The Michigan Supreme Court Unanimously Overturned Leo Ackley’s Shaken Baby Syndrome Conviction in 2015. Image source: Battle Creek Enquirer.
Brian Shilhavy
Editor, Health Impact News
The University of Michigan’s Innocence Clinic, part of the University’s law school, has just been awarded $250,000 to fight wrongful shaken baby syndrome convictions. The Associated Press is reporting that the grant came from the Department of Justice.
NPR Radio in Michigan reports that attorneys with the Innocence Clinic already helped exonerate one person in a shaken baby syndrome case. In 2010, Julie Baumer was retried and found not guilty of abusing her infant nephew.
In 2015, the Michigan Supreme Court unanimously overturned a murder conviction in a shaken baby syndrome case. The court found that Leo Ackley’s defense attorney did not properly challenge the conviction with evidence that contradicts the science of shaken baby syndrome, and that the prosecutor produced no witness that Ackley was abusive.
The Assistant Director of the Michigan Innocence Clinic, Imran Syed, stated:
So these shaken baby syndrome cases really appear to be in that category of shifting science, where juries at trial were told things that seemed uncontroversial. But really there’s a lot of controversy involved.
And really the most important thing, at least from our perspective as lawyers, isn’t who’s right or wrong. It’s did both sides get aired out in trial? Because our [state] supreme court ruled last year that in an SBS case, both sides have the right to present their side of the debate, and let the jury decide who they believe is more credible: was it an accident, or was it intentional abuse?
And in the vast majority of these cases that we look at, there are no defense experts. The jury only hears one side of the case. (Source.)
Shaken Baby Syndrome Science Credibility Increasingly being Challenged in Courts
The University of Michigan’s interest in retrying wrongful shaken baby syndrome convictions follows what is also happening in many other states, where judges are increasingly being confronted with the lack of evidence to support the shaken baby syndrome diagnosis, and that there are other valid medical reasons for childhood injuries that are not the result of parental or caretaker abuse.
In September 2015, The University of Utah stated:
September 15, 2015, Professor Carissa Hessick was interviewed by Fox13 News about the controversy surrounding the changing diagnosis of shaken baby syndrome and the impacts on prosecutions.
‘Shaken Baby Syndrome has become very controversial in the legal field,’ said Carissa Byrne Hassick, a law professor at the University of Utah.
‘There’s no doubt that child abuse is a real problem in this country,’ Hassick explained. ‘But it’s also pretty clear, however, the experts who were originally being advised, they’ve since come to the conclusion that there’s a lot more at play here than originally thought.’ [sic]
And in May, 2016 the West Virginia University reported that:
Hampshire County, West Virginia, native Jeremiah Mongold is a free man today after serving 11 years of a 40-year sentence for the death of his stepdaughter thanks to the West Virginia Innocence Project at the West Virginia University College of Law.
In June of 2016, Chief Justice of the Massachusetts Supreme Court, Ralph Gants, ordered a new trial on a shaken baby syndrome conviction that was based on the testimony of a doctor, a “Child Abuse Specialist,” Dr. Alice Newton. In so doing, Chief Justice Gants gave extensive advice to attorneys on how to fight against shaken baby syndrome convictions.
In one footnote alone, Gants spent 400 words describing numerous scholarly articles that cast doubt on the diagnosis.
‘A defense expert could have assisted a competent defense attorney in mounting a significant challenge at trial on cross-examination by identifying the methodological shortcomings of the studies they cited,’
Gants wrote.
‘Other attorneys who have successfully staved off a shaken-baby conviction saw the ruling as significant.’
‘The fact that the court is saying that there is a huge debate in the medical and legal communities on this theory of shaken baby syndrome is important,’ said Melinda Thompson, one of McCarthy’s attorneys.
‘And the debate is far from over.’ (Source)
New Pediatric “Child Abuse Specialists” Need to Find Child Abuse to Justify Their Jobs?
In 2014, the Illinois-based Family Defense Center published a two-year research and writing project “Medical Ethics Concerns in Child Abuse Investigations.”
The study came to the following conclusions:
1. The duty of physicians not to become law enforcement officers or to engage in interrogations is violated by practices under which children are detained at hospitals while medical staff (child abuse pediatricians or social worker under their direction) interrogate parents using police-type tactics that have no place in a medical treatment context (Discussion Section I).
2. After a Hotline call has been made, parents’ decision-making as to their children’s medical care and their access to their child may be impaired by misplaced assumptions about parental responsibility for suspected child abuse. This impairment deprives children of their rights to have their parents make essential health care decisions on their behalves. (Discussion Sections II and VI.) In addition, doctors have an ethical duty to protect the child’s familial relationships. If physicians become advocates or willing partners in state child protection actions seeking restricted contact between parents and their children or the removal of a child from her parents, they are acting contrary to medical ethical principles recognizing the importance of “family-centered care” to children. (Discussion Section VI.)
3. The development of the child abuse pediatrics subspecialty, which was recognized by the American Board of Pediatrics in 2009, has led to the child abuse pediatrician becoming the lead voice with child protection agencies in their determination of whether they believe child abuse occurred and parental access to children should be restricted. The idea that the child abuse pediatrician’s has greater expertise than other subspecialists has been more broadly accepted than is justified, especially if the child abuse pediatrician fails to fully consult with subspecialists in forming her abuse conclusions. (Discussion Section III, VIII.)
4. As a result of the development of the child abuse pediatrics specialty, treating physicians and other doctors increasingly are pressed to give deference to opinions of the child abuse pediatrician, and they appear to be succumbing to that pressure in large numbers. This deference leads to economic and other benefits for treating doctors, but reduces the reliance on physicians who have potentially important information that supports the child and family relationship. Deference, to the exclusion of other opinions, harms the interests of children and families and reduces the quality of information considered by the child protection system in reaching a fair determination of whether child abuse has occurred. (Discussion Section IV.)
5. The rights to privacy and confidentiality of medical information are not supposed to be lost as a result of child abuse reporting, though current practices appear to assume a right to share a child’s confidential medical information may be shared with state and local authorities and with forensic evaluators without parental consent whenever a child abuse report has been made. This overbroad sharing of information beyond the Hotline call itself is a potentially serious breach of medical ethics (Discussion Section V).
6. Physicians and medical institutions who hold contracts with child protection agencies have a duty to notify parents of children who are being evaluated for child abuse as to these third-party contractual relationships. When parents are not informed of the role of the child abuse pediatrician, or given the informed rights to participate or decline to participate in the child abuse pediatrician’s assessment of the Hotline call, including the right to refuse consent to access to records, medical ethics requirements of disclosure and informed consent are violated. (Discussion Section VII.)
7. In arriving at medical opinions in connection with legal proceedings, physicians have ethical duties to be honest, objective, independent and guided by current scientific thought. These duties encompass recognition of the limits of the physician’s expertise, the need to consult with other specialists, a duty to be objective rather than an advocate for a particular outcome, and a duty to maintain a reasonable caseload. The expertise of other disciplines such as orthopedics to the determination of child abuse is discussed at some length. If a child abuse pediatrician strays from his duties to be objective and sets himself up as the superior doctor whose opinion is the sole opinion the child protection system needs to consider, he violates this central canon of medical ethics (Discussion Section VIII.)
8. Physicians also have an ethical responsibility to mitigate damage to families. Yet, in no case handled by the Center has this responsibility been met by the medical community; after exoneration, no family has received any offer of assistance or healing by any of the physicians who have caused them injury.
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