cases, courts engage in rigorous gatekeeping
and often exclude plaintiff ’s experts because the theory underlying their testimony
has not been adequately validated. But I see no sign of a parallel approach in
criminal cases even [where] there are problems with the assumptions on which the
prosecution’s expert testimony rests.”).
81. The evidentiary rules governing expert testimony pertain equally to the criminal/
civil divide. See Fed. R. Evid. 702.
82. See Fienberg et al., Fitting Science into Legal Contexts, supra note 57 (noting that
courts “distinguish routinely between ‘general causation’ and ‘specific causation,’ a
distinction that has a long history in philosophy and science”).
83. Cavallo v. Star Enter., 892 F. Supp. 756, 771 (E.D. Va. 1995), aff ’d on this ground,
rev’d on other grounds, 100 F.3d 1150 (4th Cir. 1996).
84. Black v. Food Lion, Inc., 171 F.3d 308, 314 (5th Cir. 1999).
85. See, e.g., id., at 313–14; Hendrix v. Evenflo Co., Inc., 609 F.3d 1183, 1197 (11th Cir.
2010) (“Case studies and clinical experience, used alone and not merely to bolster
other evidence, are also insufficient to show general causation.”).
86. See, e.g., McClain v. Metabolife Int’l, Inc., 401 F.3d 1233, 1253 (11th Cir.
2005) (“Causal attribution based on case studies must be regarded with caution.”);
Rider v. Sandoz Pharm. Corp., 295 F.3d 1194 (11th Cir. 2002) (“[C]ase reports
alone ordinarily cannot prove causation.”).
87. See Bickel v. Pfizer, Inc., 431 F. Supp. 2d 918, 924 (N.D. Ind. 2006) (“Differential
diagnosis may be utilized by a clincian to determine what recognized disease or
symptom the patient has, but it is incapable of determining whether exposure to
a substance . . . caused disease in the legal sense. Simply put, an untested hypothesis
cannot be a scientifically reliable based for an opinion based on causation”).
88. See, e.g., Hollander v. Sandoz Pharm. Corp., 289 F.3d 1193, 1211–12 (10th Cir.
2002); Glastetter v. Novartis Pharms. Corp., 252 F.3d 986, 992 (8th Cir. 2001);
Black, 171 F. 3d at 313–14; Raynor v. Merrell Pharm. Inc., 104 F.3d 1371, 1376
(D.C. Cir. 1997); Kelley v. Am. Heyer-Schilte Corp., 957 F. Supp. 873, 882 (W.D.
Tex. 1997); Rutigliano v. Valley Bus. Forms, 929 F. Supp. 779, 783 (D.N.J. 1996);
Hall v. Baxter Healthcare Corp., 947 Supp. 1387, 1413 (D. Or. 1996); Cavallo, 892
F. Supp. at 771.
89. See, e.g., Faris A. Bandak, Shaken Baby Syndrome: A Biomechanics Analysis of
Injury Mechanisms, 151 Forensic Sci. Int’l 71 (2005); Ayub Khan Ommaya,
Biomechanics and Neuropathology of Adult and Paediatric Head Injury, 16 Brit.
J. Neurosurg. 220, 226 (2002).
90. Sanders & Machal-Fulks, The Admissibility of Differential Diagnosis Testimony,
supra note 79, at 123 (“The ‘rule in’ requirement sometimes is presented as a
question of dosage. Assuming that some dose of the substance at issue might cause
harm, the question becomes: Does the expert have adequate grounds for asserting
that the dosage to which the plaintiff was exposed could cause anyone harm?”).
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91. Mancuso v. Consol. Edison Co., 56 F. Supp. 2d 391, 403 (S.D.N.Y. 1999) (citations
omitted), rev’d on other grounds, 216 F.3d 1072 1072 (2d. Cir. 2000); accord
Bowers v. Norfolk S. Corp., 537 F. Supp. 2d 1343, 1362 (M.D. Ga.) (noting that
the expert “has no idea of the level of vibration known to cause harm, nor does he
know whether Plaintiff was subjected to such a level. These failures undermine the
reliability of [the expert’s] method.”); McClain v. Metabolife Int’l, Inc., 401 F.3d
1233 at 1241 n.6 (11th Cir. 2005) (“[T]he link between an expert’s opinions and
the dose-response relationship is a key element of reliability in toxic tort cases.”).
92. Judicial screening of expert testimony in civil cases is asymmetrical, in that it
more often results in the exclusion of expert testimony offered by plaintiffs. See
D. Michael Risinger, Navigating Expert Reliability: Are Criminal Standards of
Certainty Being Left of the Dock?, 64 Alb. L. Rev. 99 (2000).
93. See Sanders & Machal-Fulks, The Admissibility of Differential Diagnosis Testimony,
supra note 79, at 120 (“It is not sufficient . . . for an expert simply to state that
she has performed a differential diagnosis.”); see also Goebel v. Denver & Rio
Grande W. R.R. Co., 346 F.3d 987, 999 (10th Cir. 2003); Clausen v. M/V NEW
CARISSA, 339 F.3d 1049, 1057 (9th Cir. 2003); Westberry v. Gislaved Gummi
AB, 178 F.3d 257, 263 (4th Cir. 1999).
94. Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 319 (7th Cir. 1996).
95. Bowers, 537 F. Supp. 2d at 1361.
96. “[C]ourts that refuse to admit a differential diagnosis frequently cite the quality of
the expert analysis—the application of the technique at hand—as the reason for
exclusion.” Sanders & Machal-Fulks, The Admissibility of Differential Diagnosis
Testimony, supra note 79, at 120.
97. See In re Rezulin Prods. Liab. Litig., No. MDL 1348, 00 Civ. 2843(LAK),
2004 WL 2884327, at *4 (S.D.N.Y. Dec. 10, 2004) (“This case illustrates the
fundamental problem with differential diagnosis even assuming that [the expert]
relied upon it, which is not really clear.”).
98. Bowers, 537 F. Supp. 2d at 1360.
99. Hines v. Wyeth, No. 2:04–0690, 2011 WL 2792436, at *3 (S.D.W. Va. July 14,
2011) (quoting Kilpatric v. Breg, Inc., 613 F.3d 1329, 1342 (11th Cir. 2010)).
100. See id. at *4.
101. See id.
102. See Bowers, 537 F. Supp. 2d at 1363 (“The Court finds that [the doctor]
based his causation opinions on nothing more than a shady simulacrum of
professional judgment and reliable methodology.”); Sanders & Machal-Fulks, The
Admissibility of Differential Diagnosis Testimony, supra note 79, at 135 (“Judges
find less acceptable those expert judgments that relying primarily on the expert’s
intuition and professional judgment—judgments that reflect a greater degree of
experiential processing.”).
103. See Sanders & Machal-Fulks, The Admissibility of Differential Diagnosis Testimony,
supra note 79, at 125 (“Most cases that have discussed the issue have stated that
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temporal order alone is insufficient to support an expert’s opinion that substance

X caused injury Y.”).
104. McClain v. Metabolife Int’l, Inc., 401 F.3d 1233 (11th Cir. 2005).
105. Id. at 1243 (citation omitted); accord Ohio v. U.S. Dep’t of the Interior, 880 F.2d
432, 473 (D.C. Cir. 1989) (“The requirement of ‘adequate[] document[ation] in
scientific literature’ ensures that decision makers will not be mislead to the post hoc
ergo propter hoc fallacy.”).
106. See Black v. Food Lion, Inc., 171 F.3d 308, 314 (5th Cir. 1999). On the question of
general causation, inadequate epidemiology compounds this problem.
107. Id. at 310.
108. Id. at 313–14.
109. The move away from pathognomony in SBS diagnosis undermines analogy to rare
“signature diseases” in the toxic tort realm—mesothelioma, for example. Where
the issue of expert claims arises in this particular civil context, sufficient proof of
general causation may also bear on specific causation.
110. Sanders & Machal-Fulks, The Admissibility of Differential Diagnosis Testimony,
supra note 79, at 131.
111. Id. at 111–12.
112. Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 677 (6th Cir. 2010).
113. See In re Rezulin Prods. Liab. Lit., No. MDL 1348, 00 Civ. 2843(LAK), 2004
WL 2884327, at *4 (S.D.N.Y. Dec. 10, 2004) (“It is possible . . . that time and
medical research will prove [the expert] right. But Daubert requires much
more—it requires that his opinion be shown to rest on sufficient facts and data
and that it be the product of reliable principles and methods properly applied to
the facts of the case.”). See also Fienberg et al., Fitting Science into Legal Contexts,
supra note 57 (“When experts present evidence regarding the individual case,
they potentially run afoul of these two principles of evidence law. Specifically, if
science cannot validly speak to individual cases—that is, if it cannot identify the
cause of an indentified effect—then their testimony is not helpful. Moreover, the
inclination of expert witnesses to resolve the ultimate issue in the particular case,
most evident in medical causation and non-DNA forensic identification cases,
manifests the perception that scientific evidence needs to be more than merely a
brick in the wall of proof.”).
114. Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 319 (7th Cir. 1996).
115. Christine Ferretti, Baby Abuse Case Reopens, Detroit News (Dec. 9, 2009).
116. People v. Baumer, No. 267373, 2007 WL 1095236, at *1 (Mich. Ct. App. Apr.
12, 2007).
117. Id. at *1–*5.
118. Id. at *4.
119. Id. at *1.
120. Baumer v. Davis, No. 2:08–CV–15075, 2009 WL 2447482, at *1 (E.D. Mich.
Aug. 6, 2009).
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121. Id. at *3.

122. Id.
123. Ferretti, Baby Abuse Case Reopens, supra note 115.
124. People v. Baumer, No. 2004-2096-FH, slip op. at 3, 13 (Macomb Cnty. Cir. Ct.
Nov. 20, 2009).
125. Id. at 7–8.
126. Id. at 7–9.
127. Ferretti, Baby Abuse Case Reopens, supra note 115.
128. Jameson Cook, Baumer Acquitted of Child Abuse, The Macomb Daily (Oct.
16, 2010).
129. Id.
130. Id.
131. Id.
132. Affadavit of Michael K. at ¶ 6, People v. Baumer, No. 2:08-cv-15075-PDB-SDP
(McComb Cnty. Cir. Ct. Dec. 8, 2008).
133. Id. at ¶ 35.
134. Cook, Baumer Acquitted of Child Abuse, supra note 128.
135. Transcript of Proceedings at 5, 10 (Sentence), State v. Witt, No. CR 2000-017311
(Ariz. Super. Ct., Maricopa Cnty. April 22, 2002) (on file with author).
136. Id. at 10–13.
137. See Declaration of A.L. M., M.D. at ¶ 9, Witt, No. CR 2000-017311.
138. Id. at ¶ 10.
139. Id. at ¶ 4–5.
140. Id. at ¶ 6–8.
141. Id. at ¶ 10.
142. Declaration of A. Norman Guthkelch, M.D., at ¶ 2, State v. Witt, No. CR
2000-017311 (Ariz. Super. Ct., Maricopa County Feb. 17, 2012).
143. Id. at ¶ 4–7.
144. Id. at ¶ 10.
145. See id. at ¶ 11–13.
146. Id. at 15.
147. Defendant’s Memorandum in Support of Petition for Post-Conviction Relief at
40, State v. Witt, No CR 2000-017311 (Ariz. Super. Ct., Maricopa County Feb. 17,
2012) [PCR Memo].
148. Id. at 40–42.
149. Id. at 4–8.
150. Id. at 5–11.
151. Id. at 11–12.
152. Transcript of Proceedings (Trial Testimony—Feb. 13, 14, 19, 20, 21, 2002) at
17–19, State v. Witt, No. CR 2000-017311 (Ariz. Super. Ct., Maricopa County
April 22, 2002) (on file with author).
153. Id. at 19.
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154. Id. at 20–28.

155. Transcript of Proceedings (Trial Testimony—Feb. 13, 2002) at 86, 101, State
v. Witt, No. CR 2000-017311 (Ariz. Super. Ct., Maricopa County April 22,
156. See PCR Memo, supra note 147, at 41.
157. Transcript of Proceedings (Trial Testimony—Feb. 13, 2002), supra note 155,
at 86, 95; Transcript of Proceedings (Trial Testimony—Feb. 14, 2002) at
22–23, 30, Witt, No. CR 2000-017311 (on file with author); Transcript of
Proceedings (Trial—Feb. 21, 2002) at 7–8, Witt, No. CR 2000-017311 (on file
with author).
158. See PCR Memo, supra note 147, at 40–43.
159. Id. at 20–24.
160. Richard Ruelas, New Doubts in “Shaken Baby” Fatalities, AZCentral.com
(Sept. 15, 2012).
161. The prosecutors’ commitment to the old SBS model may have significance beyond
Witt’s case, since the Maricopa County Attorney’s office apparently handled SBS
cases at a rate of two per week in the late 1990s. Id.
162. Id.
163. State’s Motion to Dismiss at 1, State v. Witt, No. CR 2000-017311 (Ariz. Super.
Ct., Maricopa Cnty. Oct. 23, 2012).
164. Stephen Hunt, Day-Care Provider Guilty of Abuse, Salt Lake Tribune (Oct.
29, 2004).
165. Id.
166. Transcript of Trial Proceedings at 284, State v. Tiscareno, No. 031500228 (Utah
Dist. Ct., Summit Cnty. Oct. 28, 2004) (on file with author).
167. Id. at 279, 383–84.
168. Id. at 505–07, 515, 523.
169. Id. at 294–95.
170. Id. at 294–95, 702.
171. See Notice of Newly Discovered Evidence, Motion for Stay of Sentence and
Issuance of a Certificate of Probable Cause, or, Alternatively, Motion to Continue
Sentencing, State v. Tiscareno, No. 031500228 (Utah Dist. Ct., Summit Cnty. Jan.
10, 2005).
172. Id. at 3–5.
173. See id. at 5; Memorandum Decision and Order, State v. Tiscareno, No. 031500228,
(Utah Dist. Ct., Summit Cnty. Jan. 27,2005); State v. Tiscareno, No. 031500228
(Utah Dist. Ct., Summit Cnty. May 24, 2005).
174. Transcript of Proceedings at 170, 179–200, 225, State v. Tiscareno, No. 031500228
(Utah Dist. Ct., Summit Cnty. May 24, 2005) (on file with author).
175. Id. at 231–34, 238–39.
176. Id. at 238–51, 257, 259–60.
177. Id. at 259–60.
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178. Id. at 260–66.

179. Id.
180. Id. at 275.
181. See Memorandum Decision and Order, Tiscareno v. Frasier, No. 2:07-CV-336 (D.
Utah April 19, 2012).
182. See Christopher Smart, Woman Tries to Rebuild Life, Salt Lake Tribune ( July
28, 2005).
183. See Letter from Doctor Patrick B. to Jim Bradshaw, Defense Counsel for Abigail
Tiscareno (April 29, 2005) (on file with author).
184. Smart, Woman Tries to Rebuild Life, supra note 182.
185. Id.
C h a p t er 6
1. Mark S. Dias, The Case for Shaking, in Child Abuse and Neglect: Diagnosis,
Treatment, and Evidence 362, 370 (Carole Jenny ed., 2011).
2. See Jan E. Leestma, “Shaken Baby Syndrome”: Do Confessions by Alleged
Perpetrators Validate the Concept?, 11 J. Am. Physicians & Surgeons 14, 16
(2006).
Reference 49, 50 (Lori Frasier et al. eds., 2006).
4. Robert Reece, What Are We Trying to Measure: The Problems of Case Ascertainment,
34 Am. J. Preventative Med. 610 (2008).
5. Brian Holmgren, Prosecuting the Shaken Infant Case, in The Shaken Baby
Syndrome: A Multidisciplinary Approach 275, 277 (Stephen Lazoritz &
Vincent J. Palusci eds., 2001).
6. See id. at 277 (suspicious statements include “a false, discrepant, evolving or
absent history”); Boos, supra note 3, at 40 (“whose story has evolved or changed
to fit new information revealed by medical reports, medical personnel, or
investigators?”).
7. CPR—infant, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ency/
article/000011.htm (last updated Sept. 2, 2011).
8. See Brandon Garrett, Convicting the Innocent: Where Criminal
Prosecutions Go Wrong 18 (2011). In forty of the first 250 DNA
exonerations (16 percent) a suspect falsely confessed. Id. (pointing to DNA
exonerations as cause for greater acknowledgment that false confessions occur
with some frequency).
9. Amber Lester Kennedy, York Woman Pleads Guilty to Child Neglect in Infant Death,
WYDaily.com ( June 29, 2012).
10. See, e.g., State v. Rogers, 760 N.W.2d 35 (Neb. 2009).
12_9780199913633_endnote.indd 256 1/29/2014 8:24:41 PM

11. See, e.g., State v. Fisher, 805 N.W.2d 571 (S.D. 2011).
12. Aleman v. Vill. Of Hanover Park, 662 F.3d 897, 900 (7th Cir. 2011) (noting that,
even though the facts contained in the opinion had not yet been proven in court,
“there doesn’t seem to be much doubt that [Aleman’s] main factual allegations are
true.”).
13. In one analysis, researchers found that exonerees who falsely confessed were
four times more likely to plead guilty than those who had not confessed. Allison
D. Redlich, False Confessions, False Guilty Pleas: Similarities and Differences, in
Interrogations and Confessions: Current Research, Practice,
and Policy 49–66 (G. D. Lassiter & C Meissner eds., 2010). As Saul Kassin
has explained, “many innocents who confess ultimately surrender rather than
assert a defense.” Saul M. Kassin, Why Confessions Trump Innocence, 67 Am.
Psychologist 431, 439 (2012).
14. Kassin, supra note 13, at 433 (“Over the years, mock jury studies have shown that
confessions have more impact on verdicts than do other potent forms of evidence
and that people do not adequately discount confessions—even when they are
retracted and judged to be the result of coercion.”) (citations omitted).
15. See Saul M. Kassin et al., Police-Induced Confessions: Risk Factors and
Recommendations, 34 Law & Hum. Behav. 3, 14–15 (2010).
16. An alternative framework emphasizes a process-based model of police interrogation
to explain false confessions. See Richard A. Leo, Police Interrogation and
American Justice 119–64 (2008). This structural perspective is also useful for
understanding why innocent SBS suspects might nonetheless confess.
17. Id. at 16–17.
18. Fadia M. Narchet et al., Modeling the Influence of Investigator Bias on the Elicitation
of True and False Confessions, 35 Law & Hum. Behav. 452, 455 (2011).
19. Saul M. Kassin et al., Behavioral Confirmation in the Interrogation Room: On the
Dangers of Presuming Guilt, 27 Law & Hum. Behav. 187, 199 (2003).
20. Id. at 195.
21. Narchet et al., supra note 18.
22. See Saul M. Kassin & Karlyn McNall, Police Interrogations and Confessions:
Communicating Promises and Threats by Pragmatic Implication, 15 Law & Hum.
Behav. 233, 249 (1991).
23. Narchet et al., supra note 18, at 462.
24. Id. at 463.
25. See generally Krista D. Forrest et al., The Role of Preexisting Stress on False Confes-
sions: An Empirical Study, 3 J. Credibility Assessment & Witness Psychol.
23 (2002).
26. See Saul M. Kassin, On the Psychology of Confessions: Does Innocence Put Innocents
at Risk?, 60 Am. Psychologist 215, 222 (2005).
27. Kassin, Police-Induced Confessions, supra note 15, at 22.
28. Id. at 23.
12_9780199913633_endnote.indd 257 1/29/2014 8:24:41 PM

29. See Transcript of Interview by Detectives Rick Dhabalt and Steve Walsh with
Richard Britts, in Springfield, Ill., at 1–3 ( Jan. 4, 2010) (on file with author).
30. See id.; see also Patrick Yeagle, Springfield Father Cleared of Shaking Infant Daughter,
Illinois Times ( July 26, 2012); Supplemental Report of Det. Rick Dhabalt,
Springfield Police Dept. (submitted Oct. 14, 2010) (on file with author).
31. Britts Interview, supra note 29.
32. Dhabalt Report, supra note 30.
33. Id.
34. Id.
35. Chantel was presumably referring to Saniya and her older sister, Natieanna. As Britts
would later describe his relationship with Natieanna, “She’s a daddy’s girl. Half the
time she only wants me. And actually biologically she is not mine but I have been there
since my wife was two months pregnant. I signed her birth certificate and everything
and I call her mine. She is a little white baby [Britts is black] but she is mine, you know.”
Britts Interview, supra note 29.
36. Dhabalt Report, supra note 30.
37. Id.
38. See Todd Cooper, Drs. Split on Whether Baby’s Injuries Intentional, Omaha.com
(March 2, 2012).
39. Transcript of Interview by Det. Shlori of Keny Medrano ( July 11, 2010) (on file
with author).
40. Transcript of Interview by Sgt. Yanes of Keny Medrano ( July 19, 2010) (on file with
author).
41. Deposition of Amber Schlote at 33, State v. Medrano-Cambara, No. CR
10-9078812 (Neb. Dist. Ct., Douglas Cnty. Feb. 13, 2012) (on file with author).
42. See id. at 33.
43. Id. at 36.
44. Id.
45. Id. at 76–77.
46. Transcript of Interview by Unidentified Police Officers with Abigail Tiscareno
(Nov. 14, 2003) (on file with author).
47. See Christopher Smart, Woman Tries to Rebuild Life, Salt Lake City Tribune
( July 28, 2005).
C h a p t er 7
1. Transcript of Record at 1433, People v. Del Prete (2005) (No. 03 CF 199).

2. Northwestern University’s Medill Justice Project is assembling a nationwide
database on SBS cases, which should inform a fuller understanding of the
distribution of disparate case outcomes. See Cat Zakrzewski, Medill Justice Project
Makes Strides in Shaken Baby Syndrome Cases, Daily Northwestern (Feb.
19, 2013).
12_9780199913633_endnote.indd 258 1/29/2014 8:24:41 PM

3. Amanda Rolik, Doctors Testify Trauma Killed Baby Ella; Kline Denies Harming the
Child in Interview Video, The Daily Record (Sept. 9, 2012).
4. Id.
5. Amanda Rolik, Kline Found Not Guilty, The Daily Record (Sept. 21, 2012).
6. Id.
7. Id.
8. Chris Bieri, Marsden Found Not Guilty on All Three Murder Counts, Grand
Forks Herald (Apr. 25, 2012).
9. Id.
10. Id.
11. Id.
12. Beth Velliquette, Parents Testify in Trial of Day-Care Operator, The Herald-Sun
(Sept. 21, 2011); Beth Velliquette, Jury Deciding Alston’s Fate in Shaken Baby Case,
The Herald-Sun (Oct. 13, 2011).
13. Beth Velliquette, Parents Testify in Trial of Day-Care Operator, supra note 12;
Beth Velliquette, Defense Claims Shaken Baby Syndrome Theory Is Wrong, The
Herald-Sun (Oct. 8, 2011).
14. Beth Velliquette, Jury: Not Guilty in Shaken Baby Trial, The Herald-Sun
(Oct. 15, 2011). On the felony child abuse count (one of three charges), the jury
was unable to reach a unanimous verdict (10–2 for not guilty), and the state later
dismissed this last charge. Charge Dismissed Against Child-Care Worker, Chapel
Hill Herald ( Jan. 25, 2012).
15. Curtis Krueger, Foster Mom Not Guilty in Baby’s Death, St. Petersburg Times
(Aug. 28, 2010).
16. Curtis Krueger, Former St. Petersburg Foster Mother Not Guilty of Murdering Baby,
St. Petersburg Times (Aug. 28, 2010).
17. Id.
18. Id.
19. James D. Wolf, Jury Clears Home Day-Care Provider in Baby’s Death, Post-Tribune
( June 16, 2011).
20. Id.
21. Id.
22. Jury Returns Verdicts of Not Guilty on All Counts Alleging Defendant Violently
Shook Baby Causing Child’s Permanent Brain Damage and Blindness Resulting from
Shaken Baby Syndrome, The Georgia Defender (Nov. 2, 2007).
23. Id.
24. Id.
25. Art Barnum, Critical Injury to Toddler Was New, Court Told, Chicago Tribune
( Jan. 24, 2003).
26. Art Barnum, Day-Care Provider Acquitted, Chicago Tribune (Feb. 7, 2003).
27. John Futty, Sitter Acquitted in Baby’s Death, The Columbus Dispatch (Oct.
25, 2012).
12_9780199913633_endnote.indd 259 1/29/2014 8:24:41 PM

28. John Futty, Baby Sitter Denies Abusing Infant Who Died, The Columbus
Dispatch (Oct. 22, 2012).
29. John Futty, Sitter Acquitted in Baby’s Death, supra note 27.
30. Id.
31. Becky Purser, Jury Deliberations to Continue in Centerville Infant Death, The
Telegraph (Oct. 4, 2011).
32. Purser, Jury Deliberations to Continue in Centerville Infant Death, supra note
31; Becky Purser, Baby Not Shaken to Death, Doctor Testifies for Defense, The
Telegraph (Sept. 30, 2011).
33. Purser, Baby Not Shaken to Death, supra note 32; Becky Purser, Jury Deliberations to
Continue in Centerville Infant Death, supra note 31.
34. Becky Purser, The Judge Declares Mistrial in “Shaken Baby” Trial, The Telegraph
(Oct. 4, 2011).
35. E-mail from A. Norman Guthkelch to Deborah Tuerkheimer (Sept. 28, 2012) (on
file with author).
36. Affidavit of Complaining Witness at 1, State of Nebraska v. Medrano-Cambara
(2011).
37. Id. at 2.
38. Deposition of Amber Schlote at 36, State v. Medrano-Cambara, No. CR
10-9078812 (Neb. Dist. Ct., Douglas County Feb. 13, 2012).
39. Todd Cooper, Baby Sitter Not Guilty in Toddler’s Death, Omaha World-Herald
(Mar. 10, 2012).
40. Deposition of Dr. Blaine R., State of Nebraska v. Medrano-Cambara, No. CR
10-9078812 (Douglas Co. Dist. Court, Omaha, NE, Jan. 17, 2002) (on file with
author).
41. Id. at 19–24.
42. Id. at 28–30, 37.
43. Id. at 33–34, 39, 51.
44. Deposition of Dr. Thomas H., State of Nebraska v. Medrano-Cambara, No. CR
10-9078812 at 31–32 (Douglas Co. Dist. Court, Omaha, NE, Jan. 18, 2012) (on file
with author).
45. Id. at 48–50 (emphasis added).
46. Deposition of Dr. Thomas H., supra note 44.
47. Transcript of Closing Argument, State of Nebraska v. Medrano-Cambara at 12–13
(Mar. 8, 2012).
48. Id. at 48–49, 59, 74–75.
49. Id. at 82.
50. Id. at 86–87.
51. Id. at 82.
52. Id. at 87.
53. Cooper, Babysitter Not Guilty, supra note 39.
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54. Transcript of Interview by Detectives Rick Dhabalt and Steve Walsh with Richard
Britts, in Springfield, Ill., at 1–3 ( Jan. 4, 2010).
55. See id.; Patrick Yeagle, Springfield Father Cleared of Shaking Infant Daughter,
Illinois Times ( July 26, 2012).
56. Testimony of Dr. Channing P., in Transcript of Record at 3, 9, 27–28, 37; State of
Illinois v. Britts, No. 2010-CF-26 ( July 18, 2012); Dr. Channing P. Medical Report
at 2–3, University of Illinois College of Medicine, Pediatric Resource Center
(Feb. 23, 2010) (on file with author).
57. Testimony of Dr. Channing P., supra note 56, at 27–28.
58. Id. at 27–28.
59. Supplemental Report of Det. Rick Dhabalt, Spring Police Dept. at 6 (submitted
Oct. 14, 2010) (on file with author).
60. Id.
61. Transcript of Interview by Detectives Rick Dhabalt and Steve Walsh with Richard
Britts, in Springfield, Ill., at 6, 15 ( Jan. 6, 2010).
62. Testimony of Dr. Channing P., supra note 56, at 32, 35.
63. See City Man Acquitted of Injuring 3-Month-Old, The State Journal-Register
( July 24, 2012).
64. Britts Transcript, supra note 61, at 44–45.
65. P. Daniel McNeely et al., Subdural Hematomas in Infants with Benign Enlargement
of the Subarachnoid Spaces Are Not Pathognomonic for Child Abuse, 27 Am.
J. of Neuroradiol. 1725 (2005); see also Heather McKeag et al., Subdural
Hemorrhage in Pediatric Patients with Enlargement of the Subarachnoid Spaces, 11 J.
Neurosurgery 438 (2013).
66. Patrick Yeagle, Springfield Father Cleared of Shaking Infant Daughter, Illinois
Times ( July 26, 2012).
67. Id.
68. Id.
69. Tara Becker, Defense Likely to Rest Today in Patti Mock Trial, Saukvalley.com
(May 15, 2012).
70. Id.; Tara Becker, Baby Sitter Indicted in Infant’s Death, Saukvalley.com (Sept.
1, 2010).
71. Testimony of Dr. Jill G., in Transcript of Record at 5–7, State of Illinois v. Mock,
No. 10-CF-286 (May 10, 2012).
72. Id. at 19.
73. Id. at 30, 32.
74. Id. at 33–34.
75. Testimony of Dr. Raymond D., in Transcript of Record at 7, 16–17, State of Illinois
v. Mock, No. 10-CF-286 (May 10, 2012).
76. Id. at 23, 70.
77. Id. at 30–33, 66.
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78. Id. at 39, 55 (emphasis added).

79. Tara Becker, Mock Found Not Guilty, Saukvalley.com (May 16, 2012).
80. “There are reports in the literature that a sub, a chronic subdural hemorrhage may
form membranes or little loculations or clots that can bleed more easily, and that
certainly might be true and that certainly could be an explanation why minor
trauma could cause bleeding. However, the minor trauma and rebleeding that
occurs in those situations does not cause neurologic symptoms. The lethargy, the
apnea, the stopping of the breathing, the seizures.” Testimony of Dr. Raymond D.,
supra note 75, at 76.
81. Becker, Mock Found Not Guilty, supra note 79.
82. Id.; see also “Highlights from Patti J. Mock’s Testimony,” available at http://www
.youtube.com/watch?v=tphhhy5iDHA.
83. Tara Becker, Defense Likely to Rest Today in Patti Mock Trial, Saukvalley.com
(May 15, 2012).
84. Testimony of Dr. Raymond D., supra note 75, at 26–28, 56; Testimony of Dr. Jill
G., supra note 71, at 53.
85. Testimony of Dr. Jill G., supra note 71, at 28.
86. Tara Becker, Light at the End of Tunnel, Saukvalley.com ( June 30, 2012).
87. Id.
88. Chris Conrad, Charges Won’t Be Filed in Death of White City Child, Mail
Tribune (Sept. 21, 2011).
89. Id.
90. Id.
91. In addition to the cases referenced in this discussion, see, e.g., Merced District
Attorney: No Charges Against Father in Death of 7-Month-Old-Son, Merced
Sun-Star (Mar. 27, 2012); David Kinney, Amish Parents Won’t Face Trial in Baby’s
Death, Pittsburgh Post-Gazette (Mar. 10, 2000).
92. Chandra Johnson, Taos Jurors Dismiss “Shaken Baby” Case Amid Medical Skepticism,
Taos News (Sept. 10, 2012).
93. Id.
94. Id.
95. Jeff Lehr, Shaken-Baby Case Dropped, The Joplin Globe (Aug. 9, 2011).
96. Carolyn Lange, Kandiyohi Co. Attorney Dismisses the Charges Against Man in
Shaken Baby Incident, Morris Sun Trib. (Aug. 11, 2011).
97. Doug Peters, Case Summary (on file with author). A similar scenario occurred in
2010, when prosecutors dismissed triad-based charges against a man accused of
shaking his son, after defense attorneys presented expert evidence that the baby
was predisposed to bleeding due to chronic subdural collections and external
hydrocephalus. Id.
98. John Nickerson, Stamford Parents Released on Bond in Baby Assault Case,
Connecticut Post ( Jan. 16, 2010).
99. Id.
12_9780199913633_endnote.indd 262 1/29/2014 8:24:41 PM

100. See Jeff Morganteen, Couple Gets Probation Program in Shaken-Baby Case,
Stamford Advocate (Apr. 1, 2011).
101. Aisling Swift, Charge Dropped Against Day Care Owner Who Passed Polygraph in
Shaken-Baby Case, Naples News (Sept. 4, 2009).
102. Id.
103. Id.
104. Id.
105. Id.
106. Id.
107. Valari Hyatt, Spreading the Word: Family Speaks Out About Unfounded Abuse
Claims, Pekin Daily Times (Mar. 19, 2011).
108. Id.
109. Id.
110. Id.
111. Id.
112. Marc Fisher, A Case of Family Services Job Well Done, or Overdone?, Washington
Post (Feb. 24, 2008).
113. Complaint at 9, Caplan v. The District of Columbia (D.C. Super. Ct.) (on file
with author).
114. Id. at 10; Fisher, A Case of Family Services, supra note 112.
115. Complaint, supra note 113, at 10.
116. Id. at 11–13.
117. Id. at 16–17.
118. Marc Fisher, A Bump, A Panic, Two Babies Torn from Home, Washington Post
(Feb. 24, 2008).
119. Petula Dvorak, In D.C., Unwarranted Child Abuse Suspicions Lead to a Case with
No End, Wash. Post ( June 13, 2013).
120. Dr. Danny L., Physician Consultation, Cares Northwest Hospital (Nov. 4,
121. Aaron Spencer, Two Men & Two Babies, Just Out (Nov. 1, 2012).
122. Doctor Danny L., Physician Consultation, supra note 120.
123. Id.
124. Dr. Margaret W., Physician Consultation, Legacy Emanuel Medical Center (Nov.
1, 2011) (on file with author).
125. Doctor Danny L., Physician Consultation, supra note 120.
126. Id.
127. Declaration of Dr. Patrick B. at 2–3, In re A. Black-Hutton, No. 11-7-00877-2
(Wash. Super. Ct., Juvenile Division) (on file with author).
128. Declaration of Dr. Julie M. at 2, In re A. Black-Hutton, No. 11-7-00877-2 (Wash.
Super. Ct. Jan. 8, 2012) (on file with author).
129. Declaration of Dr. Ronald J. at 7, In re A. Black-Hutton, No. 11-7-00877-2 (Wash.
Super. Ct., Juvenile Division) (on file with author).
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130. See Letter from Carin Shienberg, Superior Ct. Comm’r, Superior Ct. of
Washington, Clark Cnty., to Miriam Rosenbaum, Attorney General of
Washington, and David McDonald, Attorney for Defendant (Feb. 6, 2012) (on
file with author).
131. Appellate Brief at 7, Yohan v. K.S., No. 11 JA 512 (Ill. App. Ct.).
132. Letter from Doctor David F., Chief, Section of Neurosurgery, to Ellen Domph,
Attorney at Law (Dec. 21, 2011) (on file with author).
133. Adjudication Ruling at 1–3, In re Yohan K. & Marika K., Nos. 11 JA 512, 11
JA 513 (Ill. Cir. Ct. Aug. 1, 2012); See In re 2013 IL App (1st) 123472, ¶¶ 104,
156–57.
134. E-mail from Teresa Gracias to Deborah Tuerkheimer (Aug. 28, 2012) (on file with
author).
135. In re Yohan K. (1st Dist. App. Court June 20, 2013). Teresa Gracias and her
husband were provided legal assistance by the Family Justice Center. More often,
family court litigants lack the resources to mount an effective medical defense.
136. Id. at *45.
137. Id.
138. Id. at *36
139. Id. at *2.
140. E-mail from Teresa Gracias to Deborah Tuerkheimer ( June 21, 2013) (on file with
author).
C h a p t er 8
1. Jo Ciavaglia, Bensalem Mom of Three Held for Trial on Charges She Injured
3-Month-Old in Her Care, Philly Burbs (Nov. 9, 2012).
2. Brad Segall, Bensalem Babysitter Gets Probation in Assault of Infant, CBS Philly
(Mar. 19, 2013).
3. Nationwide, approximately 95 percent of cases are resolved by guilty plea; this rate
varies across jurisdiction. See U.S. Sentencing Commission, Sourcebook of Federal
Sentencing Statistics (2012); Matthew R. Durose, Bureau of Justice Statistics, U.S.
Dep’t of Justice, State Court Sentencing of Convicted Felons (2007).
4. Lafler v. Cooper, 132 S. Ct. 1376, 1388 (2012).
5. As David Starkweather has explained,
There are two general classifications of plea bargaining, a sentence bargain and
a charge bargain. In a sentence bargain, a defendant pleads guilty to the charges
in exchange for a prosecutor’s recommendation of a lenient sentence or for a
specified sentence. A charge bargain may take three forms. A defendant may plead
guilty to a charge or charges in return for a prosecutor’s dismissal of other charges
filed, a defendant may plead guilty to a charge or charges in return for a prosecu-
tor’s promise not to file other charges, or a defendant may plead guilty to a lesser
included offense in return for either a prosecutor’s dismissal of the more serious
charge or a prosecutor’s promise not to file the more serious charge.
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David A. Starkweather, The Retributive Theory of “Just Deserts” and Victim

Participation in Plea Bargaining, 67 Ind. L.J. 853, 858 (1992).
6. “[I]t is almost universally accepted by the participants in the system that there
are not enough personnel, court time or funds to try every case, or for that matter
even any significant percentage of cases.” John H. Blume & Rebecca K. Helm, The
Unexonerated: Factually Innocent Defendants Who Plead Guilty, 7 (Cornell Legal
Studies Research Paper 2012).
7. “Today plea bargaining is accepted as an essential and permanent component of the
American criminal justice system.” Id. at 6.
8. “Just as the cases of exonerees show that innocent people can falsely confess, they
also show us that innocent people can plead guilty.” Brandon L. Garrett,
Convicting the Innocent: Where Criminal Prosecutions Go
Wrong 152 (2011). In Brandon Garrett’s study of DNA exonerations, 6 percent
of the exonerees pleaded guilty, although this figure likely understates the scope of
the problem of guilty pleas by innocents. There are a number of reasons for this.
Primarily, as Garrett observes, “when one pleads guilty, one typically waives the
right to file an appeal or a habeas petition.” Also, where a negotiated sentence is
short, the defendant’s incentive to challenge a plea is reduced considerably. Id. at
150–52.
9. For a critique of this plea bargaining structure, see Stephanos Bibas, Harmonizing
Substantive-Criminal-Law Values and Criminal Procedure: The Case of Alford
and Nolo Contendere Pleas, 88 Cornell L. Rev. 1361 (2003). For one example
of issues that can arise when defendants in SBS cases plead no contest, see State
v. VanHoutan, 2013 WL 3491224 (as part of Alford plea, the defendant, who
denied wrongdoing, presented evidence at an evidentiary hearing that the baby
had chronic subdural bleeding, and that a faulty intubation caused inadequate
oxygenation).
10. At least one defendant in an SBS was sentenced to death. The defendant, Cathy
Lynn Henderson, successfully petitioned for habeas relief in 2012 (chapter 2).
Other defendants charged with death penalty eligible crimes have resolved their
cases with pleas to lesser offenses.
11. Alex Friedrich, Woman Guilty in Baby’s Injury: Child-Care Provider Enters Plea,
Likely to Serve Probation, St. Paul Pioneer Press ( Jan. 24, 2007); Alex Friedrich,
Caregiver Accused of Assault, St. Paul Pioneer Press (Apr. 1, 2006).
12. Randall Beach, “Shaken Baby” Case Ends With Plea Deal, New Haven Register
(Sept. 14, 2009).
13. Heather Nolan, Prosecutors Lower Charges for Tyler County Woman Accused of
Shaking Baby to Death in 2009, Beaumont Enterprise ( July 12, 2011).
14. Outside the SBS context, scholars have strongly critiqued the ethical implications
of this type of disposition. See, e.g., Albert W. Alschuler, The Prosecutor’s Rule in
Plea Bargaining, 36 U. Chi. L. Rev. 50, 64 (1968) (“The practice of responding to
a weak case by offering extraordinary concessions . . . represents, at best, a dangerous
allocation of institutional responsibility.”); Ronald F. Wright & Marc L. Miller,
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Dead Wrong, 2008 Utah L. Rev. 89, 105 (2008) (“When prosecutors become
profligate with the use of murder charges combined with probation sentences, they
avoid the risk of losing at trial, and they avoid criticism for declaring that murder
charges are not provable at trial. Sometimes, however the prosecutorial duty to see
that justice be done entails a willingness to embrace risk.”).
15. Alexis Spears, Woodville Woman Gets 2 Years in Death of Baby Son, KTRE ( July
12, 2011).
16. Megan Martzen, a Fresno County, California, caregiver, was charged with shaking
to death a toddler in her care. Linda Mumma, Megan Martzen Accepts Plea Deal
in Toddler’s Death, ABC 30 (Mar. 28, 2013). Were she retried and convicted of
the murder charge, Martzen faced twenty-five years to life in prison. Instead,
she was allowed to plead no contest to felony manslaughter and sentenced to
probation. Id. See also infra note 85.
17. See Albert W. Altschuler, The Prosecutor’s Role in Plea Bargaining, supra note 14, at
60 (“The universal rule is that the sentence differential between guilty plea and trial
defendants increases in direct proportion to the likelihood of acquittal.”).
18. See Oren Gazal-Ayal, Partial Ban on Plea Bargains, 27 Cardozo L. Rev. 2295,
2300 (2006) (“Usually, prosecutors cannot obtain guilty pleas in weak cases unless
they offer substantial concessions. When a defendant knows he has a good chance
for acquittal at trial, he will only plead guilty in return for considerable leniency.
Therefore, the disparity between the expected sentence after a trial conviction and
the bargained-for sentence signals the strength of the case.”).
19. See Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 Harv.
L. Rev. 2463, 2464–65 (2004) (The “shadow of trial” theory of settlement
“predicts that parties strike plea bargains in the shadow of expected trial outcomes.
In other words, parties forecast the expected sentence after trial, discount it by the
probability of acquittal, and offer some proportional discount. . . . In short, the
classic shadow-of-trial model predicts that the likelihood of conviction at trial and
the likely post-trial sentence largely determine plea bargains.”).
20. See Oren Gazal-Ayal, Partial Ban on Plea Bargains, supra note 18, at 2297 (“Very
few issues in the American criminal justice system generate such fierce controversy
as plea bargaining—and very few allegations against the practice are as severe as the
assertion that it leads to the conviction of innocent defendants.”).
21. Lucian E. Dervan & Vanessa A. Edkins, The Innocent Defendant’s Dilemma: An
Innovative Empirical Study of Plea Bargaining’s Innocence Problem, 103 J. Crim.
L. & Criminology 1, 19 (2012) (“While almost all commentators agree . . . that
some innocent defendants will be induced to plead guilty, much debate exists
regarding the extent of this phenomenon.”).
22. See id. at 18–22 (discussing various understandings of the scope of the innocence
problem).
23. See Garrett, Convicting the Innocent, supra note 8, at 150–53. See also
Dervan & Edkins, The Innocent Defendant’s Dilemma, supra note 21, at 23–24
12_9780199913633_endnote.indd 266 1/29/2014 8:24:42 PM

(explaining the limitations of exoneration studies for answering the question of

how often innocents plead guilty).
24. See Samuel R. Gross, Convicting the Innocent, 4 Ann. Rev. L. & Soc. Sci. 173,
181 (2008) (“How frequently do innocent defendants in general plead guilty
and receive reduced but still substantial prison terms? Needless to say, we don’t
know.”).
25. See Russell D. Covey, Longitudinal Guilt: Repeat Offenders, Plea Bargaining, and
the Variable Standard of Proof, 63 Fla. L. Rev. 431, 450 (2011) (“[I]t is rational to
refuse to roll the dice, regardless of whether one believes the evidence establishes
guilt beyond a reasonable doubt, and regardless of whether one is factually
innocent.”).
26. Dervan & Edkins, The Innocent Defendant’s Dilemma, supra note 21, at 28–43.
27. See Gross, Convicting the Innocent, supra note 24, at 181 (“The main reason
[defendants] pled guilty is that in return they received a small fraction of the
punishment they would have received after conviction at trial.”).
28. Dervan & Edkins, The Innocent Defendant’s Dilemma, supra note 21, at 42.
29. Gazal-Ayal, Partial Ban on Plea Bargains, supra note 18, at 2299.
30. Alan Prendergast, Shades of Guilt, Denver Westword News (Nov. 25, 2004).
31. Jeffrey E. Singer & Corey Kilgannon, Man Rejects Plea and Release, Choosing Trial
in His Baby’s Death, NYTimes.com (Oct. 24, 2012).
32. Id.
33. Corey Kilgannon & Jeffrey E. Singer, Father Gets 5 to 15 Years in the Death of a Baby
Girl, NYTimes.com (Mar. 4, 2013).
34. Even relatively lengthy prison sentences can be attractive according to this
calculus. For instance—one defense attorney explained that his client was
innocent but decided to accept the plea deal because of his five-year-old son.
The defendant’s “primary concern was just the risk of time away” from the boy.
Facing life in prison if convicted of murder, he could be free in seven years when
his son turned twelve. The defendant was advised not to take the deal by his
lawyer, whose experts would testify at trial that the baby died from preexisting
injuries. Rob Low, Olathe Dad Gets 10 Years for Baby’s Death, Fox 4 News (May
14, 2012).
35. For example, in one case, the defense lawyer was emphatic that his client was
innocent and indicated that he would challenge the scientific basis of the diagnosis
at trial. But because “the state may have [had] enough evidence to get a homicide
conviction,” the defendant pleaded guilty. Noelle McGee, Suspect in Baby’s Death
Pleads Guilty to Manslaughter, News Gazette, Oct. 28, 2009. A similar calculus
was articulated by a public defender, who remarked that if the defendant “went to
trial and lost, [the sentence] was either 20 to 50 years, 20 years to life, or life without
parole. Agreeing to confess to shaking the child . . . would considerably reduce any
sentence.” Mark Anderson, Does Shaken Baby Syndrome Realty Exist?, Discover
(Dec. 2, 2008).
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36. Ashley Meeks, Woman Gets 3 Years Supervised Probation in Shaken Baby Case, Las
Cruces Sun-News (May 5, 2011).
37. Id.
38. Oceanside Woman to Serve One Year for Baby Shaking Death, LIHerald.com
(May 10, 2011).
39. Id.
40. Zachary R. Dowdy, DA: Oceanside Woman Caused Toddler’s Fatal Injuries,
Newsday (Apr. 14, 2010).
41. Id.
42. Id.
43. Ann Givens, Mom Pleads Guilty to Son’s Shaken Death, Newsday (May 10, 2011).
44. Dowdy, DA: Oceanside Woman Caused Toddler’s Fatal Injuries, supra note 40.
45. Givens, Mom Pleads Guilty to Son’s Shaken Death, supra note 43.
46. Id.
47. Sam Thrift, Young Mom’s Murder Charge Reduced to Felony Child Abuse, WYDaily
.com (Feb. 14, 2012).
48. Amanda Kerr, Baby-Shaking Case Reduced to Abuse, Virginia Gazette (May
23, 2012).
49. Amber Lester Kennedy, York Woman Pleads Guilty to Child Neglect in Infant Death,
WYDaily.com ( June 29, 2012).
50. Id.
51. Kerr, Baby-Shaking Case Reduced, supra note 48.
52. Id.
53. Kennedy, York Woman Pleads Guilty, supra note 49.
54. Id.
55. Id.
56. Amanda Kerr, York Mother Sentenced in Infant’s Death, Daily Press (Sept.
6, 2012).
57. Geoff Liesik, Roosevelt Mother Pleads No Contest in Death of 2-Month-Old
Daughter, Deseret News (Dec. 1, 2011).
58. Id.
59. Valerie Schremp Hahn, Shaken Baby’s Death Leads to 2nd Guilty Plea by Baby
Sitter, Stltoday.com (Mar. 15, 2011).
60. William C. Lhotka, Man Can’t Forgive Sitter Who Shook His Child, St. Louis
Post-Dispatch (Oct. 12, 1995).
61. Valerie Schremp Hahn, Woman Going to Prison, Again, After Shaken Baby Dies,
Stltoday.com (May 4, 2011).
62. Hahn, Shaken Baby’s Death, supra note 59.
63. Hahn, Woman Going to Prison, supra note 61.
64. State v. Wheeland, No. 06CA0034-M, 2007 WL 789431 (Ohio Ct. App. Mar.
19, 2007).
65. Phil Trexler, Court Reverses Medina Decision, Akron Beacon J. (Mar. 20, 2007).
12_9780199913633_endnote.indd 268 1/29/2014 8:24:43 PM

66. See Julie Wallace, Man Sentenced in Baby Shaking, Akron Beacon J. (Apr.
25, 2006).
67. Id.
68. See State v. Wheeland, No. 06CA0034-M, 2007 WL 789431, at *5 (Ohio Ct. App.
Mar. 19, 2007).
69. Wallace, Man Sentenced in Baby Shaking, supra note 66.
70. Wheeland, 2007 WL 789431.
71. Id.
72. Id.
73. Wallace, Man Sentenced in Baby Shaking, supra note 66.
74. Wheeland, 2007 WL 789431.
75. E-mail from Terry Gilbert, Esq. to Deborah Tuerkheimer ( July 29, 2013) (on file
with author).
76. Kibret Markos, Charge: Mom Killed Son, N.J. Rec. (May 4, 2007); Hackensack
Woman Accused of Killing Baby, N.Y. Times (May 4, 2007).
77. Jerry DeMarco, Bergen Mom Gets Three Years in Shaken Baby Death,
CliffviewPilot.com ( Jan. 12, 2012).
78. Press Release, Queens Cnty. (N.Y.) Dist. Attorney, Far Rockaway Mother Charged
with Assault on Seven-Month-Old Daughter (Sept. 8, 2010).
79. Colin Weatherby, Man Charged with Murdering Girlfriend’s Toddler Accused in
2nd Murder of Another Ex’s Baby, N.Y. Daily News (Apr. 6, 2012).
80. Id.
81. Oren Yaniv, Tyree Wright to Face Murder Charges in Death of Jacquil Degraffenreid,
N.Y. Daily News (Mar. 12, 2012).
82. Id. Wright subsequently pleaded guilty. Josh Saul, B’klyn Felon Cops to Beating
Girlfriend’s 2-Year-Old to Death, N.Y. Post ( July 10, 2013).
83. Ben Yakas, Teen Accused of Killing TWO Infants in Separate Incidents, Gothamist
(Apr. 6, 2012).
84. See Queens Woman Gets 10 Years in Jail for Shaking Her Baby Who Later Died,
N.Y. Daily News ( June 8, 2012); see also Press Release, Queens Cnty. (N.Y.)
Dist. Attorney, Far Rockaway Mother Sentenced to 10 Years in Prison in Death of
Seven-Month-Old Daughter ( June 8, 2012).
85. For a sampling of other cases presenting lopsided plea arrangements, see Day Care
Worker Sentenced in Shaken Baby Syndrome Case, Ktvb.com (Nov. 2, 2010) (facing
manslaughter charge, day care provider served less than six months in jail); Scott
Rapp, Auburn Babysitter Sentenced to Weekends in Jail in Shaken Baby Case,
Syracuse.com (Oct. 13, 2009) (facing seven years in prison defendant pleaded
guilty to assault charges in exchange for sentence of three months of weekends in
jail, plus probation and community service); Paul T. Rosynsky, Surprising Deal
Reached in Case Against Man Accused of Killing Son, Oakland Tribune (Feb. 2,
2011) (facing life sentence, defendant pleaded no contest in exchange for ten-month
sentence).
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C h a p t er 9
1. In re Winship, 397 U.S. 358, 362 (1970).

2. Id. (quoting Brinegar v. United States, 338 U.S. 160, 174 (1949)).
3. Id. at 369–72 (Harlan, J., concurring) (“[T]he choice of the standard for a particular
variety of adjudication does, I think, reflect a very fundamental assessment of the
comparative social costs of erroneous factual determinations. . . . In a criminal
case . . . we do not view the social disutility of convincting [sic] an innocent man as
equivalent to the disutility of acquitting someone who is guilty. . . . [T]he trier of fact
will sometimes, despite his best efforts, be wrong in his factual conclusions. . . . I view
the requirement of proof beyond a reasonable doubt in a criminal case as bottomed
on a fundamental value determination of our society that it is far worse to convict an
innocent man than to let a guilty man go free.”).
4. Id. at 363–64 (majority opinion).
5. Id. at 363.
6. Id. at 364.
7. See James Q. Whitman, The Origins of Reasonable Doubt: Theological
Roots of the Criminal Trial 4 (2008) (“[T]he ‘[proof ] beyond a reasonable
doubt’ standard was not originally designed to make it more difficult for jurors to
convict. It was designed to make conviction easier, by assuring jurors that their souls
were safe if they voted to condemn the accused.”). As James Whitman notes, “the
desire for factual proof and the desire for moral comfort . . . both tend to raise the
bar against conviction.” Id. at 24.
8. Winship, 397 U.S. at 1072–73.
9. See, e.g., Christopher Slobogin, Dangerousness and Expertise Redux, 56 Emory L.J.
275, 306 (2006) (quantifying standard as requiring 90–95 percent certainty). Some
commentators have argued that the standard is variable. See, e.g., Erik Lillquist,
Recasting Reasonable Doubt: Decision Theory and the Virtues of Variability, 36 U.C.
Davis L. Rev. 85 (2002); Ronald J. Allen & Larry Laudan, Deadly Dilemmas, 41
Tex. Tech. L. Rev. 65 (2008).
10. Barbara D. Underwood, The Thumb on the Scales of Justice: Burdens of Persuasion in
Criminal Cases, 86 Yale L.J. 1299, 1300–1301 (1977).
11. See John B. Wong, Lawrence O. Gostin & Oscar A. Cabrera, Reference
Guide on Medical Testimony, Federal Judicial Council, Reference
Manual on Scientific Evidence 691–92 (3d ed. 2011) (“The standards
‘reasonable medical certainty’ and ‘reasonable medical probability’ are also terms
of art in law that have no analog for the practicing physician. . . . [D]iagnostic
reasoning and medical evidence are aimed at recommending the best therapeutic
option for a patient. Although most courts have interpreted ‘reasonable medical
certainty’ to mean a preponderance of the evidence, physicians often work with
multiple hypotheses while diagnosing and treating a patient without any ‘standard
of proof ’ to satisfy.”) (citations omitted)); see also, Addington v. Texas, 441 U.S. 418
(1979).
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12. See Stephen E. Fienberg, David L. Faigman, & Philip Dawid, Fitting Science into
Legal Contexts: Assessing the Effects of Causes or the Causes of Effects? Sociological
Methods and Research (forthcoming) (describing “reasonable degree of
medical certainty” as a term with “uncertain empirical meaning” and “mainly a
mantra repeated by experts for purposes of legal decision-makers, who similarly
have little idea what it means”).
13. Santiago v. State, No. 04-08-00788-CR, 2009 WL 4138952 (Tex. App. Ct. Nov.
25, 2009).
14. Id. Santiago’s claim—that the medical evidence was insufficient to support a
finding of guilt beyond a reasonable doubt—is a common basis for appeal in SBS
cases. While defendants at times challenge the jury instructions and evidentiary
rulings, they primarily argue that the trial record does not support a guilty
verdict.
15. State v. Calise, No. 26027, 2012 WL 4897840, at *1 (Ohio Ct. App. Oct. 17, 2012).
16. Id.
17. Mitchell v. State, No. CACR 07-472, 2008 WL 316166 (Ark. Ct. App. Feb.
6, 2008).
18. Id.
19. Id.
20. Barritt v. State, 277 S.W.3d 211, 212 (Ark. 2008).
21. Barritt v. State, No. CACR06-1261, 2007 WL 2713593 (Ark. Ct. App. Sept.
19, 2007).
22. Appellant’s Brief, Abstract and Addendum, State v. Barritt, 2007 WL 2713593.
23. Tracy M. Neal, Doctors Give Testimonies in Shaken Baby Trial, NWANews.com
( June 15, 2006).
24. Barritt, 2007 WL 2713593.
25. Id.
26. People v. Del Prete, No. 3-05-868, slip op. (Ill. App. Ct. Apr. 28, 2007).
27. Id.
28. Smith v. Mitchell, 437 F.3d 884, 888 (9th Cir. 2006), vacated sub nom., Patrick
v. Smith, 550 U.S. 915 (2007).
29. Cavazos v. Smith, 132 S. Ct. 2, 5 (2011) (quoting People v. Smith, No. B118869
(Cal. Ct. App. Feb. 10, 2000)).
30. Smith v. Mitchell, 437 F.3d at 890.
31. Patrick v. Smith, 127 S. Ct. 2126 (2007); Patrick v. Smith, 130 S. Ct. 1134 (2010);
Cavazos v. Smith, 132 S. Ct. 2 (2011).
32. Cavazos v. Smith, 132 S. Ct. 2 (2011).
33. Carol J. Williams, Brown Commutes Sentence of Woman Convicted of Killing
Grandson, Los Angeles Times (Apr. 7, 2012).
34. Smith v. Mitchell, 437 F.3d at 887–90.
35. Jackson v. Virginia requires courts to determine whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could have
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found the essential elements of the crime beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 319. The Antiterrorism and Effective Death Penalty
Act (AEDPA) more severely restricts the scope of review of state court decisions,
as it mandates an additional layer of deference. A federal court will only grant
habeas relief where the state court’s adjudication of a Jackson claim is objectively
unreasonable. See Smith v. Mitchell, 453 F.3d 1203, 1203–06 (9th Cir. 2006) (Bea,
J., dissenting).
36. Smith v. Mitchell, 437 F.3d at 890.
37. Id.
38. Cavazos v. Smith, 132 S. Ct. 2, 4–7.
39. Id. at 9 (Ginsburg, J., dissenting).
40. Id. (citing Mark Donohoe, Evidence-Based Medicine and Shaken Baby Syndrome
Part I: Literature Review, 1966–1998, 24 Am. J. Forensic Med. & Pathology
239, 241 (2003)).
41. Id. (citing State v. Edmunds, 746 N.W.2d 590, 596 (Wis. Ct. App. 2008)).
42. Id. (citing Faris A. Bandak, Shaken Baby Syndrome: A Biomechanics Analysis of
Injury Mechanisms, 151 Forensic Sci. Int’l 71, 78 (2005)).
43. Id. (citing Waney Squier, Shaken Baby Syndrome: The Quest for Evidence, 50
Developmental Med. & Child Neurology 10, 13 (2008)).
44. Id. (citing Jan E. Leestma, Case Analysis of Brain-Injured Admittedly Shaken Infants,
54 Cases, 1969–2001, 26 Am. J. Forensic Med. & Pathology 199, 211 (2005)).
45. Williams, Brown Commutes Sentence, supra note 33.
46. Joseph Shapiro & A. C. Thompson, New Evidence in High-Profile Shaken Baby
Case, NPR (March 29, 2012).
47. Williams, Brown Commutes Sentence, supra note 33.
48. Grandmother Seeking Clemency in “Shaken Baby” Case Breaks Her Silence, CBS
Los Angeles (Dec. 31, 2011).
49. Shapiro & Thompson, New Evidence, supra note 46.
50. Id.
51. Cavazos v. Smith, 132 S. Ct. 2, 11 (2011) (Ginsburg, J., dissenting).
52. State v. Edmunds, 598 N.W.2d 290, 293 (Wis. Ct. App. 1999).
53. This decision on the merits can be reached only after a court determines that there
are no procedural barriers to review.
54. See Susan A. Bandes, Framing Wrongful Convictions, 2008 Utah L. Rev. 5, 10 (2008)
(“DNA is viewed as an on/off switch—an either/or test, kind of like a pregnancy test
with a handy stick that turns one color for positive and another for negative.”).
55. See Keith A. Findley, Defining Innocence, 74 Alb. L. Rev. 1157, 1161 (2011).
56. See Daniel S. Medwed, Up the River Without a Procedure: Innocent Prisoners and
Newly Discovered Non-DNA Evidence in State Courts, 47 Ariz. L. Rev. 655,
659 (2005) (describing how the state court system has responded with common
procedural barriers that include strict statutes of limitations, limited discovery
provisions, and onerous evidentiary requirements).
12_9780199913633_endnote.indd 272 1/29/2014 8:24:43 PM

57. Memorandum and Order at 6, People v. Caldavado, No. 1251-06 (N.Y. Sup. Ct.,
Queens Cnty., June 18, 2012).
58. Id. (citing N.Y. Crim. Proc. Law § 440.10(1)(g) (McKinney 2012)).
59. Attorney’s Affirmation in Support of Motion to Vacate Judgment at 31–38,
Caldavado, No. 1251-06.
60. Memorandum and Order, supra note 57.
61. Id.
62. See Findley, supra note 55, at 1160 (“The DNA exonerations, while clarifying
the extent and nature of the problem of wrongful convictions, have simulta-
neously muddled the picture by creating a category of cases in which there is
little, if any, doubt that the accused was wrongfully convicted and was in fact
innocent.”).
63. Memorandum and Order, supra note 57. The denial has been appealed. Appellant’s
Brief, People v. Caldavado, No. 2012-06480 (N.Y. App. Div. Jan. 29, 2013).
64. Petition for Writ of Habeas Corpus at 50, Del Prete v. Hulett, No. 10 cv 5070, 2012
WL 774992 (N.D. Ill. March 6, 2012).
65. Strickland v. Washington, 466 U.S. 668, 686 (1984).
66. Petition for Writ of Habeas Corpus, supra note 64.
67. Id.
68. Id.
69. Brief in Support of Application (Second) for Post-Conviction Relief at 1, Moore
v. State, No. CF-2004-351 (Okla. Dist. Ct. June 5, 2012).
Okla. Sept. 7, 2011).
71. Id. (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)).
72. Id. at *3.
73. Id. at *4, *10.
74. Id. at *4–5.
75. Id. at *5.
76. Id. at *7–9.
77. Id. at *11.
78. Id. at *12.
79. Id.
80. Morales v. Ault, 476 F.3d 545, 548 (8th Cir. 2007).
81. Id. at 547–48.
82. Id. at 548.
83. Id.
84. Id.
85. Id. at 551–55; Morales, 476 F.3d at 556 (Bright, J., dissenting).
86. Id. at 548 (majority opinion).
87. Id. at 549 (quoting Morales v. Ault, No. 4:03-cv-40347, 2005 WL 5166197, at *1
(S.D. Iowa Sept. 28, 2005)).
88. Id. at 549–51.
12_9780199913633_endnote.indd 273 1/29/2014 8:24:43 PM

89. See id. at 553.

90. Id. at 551.
91. Id.
92. Id. at 550 (citing Strickland, 466 U.S. at 694).
93. Id. at 551.
94. Brady v. Maryland, 373 U.S. 83 (1963).
95. Morales, 476 F.3d at 554.
96. Id. at 556 (Bright, J., dissenting).
97. Id. at 558. Even the majority recognized the “deficient representation” that
Morales received, and the prosecutors’ “key role in presenting skewed medical
evidence” to the treating physicians in an effort “to persuade [them] to change
their initial opinions.” Id. at 556 (majority opinion).
98. Id. at 556.
99. Id. at 557–58.
100. Id. at 558 n.13.
101. Morales, 476 F.3d at 557 (Bright, J., dissenting).
102. Morales v. Ault, 552 U.S. 873 (2007).
103. Ex parte Briggs, 187 S.W.3d 458, 460–61 (Tex. Crim. App. 2005).
104. Id. at 460.
105. Id. at 461.
106. Id.
107. Id. at 464 n.12.
108. Id. at 460–63.
109. Id. at 463.
110. Id. at 464–65.
111. Id. at 464 n.12.
112. Id. at 462.
113. Id. at 466.
114. Id. at 467.
115. Id.
116. Id. at 468–70.
117. Id. at 469.
118. Id. at 470.
119. Id.
120. Id.
121. Dale Lezon, Exonerated Mom Facing All New Struggles, Houston Chron.
(Sept. 19, 2006).
122. Id.
123. Joseph L. Hoffmann & Nancy J. King, Rethinking the Federal Role in State
Criminal Justice, 84 N.Y.U. L. Rev. 791, 809 (2009) (estimating that, of more
than 18,000 petitions filed annually, fewer than sixty-five are expected to be
granted).
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C h a p t er 10
1. See A. N. Guthkelch, Problems of Infant Retino-Dural Hemorrhage with Minimal

External Injury, 12 Hous. J. Health L. & Pol’y 201, 204 (2012) (“In reviewing
cases where the alleged assailant has continued to proclaim his/her innocence,
I have been struck by the high proportion of those in which there was a significant
history of previous illness or of abnormalities of structure and function of the
nervous system, suggesting that the problem was natural or congenital, rather than
abusive. Yet these matters were hardly, if at all, considered in the medical reports.”).
2. Lars Noah, Pigeonholing Illness: Medical Diagnosis as a Legal Construct, 50
Hastings L.J. 241, 307 (1999).
3. Id.
4. Keith A. Findley, Toward a New Paradigm of Criminal Justice: How the Innocence
Movement Merges Crime Control and Due Process, 41 Tex. Tech. L. Rev. 133, 141
(2008) (“The innocence literature is replete with references to the fact that every
wrongful conviction also represents a failure to convict the guilty—a failure of
crime control.”).
5. See, e.g., Mohil v. Glick, 842 F. Supp. 2d 1072 (N.D. Ill. 2012).
6. See Note, Admitting Doubt: A New Standard for Scientific Evidence, 123 Harv.
L. Rev. 2021, 2026 (2010) (observing that “[i]n terms of the truth generating
function of science, instrumentalists have challenged the scientific realist view”).
7. Mohil v. Glick, 842 F. Supp. 2d at 1077. The court went on to find that,
notwithstanding the fact of state action, the doctors were immune from suit
because removal of the plaintiffs’ children based on an incorrect SBS diagnosis
would not have violated a constitutional right. The lawsuit was therefore dismissed.
Id. at 1078.
8. 373 U.S. 83 (1963).
9. See, e.g., Lissa Griffin, Pretrial Procedures for Innocent People: Reforming Brady, 56
N.Y.L. Sch. L. Rev. 969, 970 (2011) (“It has become clear that this constitutional
doctrine is inadequate to protect the integrity of the criminal process and certainly
has failed to protect the innocent.”).
10. Id. at 975 (citing William J. Brennan, Jr., The Criminal Prosecution: Sporting Event
or Quest for Truth? A Progress Report, 68 Wash. U. L. Q. 1, 8 (1990)).
11. Id. at 976 (quoting Model Rule of Professional Conduct 3.8 cmt.). See
also Berger v. U.S., 295 U.S. 78, 88 (1935) (the interest of a prosecutor is not to
“win a case, but [to see] that justice shall be done”; as such, the prosecutor “is in a
peculiar and very definite sense the servant of the law, the two-fold aim of which is
that guilt shall not escape or innocence suffer”).
12. See United States v. Bagley, 473 U.S. 667, 697 (1985) (Marshall, J., dissenting) (“Our
system of criminal justice is animated by two seemingly incompatible notions: the
adversary model, and the state’s primary concern with justice, not convictions.
Brady, of course, reflects the latter goal of justice, and is in some ways at odds with
the competing model of a sporting event.”).
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13. Memorandum from David W. Ogden, Deputy Attorney General, for Department
Prosecutors, Guidance for Prosecutors Regarding Criminal Discovery ( Jan.
4, 2010).
14. Id.
15. In 1938, the adoption of the Federal Rules of Civil Procedure (Rules) changed
the function of depositions significantly. The drafters of the Rules identified a
discovery-oriented deposition process as the key to eliminating the “trial by ambush”
prevalent in federal courts at the time. Looking to contemporary state deposition
rules that allowed for at least some discovery-related use of the deposition, the
drafters crafted Federal Rules 26–37 and transformed depositions into “front-line
discovery tool[s].” Gregory A. Ruehlmann Jr., “A Deposition Is Not a Take Home
Examination”: Fixing Federal Rule 30(e) and Policing the Errata Sheet, 106 Nw.
U. L. Rev. 893, 897 (2012).
16. Hickman v. Taylor, 329 U.S. 495, 500 (1947).
17. E. Stewart Mortiz, The Lawyer Doth Protest Too Much, Methinks: Reconsidering the
Contemporaneous Objection Requirement in Depositions, 732 U. Cin. L. Rev. 1353,
1357 (2004); see also Dargi v. Terminix Int’l Co., 23 S.W.3d 342, 344 (Tenn. Ct.
App. 2000) (“We must note at the outset the critical role oral depositions play in
civil litigation.”).
18. David A. Binder et al., A Deposition Course: Tackling the Challenge of Teaching for
Professional Skills Transfer, 13 Clinical L. Rev. 871, 872 (2007).
19. A 2007 survey of civil litigators found that 92 percent of lawyers view depositions
as either “very important” or “extremely important.” Id. at 873.
20. The federal courts and most state courts allow the taking of expert depositions
even without a showing of special circumstances. Under the Federal Rules of Civil
Procedure, “[a] party may depose any person who has been identified as an expert
whose opinions may be presented at trial.” Fed. R. Civ. P. 26(b)(4)(A).
21. See Jim McElhaney, Know What You’re After: Experts Will Tell You a Lot in
Depositions if You Ask the Right Questions, A.B.A. J. ( July 2011).
22. See Stephen D. Easton & Kaitlin A. Bridges, Peeking Behind the Wizard’s
Curtain: Expert Discovery and Disclosure in Criminal Cases, 32 Am. J. Trial
Advoc. 1, 8–15 (2008).
23. See id. at 24 n.86 (citing Iowa R. Crim. P. 2.13(1), (3); Mo. Ann. Stat. §§ 492.080
(West 1996), 545.390 (West 2002); N.H. Rev. Stat. Ann. § 517:13 (2006); Vt.
R. Crim. P. 15(a); and Fla. R. Crim. P. 3.220(h)).
24. See Ala. R. Crim. P. 16.6; Del. Super. Ct. Crim. R. 15; Fla. R. Crim.
P. 3.190(i); Haw. R. Penal P. 15; Me. R. Crim. P. 15; Mass R. Crim. P. 35; N.Y.
Crim. Proc. Law § 660.20 (McKinney 2009); S.D. Codified Laws § 23A-12-1
(2004); Tenn. R. Crim. P. 15; W. Va. Crim. P. 15; Wyo. R. Crim. P. 15.
25. On the problem generally, see The Justice Project, Expanded Discovery
in Criminal Cases: A Policy Review 1 (2007) (“The fact that discovery laws
are so broad in civil cases and are often so restrictive in criminal cases—where the
12_9780199913633_endnote.indd 276 1/29/2014 8:24:43 PM

freedom and, sometimes, the life of the defendant are at stake—is as nonsensical as
it is unjust.”).
26. See George C. Thomas III, Two Windows Into Innocence, 7 Ohio St. J. Crim. L.
575 (2010) (proposing a more expansive solution).
27. George Thomas calls this “the elephant in the room,” asking “[w]ho pays for the
discovery depositions, both in terms of out-of-pocket expenses and lawyer time,
when the defendant is indigent?” Id. at 595.
28. See id. at 594–95. Reciprocal discovery provisions (which I do not recommend)
would presumably double these costs.
29. In general, one objection to pretrial depositions concerns the prospect of witness
intimidation. This is not an issue in the context of experts.
30. Two examples are the cases of Keny Medrano-Cambara (chapter 7) and Abigail
Tiscareno (chapter 5).
31. See, e.g., Middleton v. State, 980 So. 2d 351, 353 (Miss. Ct. App. 2008) (rejecting
defendant’s contention that “Shaken Baby Syndrome is not a condition or theory
that is generally accepted in the medical community”).
32. See, e.g., State v. Leibhart, 662 N.W.2d 618, 623 (Neb. 2003) (rejecting defendant’s
argument that “the theory of shaken baby syndrome as a cause of certain injuries
was not supported by reliable scientific authority, data, or research”).
33. Id. at 628 (“[F]or some time, courts in other states have found shaken baby
syndrome to be a generally accepted diagnosis in the medical community.”)
(citing State v. Lopez, 412 S.E.2d 390 (S.C. 1991); State v. McClary, 541 A.2d 96
(Conn. 1988); In re Lou R., 499 N.Y.S.2d 846 (N.Y. Fam. Ct. 1986)); see also State
v. Vandemark, No. 04-01-0225, 2004 Del. Super. LEXIS 376, at *8–9 (Del. Super.
Ct. 2004) (“[I]t seems that the science behind Shaken Baby Impact Syndrome has
been accepted in Delaware and just about every other jurisdiction.”).
34. See, e.g., People v. Martinez, 74 P.3d 316, 322 (Colo. 2003).
35. Charles McCormick et al., McCormick on Evidence § 335 (Kenneth
S. Brown et al. eds., 6th ed. 2006).
36. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 596 (1993).
37. Commonwealth v. Martin, 290 S.W.3d 59, 68 (Ky. Ct. App. June 13, 2008) (review
denied, Aug. 19, 2009) (quoting LP Matthews LLC v. Bath & Body Works, Inc.,
458 F. Supp. 2d 198, 210 (D. Del. 2006)).
38. Id. at *8 (alteration in original) (quoting United States v. Mitchell, 365 F.3d 215,
245 (3d Cir. 2004)).
39. Id. at *7.
40. Id. at *8 (quoting United States v. Mitchell, 365 F.3d 215, 245 (3d Cir. 2004)).
41. Id. at *7 (noting that testimony of prosecution experts, “even accepting . . . its flaws”
cannot be so described).
42. Order and Opinion Re: Daubert Hearing, Commonwealth v. Davis, No. 04-CR-
205, at *21 (Ky. Cir. Ct. Apr. 17, 2006).
43. Id. at *23.
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44. Commonwealth v. Martin, 290 S.W.3d 59 at 69.

45. Order, State v. Hyatt, No. 06M7-CR00016-02 (Mo. Cir. Ct. Nov. 6, 2007).
46. Id.
47. Id.
48. Id.
49. Id.
50. Motion to Exclude the State’s Expert Testimony at 3, State v. Witt, No.
CR2000-017311 (Ariz. Sup. Ct. Oct. 16, 2012).
51. See State v. Leibhart, 662 N.W.2d 618 at 628 (reexamination under Daubert
appropriate “where recent developments raise doubts about the validity of
previously relied-upon theories”) (citation omitted).
52. Shaken Baby Syndrome: A Genuine Battle of the Scientific (and Non-Scientific)
Experts, 46 Crim. L. Bull. 156 (2010).
53. Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996). From the medical malpractice
area, one good example is Broders. In that case, the plaintiff offered the testimony of
an emergency medicine doctor in a malpractice action against two neurosurgeons.
The doctor opined that the plaintiff ’s untreated head injury foreseeably led to her
death, and that the defendants had failed to satisfy the requisite standard of care
when they released her from the hospital without properly diagnosing her injury.
The doctor had practiced emergency medicine for eight years, was trained in “the
brain and its functions,” and had experience treating head injuries. Still, given that
the case involved questions of neurosurgical treatment, the court held that the
doctor was insufficiently qualified to testify; accordingly, his opinions regarding
the cause of the girl’s death were deemed speculative and testimony on this issue
properly excluded. Id. at 150–53.
54. Whiting v. Boston Edison Co., 891 F. Supp. 12, 24 (D. Mass.1995) (“Just as a
lawyer is not by general education and experience qualified to give an expert
opinion on every subject of the law, so too a scientist or medical doctor is not
presumed to have expert knowledge about every conceivable scientific principle
or disease.”); O’Conner v. Commonwealth Edison Co., 807 F. Supp. 1376, 1390
(C.D. Ill. 1992) (“[N]o medical doctor is automatically an expert in every medical
issue merely because he or she has graduated from medical school or has achieved
certification in a medical specialty.”), aff ’d, 13 F.3d 1090 (7th Cir. 1994), cert.
denied, 512 U.S. 1222(1994).
55. See Broders, 924 S.W.2d at 153 (though doctor’s medical expertise was
“undoubtedly greater than that of the general population,” this was not the
proper test).
56. Id. (emphasis added).
57. Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1112–13 (5th Cir. 1991).
58. Scott Brewer, Scientific Expert Testimony and Intellectual Due Process, 107 Yale
L.J. 1535, 1539 (1998). According to Scott Brewer, “[t]he distinctive mark of the
epistemic is the concern with warranted belief.” Id. at 1590.
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59. Id. at 1540–41 (defining the “law’s epistemology” as “the set of rules and institutions
that determine what, from a legal point of view, can be believed with sufficient
justification for purposes of the legal system”). See also Ronald J. Allen & Joseph
S. Miller, The Common Law Theory of Experts: Deference or Education?, 87 Nw.
U. L. Rev. 1131 (1993).
60. See Learned Hand, Historical and Practical Considerations Regarding Expert
Testimony, 15 Harv. L. Rev. 40, 55 (1901) (“[W]hen any conflict between
really contradictory propositions arises, or any reconciliation between seemingly
contradictory propositions is necessary, the jury is not a competent tribunal.”). For
subsequent discussions of the problem, see Jennifer L. Mnookin, Expert Evidence,
Partisanship, and Epistemic Competence, 73 Brook. L. Rev. 1009, 1014 (2008);
and Samuel R. Gross, Expert Evidence, 1991 Wis. L. Rev. 1113, 1185–86 (1991).
61. Samuel Gross has generally described this as “the essential paradox in the use of
expert evidence.” Gross, Expert Evidence, supra note 60, at 1182 (“We call expert
witnesses to testify about matters that are beyond the ordinary understanding
of lay people . . . and then we ask lay judges and jurors to judge their testimony.”);
see also Mnookin, Expert Evidence, supra note 60, at 1012 (“If the jury lacks the
knowledge that the expert provides, how, then, can it rationally evaluate the
expertise on offer?”). Of course, this problem becomes even more visible when
jurors must judge the testimony of competing experts. See Hand, Historical and
Practical Considerations, supra note 60, at 54–55 (“The trouble with all this is that it
is setting the jury to decide, where doctors disagree. The whole object of the expert
is to tell the jury . . . general truths derived from his specialized experience. But
how can the jury judge between two statements each founded upon an experience
confessedly foreign in kind to their own? . . . What hope have the jury, or any other
layman, of a rational decision between two such conflicting statements each based
upon such experience.”).
62. See Gross, Expert Evidence, supra note 60, at 1183 n.215 (discussing relevant
empirical studies and noting the unfortunate dearth of research examining medical
testimony in particular); see also Joseph Sanders, Scientifically Complex Cases, Trial
by Jury, and the Erosion of the Adversarial Process, 48 DePaul L. Rev. 355, 359–66
(1998).
63. Gross, Expert Evidence, supra note 60, at 1185; see also Brewer, Scientific Expert
Testimony, supra note 58, at 1680 (“[T]here are crucial steps that a nonexpert judge
or jury is, in a great many instances, not capable of performing in an epistemically
nonarbitrary manner.”).
64. Mnookin, Expert Evidence, supra note 60, at 1013; see also Gross, Expert Evidence,
supra note 60, at 1185–87; Brewer, Scientific Expert Testimony, supra note 58,
at 1670.
65. See Mnookin, Expert Evidence, supra note 60, at 1013 (noting that the “power of
proxy criteria . . . to discriminate between reliable and unreliable experts is likely to
be quite limited indeed”).
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66. For another model, see Gary Edmunds, Merton and the Hot Tub: Scientific
Conventions and Expert Evidence in Australian Civil Procedure, 72 Law &
Contemp. Probs., Winter 2009, at 159; see also Christopher Tarver Roberton,
Blind Expertise, 85 N.Y.U. L. Rev. 174, 179 (2010) (promoting the use of an
intermediary to select qualified experts to provide neutral litigation opinions in
civil cases). For a history of medical expertise in legal proceedings, see Stephan
Landsman, Of Witches, Madmen, and Products Liability: An Historical Survey of
the Use of Expert Testimony, 13 Behav. Sci. & L. 131 (1995).
67. Bowers v. Norfolk S. Corp., 537 F. Supp. 2d 1343, 1363 (M.D. Ga. 2007).
68. See, e.g., Raynor v. Merrel Pharm. Inc., 104 F.3d 1371, 1376 (1997) (“[W]e note that
even if the expert testimony were admissible under Daubert, it is unlikely that a jury
could reasonably find it sufficient to show causation.”).
69. See, e.g., Consolino v. Bayer Corp., 2011 U.S. Dist. LEXIS 152968 (S.D. Fla. Feb.
3, 2011) (summary judgment properly granted where plaintiff ’s expert’s testimony
regarding causation was excluded for failure to conduct a reliable differential
diagnosis); McGovern v. Brigham & Women’s Hosp., 584 F. Supp. 2d 418 (D.
Mass. 2008) (summary judgment granted because testimony of plaintiff ’s expert
was speculative and not sufficiently supported by reliable science); Hoy v. DRM,
Inc., 114 P.3d 1268 (Wyo. 2005) (summary judgment properly granted because
expert testimony regarding causation was properly excluded); Sutera v. Perrier
Group of Am., 986 F. Supp. 655 (D. Mass. 1997) (summary judgment granted
because plaintiffs offered no reliable evidence tending to show causal link between
defendant’s product and plaintiffs’ illness); Grimes v. Hoffmann-LaRoche, Inc.,
907 F. Supp. 33, 39 (D.N.H. 1995) (summary judgment granted where unreliable
testimony of ophthalmologist regarding causation was excluded).
70. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595 (1993).
71. Cf. Sanders, Scientifically Complex Cases, supra note 62, at 357 (observing a trend in
civil litigation to “erode the adversarial nature of trials”).
72. Id. at 2 (“[T]he growth of the use of science in court and the accompanying
increase in fact finding complexity have placed pressures on the ability of the civil
jury, embedded in an adversarial set of procedures, to correctly resolve disputes.”).
73. Id. at 387.
74. Joseph Sanders, The Controversial Comment C: Factual Causation in Toxic-Substance
and Disease Cases, 44 Wake Forest L. Rev. 1029, 1034 (2009) (“The pattern
is quite familiar. The trial court assesses plaintiff ’s causal proof in terms of both
general and specific causation, it excludes the testimony on one or both of these
causal grounds, and finally it enters a summary judgment for the defense because
the plaintiff no longer has any admissible evidence on the causal question.”) (citing
Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1108 (5th Cir. 1991) (exposure
to fumes containing particles of nickel and cadmium); Viterbo v. Dow Chem. Co.,
826 F.2d 420, 422 (5th Cir. 1987) (exposure to chemical herbicide); and many cases
involving the drug Bendectin, including Turpin v. Merrell Dow Pharm., Inc., 959
12_9780199913633_endnote.indd 280 1/29/2014 8:24:44 PM

F.2d 1349 (6th Cir. 1992); Daubert v. Merrell Dow Pharm., Inc., 951 F.2d 1128
(9th Cir. 1991), vacated, 509 U.S. 579 (1993); DeLuca v. Merrell Dow Pharm.,
Inc., 911 F.2d 941 (3d Cir. 1990); Ealy v. Richardson-Merrell, Inc., 897 F.2d 1159
(D.C. Cir. 1990); Brock v. Merrell Dow Pharm., Inc., 874 F.2d 307 (5th Cir. 1989);
Richardson v. Richardson-Merrell, Inc., 857 F.2d 823 (D.C. Cir. 1988); Lynch
v. Merrell-National Labs., 830 F.2d 1190 (1st Cir. 1987)).
75. Empirical studies suggest that “expert evidence of civil plaintiffs, particularly
in toxic tort cases, is subject to greater scrutiny than that of civil defendants,
while the expert evidence of criminal prosecutors is subject to less scrutiny than
that of criminal defendants, or than that of civil parties.” Déirdre Dwyer, (Why)
Are Civil And Criminal Expert Evidence Different?, 43 Tulsa L. Rev. 381, 383
(2007).
76. See Samuel R. Gross, Substance and Form in Scientific Evidence: What Daubert
Didn’t Do, in Reforming the Civil Justice System 234, 252 (Larry Kramer
ed., 1996) (“The basic problem seems to be that judges do not want to look as
though they are abrogating the role of the jury as trier of fact. The legal sufficiency
of evidence is, technically, a question of law, but it looks and sounds like a judgment
on the weight of the evidence—it is a judgment on the weight of the evidence, only
an extreme one.”). As Samuel Gross observes, one possibility is is to “redefine the
question of causation . . . as one of ‘law’ (to be decided by the judge) rather [than]
‘fact’ (to be decided by the jury). . . . The issue is whether this factual question is for
juries to decide or for judges; the category in which it is placed, ‘factual’ or ‘legal’ is
simply a label we attach to that assignment.” Id. at 255.
77. See Calderon v. Thompson, 523 U.S 538, 555 (1998) (“Finality is essential to both
the retributive and the deterrent functions of criminal law. ‘Neither innocence nor
just punishment can be vindicated until the final judgment is known.’ ”) (quoting
McCleskey v. Zant, 499 U.S. 467, 491 (1991)); see also Paul M. Bator, Finality in
Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441,
452 (1963) (finality is a “crucial element of [the] effectiveness” of the substantive
criminal law).
78. Thompson, 523 U.S. at 555; see also Bator, Finality, supra note 77, at 451.
79. Thompson, 523 U.S. at 555.
80. Bator, Finality, supra note 77, at 451 (discussing conservation of resources beyond
the economic, including “all of the intellectual, moral, and political resources
involved in the legal system”).
81. Thompson, 523 U.S. at 556. See also Bator, Finality, supra note 77, at 452 (“Repose is
a psychological necessity in a secure and active society, and it should be one of the
aims—though, let me make explicit, not the sole aim—of a procedural system to
devise doctrines which, in the end, do give us repose, do embody the judgment that
we have tried hard enough and thus may take it that justice has been done.”).
82. See Bator, Finality, supra note 77, at 452 (“The idea of just condemnation lies at the
heart of the criminal law, and we should not lightly create processes which implicitly
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belie its possibility.”); Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack

on Criminal Judgments, 38 U. Chi. L. Rev. 142, 146 (1970) (“For many reasons,
collateral attack on criminal convictions carries a serious burden of justification.”).
83. See Bator, Finality, supra note 77, at 441 (“[W]e must be sure before we proceed to
the end, that we will not write an irrevocable finis on the page until we are somehow
truly satisfied that justice has been done.”).
84. See Daniel S. Medwed, Innocentrism, 2008 U. Ill. L. Rev. 1549 (“American
criminal law is undergoing a transformation due to the increasing centrality of
issues related to actual innocence in courtrooms, classrooms, and newsrooms.”);
Susan A. Bandes, Framing Wrongful Convictions, 2008 Utah L. Rev. 5 (2008)
(“Concern over wrongful convictions has led to an ‘innocence movement’ that
has managed to bridge ideological divides, rouse people to action, and achieve
unprecedented success in reforming the operation of the death penalty.”).
85. See generally Bandes, Framing Wrongful Convictions, supra note 84. Daniel Medwed
has used the term “innocentrism” to describe the global impact of this movement.
Medwed, Innocentrism, supra note 84, at 1549.
86. See Jon B. Gould & Richard A. Leo, One Hundred Years Later: Wrongful Convictions
After a Century of Research, 100 J. Crim. L. & Criminology 825, 830 (citing the
significance of DNA cases in highlighting “frailities of the criminal justice system”);
see also Medwed, Innocentrism, supra note 84, at 1549 (“ ‘[I]nnocentrism[]’ derives
mainly from the emergence of DNA testing and the subsequent use of that
technology to exonerate innocent prisoners.”).
87. United States v. Garsson, 291 F. 646, 649 (S.D.N.Y. 1923) (our criminal justice
system “has been always haunted by the ghost of the innocent man convicted. It is
an unreal dream.”).
88. Cf. Medwed, Innocentrism, supra note 84, at 1563 n.75 (“Proving a person’s
innocence definitively is essentially impossible—even in DNA cases, a prosecutor
could always claim . . . potential contamination of the evidence as a source of doubt
regarding innocence.”).
89. See Samuel R. Gross, Convicting the Innocent, 4 Ann. Rev. L. & Soc. Sci. 173, 189
(2008) (arguing that false convictions “are commonplace events, inconspicuous
mistakes in ordinary criminal investigations that never get anything close to the
level of attention that sometimes leads to exoneration”; and asserting that “[w]e do
know that convictions of innocent defendants are a regular occurrence in the most
serious criminal cases.”).
90. See, e.g., id. at 175 (“The frequency of false convictions is sometimes described as
a ‘dark number’—an unknown quantity—and it is. Worse, it cannot be estimated
from any information we do know.”). For competing approaches to the empirical
question, see Ronald J. Allen & Larry Laudan, Why Do We Convict as Many
Innocent People as We Do?, 41 Tex. Tech L. Rev. 65 (2008); Brandon L. Garrett,
Judging Innocence, 108 Colum. L. Rev. 55 (2008); and D. Michael Risinger,
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Innocents Convicted: An Empirically Justified Factual Wrongful Conviction Rate, 97

J. Crim. L. & Criminology 761 (2007).
91. See Gross, Convicting the Innocent, supra note 89, at 174 (“In theory, we should have
known all along that false convictions happen and that they are caused by false or
misleading evidence. . . . But knowing that something must be true is not the same
as seeing that it is true; knowing abstractly that innocent people are convicted is
a far cry from knowing their names and faces, and learning how their lives were
destroyed.”).
92. See generally Gould & Leo, One Hundred Years Later, supra note 86.
93. See Innocentrism, supra note 84, at 1551 (“All of the attention paid to actual
innocence by litigators, academics, legislators, authors, and even television
executives signals a new era in which fact-based arguments surrounding
guilt or innocence may begin to trump or at least hold their own with the
traditional rights-based arguments that have been the norm in criminal law for
generations.”).
94. See Gross, Convicting the Innocent, supra note 89, at 174 (recent exonerations have
led to a “spate of new laws that make post-conviction DNA testing more readily
available”); see also Medwed, Innocentrism, supra note 84, at 1550 (“A number of states
have even gone beyond the realm of DNA and implemented legislation designed
to address the root causes of wrongful convictions, for instance, by modifying
the manner in which eyewitness identification procedures are conducted.”); Dist.
Att’y’s Office for the Third Judicial Dist. v. Osborne, 557 U.S. 52, 55 (2009) (“DNA
testing has an unparalleled ability both to exonerate the wrongly convicted and to
identify the guilty. It has the potential to significantly improve both the criminal
justice system and police investigative practices. The Federal Government and
the States have recognized this, and have developed special approaches to ensure
that this evidentiary tool can be effectively incorporated into established criminal
procedure—usually but not always through legislation.”).
95. See Gross, Convicting the Innocent, supra note 89, at 174 (“[A]cross the country,
concern about executing the innocent has been the major cause for a substantial
reduction in support for capital punishment”); Bandes, Framing Wrongful
Convictions, supra note 84, at 7 (“It is no exaggeration to say that wrongful
convictions spurred and defined a movement—the most successful death penalty
reform movement in our lifetime.”).
96. See Gross, Convicting the Innocent, supra note 89, at 174 (recent exonerations
have “sparked moves to reform basic aspects of criminal investigation, including
eyewitness identification and custodial interrogation procedures; testimony by
jailhouse informants; and the preservation, testing, and use of physical evidence”)
(citations omitted).
97. See Osborne, 557 U.S. at 75 (“DNA evidence will undoubtedly lead to changes in
the criminal justice system. It has done so already.”).
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98. As Chief Justice Roberts articulated this conundrum: “The dilemma is how to
harness DNA’s power to prove innocence without unnecessarily overthrowing the
established system of criminal justice.” Id. at 2316.
99. 18 U.S.C. §§ 3600, 3600A (2006).
100. Innocence Project, http://www.innocenceproject.org/; see also Gould and
Leo, One Hundred Years Later, supra note 86, at 830 (commenting on the
contributions of the founding members of the Innocence Project, Barry Scheck
and Peter Neufeld).
101. Bandes, Framing Wrongful Convictions, supra note 84, at 10. See also Keith
A. Findley, Defining Innocence, 74 Alb. L. Rev. 1157, 1160 (2011) (“The innocence
movement got its initial momentum from using new evidence—primarily DNA
evidence—to prove factual, as opposed to ‘legal,’ innocence.”).
102. Bandes, Framing Wrongful Convictions, supra note 84, at 11.
103. My focus remains, as it has been all along, on triad-only convictions. Though the
ideas I discuss may bear on other types of non-DNA exonerations, the science
dependence of SBS cases may uniquely impact the work of post-conviction
innocence protection.
104. Overall, the odds of post-conviction relief in federal court are dismal: the grant
rate for noncapital cases is only 34 percent. Joseph L. Hoffmann & Nancy J. King,
Rethinking the Federal Role in State Criminal Justice, 84 N.Y.U. L. Rev. 791, 809
(2009) (estimating that of more than 18,000 petitions filed annually, fewer than
sixty-five are expected to be granted).
105. Herrera v. Collins, 506 U.S. 390, 404 (1993) (“[O]ur habeas jurisprudence makes
clear that a claim of ‘actual innocence’ is not itself a constitutional claim, but
instead a gateway through which a habeas petitioner must pass.”).
106. See, e.g., Brandon L. Garrett, Claiming Innocence, 92 Minn. L. Rev. 1629 (2008)
(“[T]he Constitution supports the adoption of a freestanding innocence claim
that would grant relief to those who can show that, more likely than not, no
reasonable jury would convict in light of the new evidence.”) (2008). Jordan
Steiker, Innocence and Federal Habeas, 41 U.C.L.A. L. Rev. 303, 312 (1993) (“[T]he
Court should authorize the federal courts to entertain bare-innocence claims
whether or not such claims can fairly be characterized as ‘constitutional.’ ”).
107. See U.S. v. Hank Tak Lee, 667 F.3d 397 (3rd Cir. 2012).
108. For an overview of how previously accepted lore regarding fire investigation was
officially repudiated, see John J. Lentini, Fires, Arsons, and Explosions: Scientific
Status, in Modern Scientific Evidence: The Law and Science of
Expert Testimony §§ 39.21–54 (Faigman et al. eds., 2009). See also United
States v. Hebshie, No. 02CR10185-NG, 2010 WL 4722040 (D. Mass. Nov. 15,
2010) (vacating arson conviction).
109. U.S. v. Hank Tak Lee, 667 F.3d at 407–08.
110. Id. at 405 n.8.
111. Id.
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112. Id. at 407.

113. Id. at 407–08.
114. See Caitlin Plummer & Imran Syed, “Shifted Science” and Post-Conviction Relief, 8
Stan. J. C.R. & C.L. 259, 294 (2012) (“The full scope of [Han Tak Lee] likely will
not be known for several more years, and may require a review from the Supreme
Court. If ultimately taken to mean that new science—showing the expert
testimony at trial to have been scientifically flawed and unreliable—is grounds for
a viable due process claim on habeas, then Han Tak Lee is a truly groundbreaking
decision.”).
115. Effective September 1, 2013, a Texas law provides an avenue for post-conviction
relief where new scientific evidence casts doubt on a conviction. If, by a
preponderance of the evidence, the petitioner would not have been convicted had
the new scientific evidence been presented at trial, the conviction may be vacated.
S.B. 344, 83d Leg., Reg. Sess. (Tex. 2013). The statute appears to be the first of
its kind.
116. See generally Emily Garcia Uhrig, A Case for a Constitutional Right to Counsel
in Habeas Corpus, 60 Hastings L.J. 541 (2008) (arguing for the constitutional
right to habeas counsel).
117. Imbler v. Pachtman, 424 U.S. 409, 427 n.25 (1976); see also Douglas H. Ginsberg
& Hyland Hunt, The Prosecutor and Post-Conviction Claims of Innocence: DNA
and Beyond?, 7 Ohio St. J. Crim. L. 771, 771 (2010); Barry Scheck, Professional
and Conviction Integrity Programs: Why We Need Them, Why They Will Work,
and Models for Creating Them, 31 Cardozo L. Rev. 2215, 2249 (2010); Fred
C. Zacharias, The Role of Prosecutors in Serving Justice After Convictions, 58 Vand.
L. Rev. 171, 171 (2005).
118. Model Rules of Prof’l Conduct R. 3.8(g), (h).
119. Model Rules of Prof’l Conduct R. 3.8( g).
120. Model Rules of Prof’l Conduct R. 3.8(h).
121. Bruce A. Green, Prosecutors and Professional Regulation, 25 Geo. J. Legal
Ethics 873, 890 (2012).
122. Mike Ware, Dallas County Conviction Integrity Unit and the Importance of Getting
It Right the First Time, 56 N.Y.L. Sch. L. Rev. 1033, 1040–41 (2012).
123. In Colorado, the Justice Review Project exemplifies a collaborative model centered
in the Attorney General’s office. See Howard Pankratz, DNA Exoneration Project
Gets $ 1.2 Million, Denver Post (Oct. 1, 2009).
124. Cyrus R. Vance, A Conviction Integrity Initiative, 73 Alb. L. Rev. 1213, 1213
(2010); see also Cyrus R. Vance, Dist. Attorney, New York Cnty., Remarks at the
Conviction Integrity Conference (Dec. 6, 2011).
125. See Daniel S. Medwed, The Prosecutor as Minister of Justice: Preaching to the
Unconverted from the Post-Conviction Pulpit, 84 Wash. L. Rev. 35, 59–61 (2009).
126. A similar problem arises when the integrity of a particular police officer or police
unit is in question, requiring a new look at the cases handled by the officer or
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unit under suspicion. For a description of one institutional response, see Frances
Robles, Panel to Review Up to 50 Convictions Involving a Discredited Detective,
N.Y. Times ( July 1, 2013).
127. See Daniel S. Medwed, The Zeal Deal: Prosecutorial Resistance to Post-Conviction
Claims of Innocence, 84 B.U. L. Rev. 125, 176–77 (2004); see also Green, Prosecutors
and Professional Regulation, supra note 121, at 891–93 (noting prosecutorial
resistance to the model rule changes regarding post-conviction obligations of
prosecutors).
128. Peter Neufeld, co-director of the Innocence Project, has noted, “given the nature
of DNA exonerations, women are not going to be able to be benefited by it as
much. It’s just more difficult to exonerate because we don’t have DNA evidence
to test.” Sandra Svoboda, When Innocence Is Pink, Metro Times (Detroit) ( Jan.
12, 2011).
129. Kent Roach, The Role of Innocence Commissions: Error Discovery, Systematic
Reform or Both?, 85 Chi.-Kent L. Rev. 89, 91–92 (2010). For a summary of the
nine states that have adopted innocence commissions of an advisory nature, all
since 2000, see Robert J. Norris et al., “Than That One Innocent Suffer”: Evaluating
State Safeguards Against Wrongful Convictions, 74 Alb. L. Rev. 1301, 1326–27
(2011).
130. For a helpful comparison of the U.S. and U.K. approaches, see Lissa Griffin,
Correcting Injustice: Studying How the United Kingdom and the United States
Review Claims of Innocence, 41 U. Tol. L. Rev. 107 (2009); see also David Wolitz,
Innocence Commissions and the Future of Post-Conviction Review, 52 Ariz. L. Rev.
1027, 1047–49 (2010) (describing why North Carolina chose this commission
model); see also Barry C. Scheck & Peter J. Neufeld, Toward the Formation of
“Innocence Commissions” in America, 86 Judicature 98, 99–100 (2002) (“There
is no one best way to create state or federal level innocence commissions. One can
easily envision such a commission being formed through legislative enactment,
executive order, or appointment by the chief judicial officer of a state.”).
131. Both the CCRC and NCIIC are independent, government-funded entities with
broad subpoena powers and an ability to transfer cases directly to an appellate
judicial panel for remedial action. These are the core features of an innocence
commission whose success depends on intensive factual investigation. Despite
important similarities, differences between the CCRC and NCIIC raise real
questions of institutional design.
For a sense of how organizational structure, mission, and powers might
be defined, consider North Carolina’s example. In 2006, a law was passed
delineating the Commission’s membership (which includes representatives
from across the criminal justice system) and authorizing the employment of
a director and staff (which currently consists of five members). Act of July 27,
2006, Sess. L. 2006-184, 2006 N.C. Sess. Laws 647 (codified at N.C. Gen. Stat.
§ 15A-1460–65 (2012)). According to the statute, the primary function of the
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Commission is “to conduct inquiries into claims of factual innocence, with

priority to be given to those cases in which the convicted person is currently
incarcerated solely for the crime for which he or she claims factual innocence.”
Petitioners do not waive the right to simultaneously or subsequently challenge
the conviction in other forums. Evidence of innocence must not already have
been presented at trial or at a post-conviction hearing; only in this limited sense
is post-conviction relief contingent on satisfaction of a “newness” requirement.
The Commission may compel witness testimony and issue subpoenas. After
hearing the evidence, it refers the case to a three-judge panel appointed by the
Chief Justice (consisting only of jurists without prior case involvement) if there
is “sufficient evidence of factual innocence to merit judicial review.” The vote
to refer must be by a majority or, in the case of guilty plea, unanimous. If the
petition reaches the judicial stage of the proceeding, unless the state consents to
vacate the conviction, there is an evidentiary hearing at which the petitioner has
a right to counsel. The panel vote requires unanimity. There is no right to appeal
either the court’s ruling or, before this, the Commission’s decision not to forward
the case for review. Id.
132. The executive director of the NCIIC’s precursor, an advisory body, specifically
remarked on this virtue of error correcting Commissions: “Although innocence
claim review is an aggressive next step in the Commission’s work, the establishment
of a process for nonadversarial review of credible claims of innocence offers cost and
time savings for prosecution, defense, and the judiciary, in addition to establishing
a much needed forum for innocence claim review.” Christine C. Mumma, The
North Carolina Actual Innocence Commission: Uncommon Perspectives Joined by a
Common Cause, 52 Drake L. Rev. 647, 654 (2004).
133. In the 2010 fiscal year, total taxpayer cost per inmate ranged from $14,603
(Kentucky) to $60,076 (New York), with an average cost per inmate of $31,286.
Christian Henrichson & Ruth Delaney, VERA Inst. of Justice, The
Price of Prisons: What Incarceration Costs Taxpayers 9 (2012).
The annual budget for the NCIIC is $372,879. Roach, The Role of Innocence
Commissions, supra note 129, at 103.
134. Wolitz, Innocence Commissions, supra note 130, at 1042, 1048.
135. But see Robert Carl Schehr, The Criminal Cases Review Commission as a State
Strategic Selection Mechanism, 42 Am. Crim. L. Rev. 1289, 1294 (2005)
(cautioning that the innocence commission may be used as “an instrument to
placate public disaffection”).
136. Griffin, Correcting Injustice, supra note 130, at 111 (quoting Criminal Appeal Act,
1995 § 13(1)(a) (Eng.)).
137. See id.
138. Id. at 130.
139. Id. at 120 (quoting R. v. Richardson, [2004] EWCA (Crim.) 1784, 2004 WL
1476687, ¶16). For a discussion of two possible interpretations of “unsafety,” see
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Stephanie Roberts, “Unsafe” Convictions: Defining and Compensating Miscarriages

of Justice, 66 Mod. L. Rev. 441, 446 (2003).
140. Roberts, “Unsafe” Convictions, supra note 139 (“If, on the consideration of all the
facts and circumstances of the case before it, the court entertains real doubts about
whether the appellant was guilty of the offence of which he was been convicted,
the court will consider the conviction unsafe.”) (quoting R. v. Criminal Cases
Review Comm’n ex p. Pearson, [1999] 3 All ER 498, 503D-C).
141. Id. (“This court will regard a conviction as unsafe when on material before this
court, it appears that a person may have been convicted of a crime which he
may not have committed. That can be the result of a number of factors, such as
unreliable evidence having been admitted, a wrong direction having been given to
the jury, a failure to direct the jury properly as to the burden of proof, a muddling
summing up of the evidence, a failure to remind the jury of a defendant’s good
character, or there having been a failure by the judge to warn of the dangers upon
accepting some.”) (quoting R. v. Callaghan, [1999] EWCA Crim. 606).
142. N.C. Gen. Stat. § 15A-1469(h) (2012).
143. Since the NCIIC began its work, only four defendants have been exonerated. See
Cases Page, North Carolina Innocence Inquiry Commission, http://
www.innocencecommission-nc.gov/cases.html (last visited July 21, 2013).
144. Findley, Defining Innocence, supra note 101, at 1162 (“[W]hile the notion of
‘innocence’ does indeed mean factual innocence, in the sense that the defendant
committed no crime—to demand certainty is to demand the impossible.”).
145. Stefano Esposito, NU Launches Research on Innocent Women Who End Up in Jail,
Chicago Sun-Times (Nov. 29, 2012).
146. As legal scholar Brandon Garrett has observed, “[a]ny claim of innocence must
be evaluated based on its strength: namely, how the particular evidence interacts
with the evidence of guilt.” Brandon L. Garrett, Claiming Innocence, supra note
106, at 1646. Garrett has offered a helpful typology:
I divide claims of innocence into three classes: (1) substantial cases, limited
to those who can offer DNA or other evidence highly probative of identity;
(2) outcome-determinative cases, in which DNA results, scientific evidence, or
other evidence does not substantially undercut the conviction, but undermines
the conviction to some lesser degree, such that a reasonable jury would not convict
in light of the new evidence; and (3) inconclusive cases, in which it is equivocal
whether the evidence tends to show innocence. These categories represent points
along a spectrum of the probative impact of exculpatory evidence.
Id. (footnote omitted).
147. Consistent with this insight, a commission charged with reviewing SBS
convictions could adopt a standard for establishing innocence much like the
CCRC’s (although the CCRC’s focus on miscarriages is admittedly broader
than a mandate for the innocence commission I am contemplating). For recent
explorations of the relative merits of, and tensions between, due process models of
12_9780199913633_endnote.indd 288 1/29/2014 8:24:45 PM

criminal procedure and an innocence-centered framework, see generally George

Thomas, The Supreme Court on Trial: How the American Justice
System Sacrifices Innocent Defendants (2008). See also Medwed,
Innocentrism, supra note 84, at 1551 (describing this as “a new era in which
fact-based arguments surrounding guilt or innocence may begin to trump or at
least hold their own with the traditional rights-based arguments that have been
the norm in criminal law for generations”).
148. Herrera v. Collins, 506 U.S. 390, 399 (1993).
149. See Kenneth S. Broun, The Unfulfillable Promise of One Rule for All Presumptions,
62 N.C. L. Rev. 697, 709 (1984) (describing a “conclusive presumption” as
describing “the situation in which a finding of one fact is conclusive proof of the
existence of another fact, and evidence of the non-existence of the second fact will
not be received”).
150. See id. at 710.
151. As Barry Scheck has suggested, the DNA exonerations have provided “what
is plainly a ‘learning moment.’ ” Scheck & Neufeld, Toward the Formation of
“Innocence Commissions,” supra note 130, at 101.
152. Laurence Tribe has posited that the presumption of innocence serves an important
expressive function in its “refusal to acknowledge prosecutorial omniscience in
the face of the defendant’s protest of innocence. . . .” Laurence H. Tribe, Trial by
Mathematics: Precision and Ritual in the Legal Process, 84 Harv. L. Rev. 1329,
1370 (1971).
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INDEX
Abuse, reporting requirements for, 35–36 American Academy of Pediatrics, 4,

Abusive Head Trauma (AHT), 21, 97, 21–22, 35, 220n12, 229–230n45
139, 143, 154, 220n12 American Bar Association Model
Accounts of injury, 40–41, 97–98 Rules, 211
Acquittal cases, 128–145 American Prosecutors Research
Baraz, 131 Institute, 39
Britts, 138–141 Anchoring , 73
Brown, 130 Apparent Life-Threatening Events
Campbell, 132 (ALTEs), 9–10
Daniel, 131 Arson, 210
defense counsel, competency and Availability bias, 73
expertise of, 134
expert testimony in, 133–134 Babysitters. See Caregivers
Kline, 128–129 Baraz, Mazna, 131
Marsden, 129 Barritt, Darra, 177
Martin, 132–133 Battad, Sabrina, 166–167
McAdoo Alston, 129–130 “The Battered-Child Syndrome”
Medrano-Cambara, 135–138 (Kempe), 34–35
Mock, 141–145 Baumer, Julie, 82–85
Parlock, 130–131 Bellamy, Carolyn, 43–44
rates of, 128 Belsky, Jay, 14–15
Admissibility standards for expert Benign Enlargement of the Subdural
testimony, 77–82, 202–205 Space (BESS), 64. See also Benign
Adversary system, 68, 82, 183, 197–198, External Hydrocephalus
200, 202–204 Benign External Hydrocephalus (BEH),
Alamri family, 148–149 26, 155, 161. See also Benign
Aleman, Rick, 99–101 Enlargement of the Subdural
ALTEs (Apparent Life-Threatening Space
Events), 9–10 Berdick, Cindy, 159
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292 • Index
“Beyond a reasonable doubt” standard, Chronic subdurals, 9, 24-25, 28, 43, 59,
174–175 61-64, 91-92, 94, 144, 145, 147,
Bias 149, 182
availability, 73 Civil courts
cognitive, 13–14, 212 differential diagnosis, 75–78, 79–81
confirmation, 74 discovery depositions, 200, 276n15
cultural, 14–16 expert testimony, 204–205, 206–207
investigator, 103–104 Clinical decision making , 17, 71.
multiple alternative, 73–74 Clinical experience, primacy of,
in research studies, 19 32–34, 38
Birth trauma, 156 Coagulation profiles, 31–32
Black, Alvin, 153–155 Cognitive dispositions to
Blaming, psychology of, 13–16 respond, 71–75
Blood, dating of, 24–25 Cognitive errors, 71–75
Blunt force head trauma, 42, 55, 129 Collateral attacks, 181–193
Bowers v. Norfolk Southern Corp. Calderaro, 182–184
(2007), 75–76 Del Briggs, 190–193
Brady v. Maryland (1963), 189–190, Del Prete, 183
198, 199 Edmunds, 183, 193
Britton, Linda, 146–147 habeas relief petitions, 178–179,
Britts, Richard, 105–112, 138–141 184–186, 187–190, 192–193,
Brown, Jerry, 179, 180 210–211
Brown, Tenesia, 130 ineffective assistance motions, 183
Bureau of Labor Statistics, U.S., 15 Moore, 184–186, 193
Morales, 187–190
Caffey, John, 1–2, 220n8 newly discovered evidence motions,
Calderaro, Alma, 58–66, 182–184 182–183
Calise, Tiffany, 176 Confessions and interrogations, 97–126
Campbell, Jennifer, 132 Aleman case, 99–101
Caplan family, 152–153 Britts case, 105–112
Caregivers caregiver accounts of injury, 40–41,
accounts of injury given by, 97–98
40–41, 97–98 diagnosis resulting from, 34
non-maternal, 14–16, 225n78 dispositional factors affecting ,
revival shaking by, 98–99 104–105
Cerebral edema, xi, 5 investigator bias impacting , 103–104
Cerebral venous thrombosis (CVT), maximization techniques, 104, 117
26, 177 medical diagnoses, validity established
Charge bargains, 264n5 through, 97
Child abuse specialists, 34–37, 198 Medrano-Cambara case, 112–120
Child rearing, cultural expectations of, minimization techniques, 104,
14–16, 225n77 110, 116
13_9780199913633_Index.indd 292 1/29/2014 8:20:01 PM

Index • 293
non-confession confessions, 97–99 force and impact considerations,

situational factors affecting , 102–104 22–23, 229–230n45, 229n43
Tiscareno case, 120–126 history of, 1–4
unreliability of, 99–105 lucid intervals and, 3, 5–6, 24–25, 196
Confirmation bias, 74 medical outcomes, improving ,
Convictions 195–196
defined, xi non-abusive origins, lack of research
finality of, 208–209 on, 70, 196
integrity initiative, 212 perpetuation of, 31, 36–37, 42–44,
Cortical vein thrombosis, 148 68–70, 71
Cox, Brittany, 165–166 prosecutorial certainty about,
Criminal Cases Review Commission 37–41, 68–70
(CCRC), 214, 215–216, 286n131 retinal hemorrhages, xi, 2, 5, 6, 25,
CSI effect, 48 233n72
CVT (cerebral venous thrombosis), subdural hematomas, xi, 1, 2, 5, 24–25
26, 177 timing of injury and, 24–25, 80
Dias, Vincent, 161
Daniel, Jeanne, 131 Differential diagnosis
Daubert standard for admissibility, 80, challenges of, 25–27
202–203 in civil vs. criminal courts,
Day care arrangements, 14–16 75–78, 79–81
Defense counsel definitions of, 75–76
in acquittal cases, 134 factors influencing , 37
adequacy of, 67, 68 legal perspective on, 75–82
ineffective assistance motions, 183 limitations of, 70
Del Briggs, Brandy, 190–193 medical outcomes, improving ,
Del Prete, Jennifer, 7–13, 127–128, 195–196
178, 184 sources of error in, 73–75
Depositions, 200–202, 276n15 triad-based prosecutions, use in, 32
DeVita, Laura, 169–170 Differential etiology, 27, 75, 76–77
Diagnostic triad, 1–44. See also Discovery, 197–202
Differential diagnosis; Dismissal cases, 145–150
Misdiagnosis; Triad-based Alamri, 148–149
prosecutions Britton, 146–147
cerebral edema, xi, 5 factors affecting , 146, 148
child abuse specialists on, 34–37, 198 Guardascione, 149–150
cognitive bias and perpetuation rates of, 145–146
of, 13–14 Stow, 147–148
contemporary features of, 31–34 DNA exonerations, 99, 159, 209,
criticisms and complications of, 17–20 212–213, 214, 216
evidence-based medicine and, 17–20, Donohoe, Mark, 18
32, 71 Duhaime, Ann-Christine, 229n43
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294 • Index
Edmunds, Audrey, xi, xii, 27–30, 181, Habeas relief, 178–179, 184–186,
183, 193 187–190, 192–193, 210–211
“The ‘Effects’ of Infant Day Care Hangbin, Li, 164–165
Reconsidered” (Belsky), 14–15 Harwell, Suzanna, 161–162
Errors in diagnosis. See Misdiagnosis Hemosederin, 186
Evidence-based medicine, 17–20, 32, 71 Henderson, Cathy Lynn, 23
Expert testimony Hutton, Seth, 153, 154
in acquittal cases, 133–134 Hypoxic-ischemic injuries, 21, 24
admissibility standards for, 77–82,
202–205 Idiopathic conditions, 216
civil vs. criminal cases, 204–205, Impact and force of injury, 22–23,
206–207 229n43, 229–230n45
depositions of, 200–202 Ineffective assistance motions, 183
reform strategies for, 202–205 “Infantile Subdural Hematoma and Its
Relationship to Whiplash Injuries”
Falls, 22–23, 230n50 (Guthkelch), 87
Federal court review, reform strategies Injury
for, 210–211 caregiver accounts of, 40–41, 97–98
Federal Innocence Protection Act of timing of, 24–25, 80
2006, 209 Innocence commissions, 214–217
Federal Rules of Civil Procedure Innocence movement, 196, 209
pre-trial deposition-discovery, 200 Innocence Project, 209
reform of discovery-related use of Innocent defendants pleading guilty,
the deposition in Rules 26–37, 163–165, 171
276n15 In re. See name of party
Feedback sanction, 74 Interrogations. See Confessions and
Finality of convictions, 208–209 interrogations
Force levels, 22–23, 229–230n45, 229n43 Investigator bias, 103–104
Forensic medicine, 48, 242n4 Ioannidis, John, 19, 70
Forensic science, 48–49, 242nn4–5
Frye standard for admissibility, 202–203 Jackson v. Virginia (1979), 271–272n35
Johnson, Amy, 167–168
Geddes, Jennian, 21 Judicial review, 173–193
Gilley, Samantha Lynn, 167 collateral attacks, 181–193. See also
Gracias, Teresa, 155–157 Collateral attacks
Groupthink, 74 reform of, 210–211
Guardascione, Giovaninna, 149–150 sufficiency challenges, 173–181. See
Guilty pleas, 159, 264n3. See also Plea also Sufficiency challenges
bargaining
Guthkelch, A. Norman, 1, 33–34, 87, Kahneman, Daniel, 14
133, 220n9 Kempe, C. Henry, 34–35
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Index • 295
Kline, Kelly, 128–129 Moral panic, 16, 225n79

Kruger, Gretchen Marie, 160 Mothers, working , 14–16, 224n69,
225n77
Lee, Han Tak, 210–211 MRI (magnetic resonance imaging), 19
Logical fallacies, 3–4, 18 Multidisciplinary child protection teams,
Lopsided pleas, 159–160, 162, 165, 35, 36–37, 197, 238n16
171–172 Multiple alternative bias, 73–74
Lucid intervals, 3, 5–6, 24–25, 196
National Academy of Sciences (NAS),
Magnetic resonance imaging (MRI), 19 49, 195
Marsden, Damien, 129 National Association of Medical
Martin, Andre, 132–133 Examiners (NAME), 221nn17–18
McAdoo Alston, Cheryl, 129–130 National Center on Child Abuse and
Medical outcomes, improvement of, Neglect, 4
195–196 National Center on Shaken Baby
Medill Justice Project, 219n1, 258n2 Syndrome, 17, 35–36, 39, 219n1
Medrano-Cambara, Keny, 112–120, National District Attorneys Association,
135–138 39, 211
“Mimics” of abuse, 19, 25, 26, 70 National Institutes of Health (NIH), 19
Misdiagnosis, 67–95. See also North Carolina Innocence Inquiry
Differential diagnosis Commission (NCIIC), 214, 216,
anchoring and, 73 286–287n131
availability bias and, 73 Newly discovered evidence motions,
Baumer case, 82–85 182–183
causal factors of, 71–72 Nickens, Nyemah, 170–171
clinical decision making and, 71 No-arrest cases, 150–157
cognitive errors and, 71–75 Black, 153–155
groupthink and, 74 Caplan, 152–153
persistence of, 70 Gracias, 155–157
premature closure and, 72, 74 Weidner, 150–151
Tiscareno case, 90–95 No contest pleas, 159
unpacking principle and, 73 Non-confession confessions, 97–99
Ware case, 67–70, 82 Non-maternal caregivers, 14–16, 225n78
Witt case, 85–90 North Carolina Innocence Inquiry
Mitchell, Samantha Anne, 176–177 Commission (NCIIC), 214, 216,
Mock, Patti J., 141–145 286–287n131
Model Rules of American Bar
Association, 211 Ogden, David, 199
Mondale Act of 1979, 238n15
Moore, Beverly, 49–58, 184–186, 193 Papilledema, 186
Morales, Byron, 187–190 Parlock, Deborah, 130–131
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296 • Index
Plea bargaining , 159–172 relationships with doctors, 38,

Battad case, 166–167 197–198
Berdick case, 159 training for, 39–40
classifications of, 264n5
Cox case, 165–166 Race, diagnostic determinations and, 37
DeVita case, 169–170 Ray Helfer Society, 35, 59
Dias case, 161 Reasonable degree of medical certainty,
Gilley case, 167 37, 47, 175
Hangbin case, 164–165 Re-bleeding , 28, 40
Harwell case, 161–162 Reform of criminal justice system,
innocent defendants pleading guilty, 195–217
163–165, 171 discovery depositions, 200–202,
Johnson case, 167–168 276n15
Kruger case, 160 expert testimony, 202–205
lopsided pleas, 159–160, 162, 165, federal court review, 210–211
171–172 innocence commissions, 214–217
Nickens case, 170–171 medical outcomes, improving ,
prevalence of, 159, 264n3 195–196
prosecutorial shift toward, 161–162 pretrial discovery, 197–202
Saitta case, 166 prosecution team, 197–200, 211–214
Voss case, 164 sufficiency challenges, 206–207
Wheeland case, 168–169 wrongful convictions, reexamination
Posner, Richard, 81, 99 of, 208–210, 211–214
Post hoc ergo propter hoc fallacy, 80–81 Reification, 38
Precautionary principle, 77 Reiteration effects, 41
Premature closure, 72, 74 Reporting requirements for abuse, 35–36
Pretrial discovery, 197–202 Researcher bias, 19
Proof requirement, 174 Respiratory syncytial virus (RSV),
Prosecution paradigm, xii, 6. See also 148, 177
Triad-based prosecutions Retinal folds, 6
Prosecutors Retinal hemorrhages, xi, 2, 5, 6, 25,
on caregiver accounts, 40–41 233n72
disclosure obligations of, 197–199 Retinoschisis, 6
motivations of, 39 Revival shaking , 98–99
perpetuation of triad and, Rule in requirement, 78, 82
37–38, 68–70 Rule out requirement, 78
plea bargains, willingness to offer,
161–162 Saitta, Lois, 166
reexamination of wrongful Santiago, Aritzaid, 44, 175
convictions, 211–214 Sardisco, Tina, 44
reiteration effects affecting , 41 Satisficing , 72
13_9780199913633_Index.indd 296 1/29/2014 8:20:02 PM

Index • 297
Science, relationship with criminal Triad-based prosecutions, 45–66,

justice system, xiii, xiv, 196, 127–157. See also Diagnostic triad
207–208 acquittal cases, 128–145. See also
Search satisfying , 248n52 Acquittal cases
Sentence bargains, 264n5 caregiver accounts and, 40–41
Short falls, 22–23, 129, 230n50 clinical experience, primacy of,
Sickle cell disease, 67–68, 69 32–34, 38
Smith, Shirley, 178–181 courtroom dynamics in, 46–47
Socioeconomic status, diagnostic dismissal cases, 145–150. See also
determinations and, 37 Dismissal cases
Spurgeon, Stephanie, 42–43 expert testimony. See Expert testimony
Stow, Damian, 147–148 inequality in outcomes of, 127–128
Strickland v. Washington (1984), judicial review, 173–193. See also
184, 189 Judicial review
Subdural hematomas, xi, 1, 2, 5, 24–25 methodology for, 45–46, 47
Subdural hygroma, 88 no-arrest cases, 150–157. See also
Sudden Infant Death Syndrome No-arrest cases
(SIDS), 181 origins and growth of, 4, 5–7
Sufficiency challenges, 173–181 plea bargaining , 159–172. See also
Barritt, 177 Plea bargaining
Calise, 176 prosecutorial certainty and,
Del Prete, 178 37–41, 68–70
Edmunds, 181 reform. See Reform of criminal
Mitchell, 176–177 justice system
reform strategies for, 206–207 reiteration effects and, 41
Santiago, 175 Triage cuing , 74
Smith, 178–181 Tversky, Amos, 14
Sunk costs, 74
Supreme Court, U.S. United Kingdom, innocence commission
on “beyond a reasonable doubt” in, 214, 215–216, 286n131
standard, 174 Unpacking principle, 73
on discovery depositions, 200 Unreliable confessions, 99–105
on expert opinions, 207 U.S. Bureau of Labor Statistics, 15
on forensic science, 48–49 U.S. Supreme Court. See Supreme
on plea bargaining , 159 Court, U.S.
on presumption of innocence, 217
Venous sinus thrombosis (VST), 84, 85
Timing of injury considerations, Voss, Karen, 164
24–25, 80
Tiscareno, Abigail, 90–95, 120–126 Walster, Elaine, 13–14
Training for prosecutors, 39–40 Ware, Melonie, 67–70, 82
13_9780199913633_Index.indd 297 1/29/2014 8:20:02 PM

298 • Index
Weidner family, 150–151 Witt, Drayton, 41, 85–90, 204

Wheeland, Shawn, 168–169 Woodward, Louise, 5
Whiplash shaken infant syndrome, Working mothers, 14–16, 224n69,
1–2, 220n8. See also Shaken Baby 225n77
Syndrome (SBS) Wrongful guilty pleas, 163. See also Plea
Wilkes, Robert, 43 bargaining
Winship, In re (1970), 174
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Flawed Convictions - Shaken Baby Syndrome - and The Inertia of Injustice-Oxford University Press (2015)

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Flawed Convictions - Shaken Baby Syndrome - and The Inertia of Injustice-Oxford University Press (2015)

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Library of Congress Cataloging-in-Publication Data

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1. A Medical Diagnosis of Crime 1

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A woman who spent over a decade in prison for shaking a baby

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In 1971, a British pediatric neurosurgeon named A. Norman

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repeated shaking of infants.” He concluded with a call for awareness: “The

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symptoms reflected early understandings of the diagnosis, emphasizing the

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conflating the two propositions seems fairly obvious, at least in hindsight.9

In 1992, the National Center on Child Abuse and Neglect funded a

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In the 1990s, the new prosecution paradigm proliferated. Based on the

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It is undisputed that the victim sustained subdural hematomas, retinal

The Prosecution Paradigm

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On cross-examination, Doctor N. explained that the baby’s chronic bleeding

It used to be called a near miss SIDS. It is a description of an event

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Well, based on the description of what occurred she had an ALTE,

On cross-examination, Doctor H. agreed that in just under half of the

Finally, Doctor H. acknowledged that, because Isabella was transferred to

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The Lure of Blame

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unpredictable set of circumstances, beyond anyone’s control or anticipation, a

Newspaper reports about this finding sent shudders of guilt through

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remains is the misguided impression that Belsky scientifically estab-

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arrangements themselves. And it facilitates a turn to judging the mother,

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“The ‘triad’ is a myth,” declared a leading child abuse specialist and

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commitment triggered a review of the evidence supporting a number of dis-

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studies was highly problematic from a methodological perspective. Because

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The New SBS

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Challenges to the theory of traumatic injury first emerged in 2001, with

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Awareness that the former SBS “implied unrealistic certainty” runs