A defense lawyer’s nightmare: An indigent client who distrusted the system and her lawyer, a severely injured infant, and the full weight of the state coming to bear.

I was appointed to represent a young, African American woman in an action brought by the Texas Department of Protective and Regulatory Services to terminate her parental rights to the injured child as well as his older brother and sister is case in late July, 1999. Within a few days of receiving the initial paperwork an indictment was handed down charging my client with a first degree felony, injury to a child. The warrant for her arrest was served immediately following a hearing to determine her visitation privileges, placing her in the County Jail with a $25,000.00 bond.

The pertinent part of the indictment read as follows:
“...[T]hat (defendant’s name) ....did then and there, intentionally and knowingly, cause serious bodily injury to (minor’s name), a child younger than 15 years of age by shaking the said (minor’s name) with her hands;...

Shaken Baby Syndrome (SBS) is a relatively new diagnosis, primarily due to the recent technological advances in Magnetic Resonance Imaging or MRI’s as they are commonly called. This diagnostic imaging tool now enables the medical profession to quickly determine the presence of a subdural hematoma, one of the two principal indicators, along with bilateral retinal hemorrhages, of SBS.
This article is intended to acquaint the reader with a basic knowledge of this syndrome as well as suggestions on how to prepare a proper defense and spot weaknesses in the prosecution’s case.

Pre-trial Matters

In cases where the child is severely injured but does not die, or when the child is deceased but has siblings who reside or have contact with the suspected “shaker”, the cases are often filed concurrently as criminal cases as well as a civil action to terminate or limit access by the parents.
Typically the experts in the case will include treating physicians of the child both prior to and following the alleged incident. I urge any member of the legal field facing this type of case to thoroughly read each and every page of the medical records and to have a medical expert explain any areas you don’t thoroughly understand.

The medical records contain many tidbits of information which can be used to create doubt in the minds of a judge or jury. Often other suspects, disagreements as to extent and severity of injuries among the medical professionals, and poor terminology can be useful. In a recent case I found the physicians, without exception, used the phrasing “these injuries are consistent with Shaken Baby Syndrome”. During cross examination we discussed many other conditions which could cause one or more of the symptoms and injuries of the child.

Another good reason for a very careful review of the medical records is they often contain a number of inadmissible matters, which can cause their exclusion or at a minimum the striking of the offensive information. My suggestion is to tab one copy of the records for your objections and to have another copy, with redactions already done, ready to be offered into evidence. This assures an even flow to the trial, if such is your desire, and also enables you to control the redaction method. Although a general knowledge of SBS can be obtained by reading articles and the publications cited herein, an expert should be retained at an early stage. The expert should be a physician well versed in child abuse issues, preferably a forensic pathologist, who can assist you in deciphering the medical records as well as preparing for cross examination of the prosecution’s experts, who you can be assured will be hostile to your position. In my research I quickly discovered the “professional witnesses” and proponents of SBS diagnosis are strident in their beliefs, often refusing to budge on their diagnosis as opposed to the general treating physicians who are more likely to give way on the smaller points and be more noncommital.

Without question it is necessary to obtain as much information as possible on the investigation done by law enforcement. Police reports are a gold mine of reasonable doubt, particularly in the area of medical evidence. Just as the police officer can be relied on to ask leading questions in attempting to obtain a confession, frequently they also ask the physicians leading questions in establishing chronologies and determining suspects. As is discussed below, the chronology is extremely important in determining who was present during the “window of opportunity” for the alleged abuse.

In addition to the reports and other paperwork generated by the police and investigating officers, the files of the Child Welfare agencies are fruitful areas to dig. While they often vigorously resist all efforts to obtain the files, my experience has been judges often order these turned over. Watch carefully for redactions done by the department “in house”. One set of papers I examined in another alleged child abuse case had what was supposedly the name of an anonymous tipster redacted by drawing over it with a black marker. When I held the paper to the light the sentence in fact had read “(My client’s name here) immediately called law enforcement upon learning of this incident.”

One important piece of evidence that is often overlooked but can be vital is the call for emergency assistance to the police or medical officials, if any such call was made or recorded. It is important to obtain a copy of this tape early in the process as many law enforcement agencies routinely tape over these after a few months.

Another area which is becoming extremely productive is research on the internet. A partial listing of helpful sites accompanies this article. They are valuable in providing background information as well as in locating articles of particular interest. Any experts which are identified as potential witnesses should be carefully researched in order to determine if they have published any papers or articles in the areas of expertise which may be employed at trial. These articles often provide material useful for impeachment or to “keep the expert honest”. Careful research may also provide other useful tidbits. In our case, one of the co-founders of a Shaken Baby Syndrome advocacy organization located in Ft. Worth, Texas, U.S.A., was identified as a potential witness. A search on the internet provided two articles about this woman, both of which refer to the fact that she and her husband were initially accused of shaking their baby, wrongfully accused as it turns out. While ultimately she was not called as a witness, can you imagine the concessions she would have had to make regarding flawed investigations and wrongful accusations?

Medical Information

Shaken Baby Syndrome is allegedly caused by the shearing of the axonal vessels in the brain when a child is shaken violently. The massive acceleration, deceleration and twisting of the brain tears these vessels and causes a subdural hematoma, or bleeding beneath the “covering” of the brain, the dura, but between the brain and skull. Many of the symptoms and long term effects are likely caused by the pressure and swelling associated with this bleeding. Babies have an increased risk for this type of injury due to their proportionally larger heads and weaker neck muscles. Some of the long term effects of SBS may include cerebral palsy, epilepsy, blindness, deafness, learning disorders, as well as a myriad of others.

According to most authorities, multi layered, bilateral retinal hemorrhages are almost exclusively caused by a severe shaking. These are readily visible to an opthamologist. While there are several other potential causes for retinal hemorrhages, such as automobile collisions and trauma during birth, as well as diseases such as leukemia, or diabetes, when these hemorrhages are multilayered and bilateral it is generally accepted that some form of trauma is the cause. The addition of a subdural hematoma virtually guarantees an allegation of child abuse, typically Shaken Baby Syndrome.

In some, but not all of the cases, there may also be cerebral edema, posterior rib fractures, and finger marks on the chest wall or around the shoulders. Neck and spine injuries are also found, although the percentage of cases which involve these are not known.

A ripe area for cross examination of the prosecution’s experts regards disagreements among the medical community as to specifics of SBS. The main reason for the differences in opinion are the limited number of studies which have been done on SBS, chiefly due to the nature of the injuries and the fact that the victims are unable to provide any information themselves.

A few of these disagreements concern:

1) Whether or not an impact is necessary for this injury or whether the shaking alone is sufficient;
2) What degree of force is necessary to cause these injuries;
3) How long it takes for symptoms to appear;

While a thorough cross examination will cover the disagreement as to whether or not an impact is necessary for SBS, as a practical matter I do not believe this disagreement alone will create a reasonable doubt in a jurors mind and address it only to make it clear to the jury that this issue is not as “cut and dried” as the prosecution would make it appear.

The issue of the degree of force required to cause the injuries is also unlikely to be productive by itself as the medical community is generally in agreement that the shaking must be of such a severity as to cause “a reasonable person to be aware of the danger....” The typical description offered by the medical professional is “[A]t one end of the spectrum the infant’s chin will touch their chest while at the other end the back of the head will touch their back.” It is important to note there are no studies of which I or the physicians I have spoken with are aware to demonstrate the precise degree of force required to produce either subdural hematomas or retinal hemorrhaging. It is also significant to note while retinal hemorrhages are present in a large percentage of the cases involving allegations of severe shaking they are not present on all of the cases. This would appear to be a fruitful area of doubt to explore with your expert.

From the defense perspective, the most productive area of disagreement among experts would likely be in the timing of onset of symptoms. By carefully studying the potential symptoms and questioning the persons associated with the child during the relevant time frame additional potential suspects may be identified as well as other potential non-intentional sources of trauma.

Almost without exception the experts will testify, at least in a case where the injuries are severe or death has occurred, that symptoms appear almost immediately. Upon initial review of a case the initial symptoms reported will likely be loss of consciousness or seizure activity, causing the person present with the child when this happens to be the most likely defendant. At first this may appear daunting, since as defense attorneys it is our job to open the “window of opportunity” as wide as possible, thereby creating more suspects who had contact with the child during the time the injury likely occurred.

Careful preparation and cross examination of the experts should reveal that by “onset of symptoms” they do not necessarily mean the most severe symptoms. In one of my cases, initial reports from police and medical records indicated the first symptom was a seizure at approximately 3:30 P.M.. After a thorough review of the records, careful questioning revealed the infant had in fact been unusually irritable since early that morning as well as showing changes in his sleeping patterns, which may have actually been loss of consciousness as opposed to “napping”. This opened the “window” from a matter of minutes during which only my client had contact with the injured infant, to more than eight hours and included at least two other adults as potential suspects.

Retinal hemorrhaging cannot be used to narrow the time frame for the injury with any degree of accuracy. Typically, the testimony of a pediatric opthamologist will be that retinal hemorrhages could not place time of injury any more exactly than a 72 hour period. Indeed, at least one article in a professional journal cautions against using these as an indicator of child abuse. See Tongue, Andrea C., M.D., “The Opthamologist’s Role in Diagnosing Child Abuse”, Opthamology, July 1991, Vol. 98, Number 7, pp.1009-1010, see also Duhaime, Ann-Christine, M.D., Cindy W. Christian, M.D., Lucy Balian Rorke, M..D., and Robert A. Zimmerman, M.D., “Nonaccidental Head Injury in Infants - The “Shaken Baby Syndrome”, The New England Journal of Medicine, June 18, 1998, Vol. 338, Number 25, pp. 1822-1829.

If multiple MRI’s were run, carefully check to determine whether the subdural hematoma is expanding or static. If expanding it generally indicates a more recent injury while one that is static points to an injury somewhat older.

There is also important statistical information regarding the identity of “shakers”.

In a study of 151 infants conducted in Colorado it was determined that males are most often the abusers. Biological fathers were implicated in 37% of the cases, boyfriends of the mother in 20.5%, female child care providers 17.3%, and mothers only 12.6% of the time. Regardless of which class your accused falls in, obviously the statistics will usually place them in a minority of cases. See Starling, Suzanne P., M.D., James R. Holden, MS, and Carole Jenny, M.D., MBA. “Abusive Head Trauma: The Relationship of Perpetrators to Their Victims,” Pediatrics, February 1995, Vol. 95, No. 2, 259-262.

Carefully watch for other potential causes of the medical problems and use your expert to evaluate other diagnoses. Several years ago, a case involving an Amish couple in Pennsylvania has garnered media attention.

Initially accused of shaking their baby to death, a well renowned physician and expert on Amish diseases now places the blame on a vitamin K deficiency combined with a rare liver disease. (See http://abcnews.go.com/sections/living/DailyNews/amishdeath000227.html). An excellent resource for discussions of other conditions which mirror SBS and of child abuse in general is a text entitled Child Abuse: Medical Diagnosis and Management by Robert M. Reece, M.D. and published by Williams & Wilkins. I ordered my copy from an online bookstore and would highly recommend it be an addition to the library of anyone who represents clients accused of child abuse or neglect.

Conclusion

While cases involving Shaken Baby Syndrome may appear at first to be hopeless, the defense attorney must remember this is a relatively new diagnosis with few studies having been performed. By a careful analysis of the medical records, some familiarity with the causes and symptoms of this condition, as well as a careful check of the chronology of events a successful defense can be waged.

Most Common Characteristics of Shaken Baby Syndrome Diagnosis

Most Common Presenting Complaints
Lethargy
Seizures
Decreased Muscle Tone
Decreased Appetite
Respiratory Distress
Vomiting
Irritability
Large Head at Four Months

Physical Examination Indicators
Retinal hemorrhaging
Respiratory distress/arrest - without presence of stridor or lower airway sounds, suggesting CNS origin
Significant changes in head circumference
Bulging anterior fontanelle
Changes in vital signs
Ear lobe petechia - bruising includes adjacent scalp
Shoulder/neck bruises
Bruising in non-ambulatory children
Grasp bruises
Long bone metaphyseal fractures: chip, bucket handle, diaphyseal
Arm/leg fractures
Neck/spine injuries

This information found at
http://www.capcenter.org/check.html

List of helpful websites
www.sbsdefense.com
www.medline.com
www.neuro.harvard.edu
www.homestead.com
www.drkoop.com
www.healthanswers.com
www.shakenbaby.com
This site not only has useful information, but also a section where the audiotapes from the Second National Conference on Shaken Baby Syndrome held in September, 1998 can be ordered. While extremely pro-prosecution, the tapes are a treasure trove both as to content and as to what you can expect from the State and their experts.
www.webster.state.nh.us/dhhs/ohm/iasbs.html
www.capcenter.org
www.dontshake.com

Author’s Biography

Robert D. Bennett
Law Office of Robert D. Bennett & Associates, P.C.
102 Buffalo St.
Gilmer, Texas 75644
(903) 843-4660 Voice
(903) 843-3031 Fax
rbennett@etex.net
www.bennettlawoffice.org

Robert D. Bennett is a trial attorney in the United States, frequently called on to consult on trials involving allegations of Shaken Baby Syndrome. He did his undergraduate work at Northwestern State University in Louisiana before being selected to enter Baylor Law School in Waco, Texas. After receiving his Juris Doctorate in 1992, he began work in the areas of criminal defense, personal injury, and general civil litigation. Bennett is a frequent lecturer at Continuing Legal Education Seminars and has published articles and papers on a variety of legal subjects. His work has enabled him to become involved in cases across the United States as well as in London, U.K.