A Legal Door Opens to Retry All Shaken Baby Syndrome Convictions*
By Brian Shilhavy
As the medical profession continues to debate the merits of “Shaken baby syndrome” (SBS), the American judicial system is increasingly determining that the evidence against SBS is strong enough to prevent convictions in a court of law, where the standard is “reasonable doubt.”
As Christina England reports in the story below, Chief Justice Ralph Gants from the Supreme Judicial Court of Massachusetts just ruled this month that another SBS case in Massachusetts must be re-tried, because evidence contrary to the supposed “science” behind SBS was not presented at the trial. Judge Gants even went beyond just issuing a ruling to provide legal advice to attorneys seeking to represent their clients against SBS claims.
Since starting MedicalKidnap.com almost two years ago, where we provide a platform for families to tell their side of the story in cases where they disagree with medical professionals and have their children taken away by the State, many of the cases we have reported revolved around parents being accused by medical professionals of child abuse, such as SBS.
In many of the family stories we report, children are taken away from parents with no due process of law. The parents are accused by medical professionals or social workers of child abuse, but no charges are ever brought against the parents in a court of law.
In these situations, terrorists, murderers, rapists, etc., all have more rights than parents, because they enter into the legal system where charges are brought against them, and they have their Constitutional rights to face charges, and defend themselves in a court of law.
This generally does not happen in family courts across the United States. (For more info, see: Does the State Ever Have a “Right” to Remove Children from a Home?)
With SBS charges, however, many parents have been charged by District Attorneys with crimes, and entered into the judicial system. As we have reported, a new paediatric sub-specialty, child abuse paediatrics, with the corresponding title of “Child Abuse Specialist,” came out around 2010. There are now over 300 of these doctors serving mostly in children’s hospitals across the country, functioning more like law enforcement officials than actual medical doctors, as their sole purpose is to find “child abuse” based on medical records.
Should doctors be given this much authority? Are they really trained in forensic evidence and criminal behaviour?
It would seem that the courts are increasingly saying “no,” since so much contradictory medical evidence exists, showing that there are legitimate medical conditions that can be misinterpreted as “child abuse,” and more and more of it is coming to light in the court room.
So now the question remains: if these parents have had their children removed illegally, and many of these parents have wrongly been convicted and incarcerated, should doctors who are responsible for these injustices be tried in a court of law for their crimes?
An important case was heard last year in the Ninth Circuit Court, which ruled that Dr. Claudia Wang, the medical director of UCLA’s Suspected Child Abuse and Negligence (SCAN) team, does not have immunity from civil lawsuits, may have set an important legal precedent. (Story here.)
Supreme Judicial Court of Massachusetts Calls for a New Trial in Shaken Baby Case
By Christina England
The late Archie Kalokerinos, M.D., once stated:
“I have no doubt that this ‘shaken baby’ business will eventually be recorded as one of the worst pages in the history of paediatrics. And the saddest part of it all concerns the fact that, while important doctors are busy collecting ‘evidence’ for the prosecution, vital issues that can save many lives are being not only ignored but destroyed with intense hostility.”
Sadly, Dr. Kalokerinos died in 2012, however, four years later, courts from around the world have at last begun to recognize that the diagnosis of Shaken baby syndrome is indeed “seriously flawed” and claim that the diagnosis needs to be investigated in more depth.
One of the latest cases to be re-examined is the case of Oswelt Millien, a young father, who in 2015 was jailed for 4-5 years for causing permanent injuries to his six-month old daughter, Jahanna.
According to the official court report, Mr. Millien claimed that his daughter had, earlier that evening, accidentally fallen backwards from the couch where she had been sitting and landed on a wooden floor. However, the prosecution’s expert witness, Dr. Alice Newton, disagreed and stated that such injuries could not have been caused by a short fall injury alone. During her evidence she stated:
“The only injury . . . that could possibly be related to a short fall was the skull fracture, but that this was ‘very unlikely,’ because short falls are more likely to result in linear, rather than comminuted, fractures.”
Dr. Newton testified that the skull fracture had required “some type of blow,” such as “slamming the child against something.” She stated that one could not determine when a skull fracture had occurred simply by looking at the CT scan because it would heal in the same way as vertebrae.
Knowing that he was innocent and believing that Dr. Newton’s evidence was incorrect, the defendant, Mr. Millien, decided to file a motion for a new trial on the grounds of ineffective assistance of counsel. He claimed that his counsel was ineffective because they had failed to either consult or call an expert on the science of Shaken baby syndrome and that in failing to do so they had denied him a substantial ground of defence.
Mr. Millien is not the first to question the ‘so called’ expertise of Dr. Alice Newton. In fact, her evidence has been questioned in several cases including the cases of Daniel Green, Aisling Brady McCarthy, Justina Pelletier and Geoffrey Wilson.
Chief Justice Ralph Gants Orders a New Trial
Millien’s motion was carried and on June 4, 2016, the Boston Herald reported that Chief Justice Ralph Gants from the Supreme Judicial Court of Massachusetts had ordered a new trial.
The Herald stated:
The jury is still out on shaken baby syndrome, but the Supreme Judicial Court made one thing clear yesterday — the controversial diagnosis has flaws that any competent attorney should be able to pick apart.
‘In ordering a new trial for Oswelt Millien yesterday, the unanimous court didn’t throw out the science or chastise those doctors who stand by the embattled diagnosis. Instead, it told defence attorneys that there is a road map to reasonable doubt lined with experts, articles and scholarly treatises.
By vacating the defendant’s convictions in this case and ordering a new trial, we do not claim to have resolved the ongoing medical controversy as to how often the triad of symptoms of abusive head trauma are caused by accidental short falls or other medical causes,’ SJC Chief Justice Ralph Gants wrote.
‘We are simply recognizing that there is a vigorous debate on this subject.’
They concluded that in Millien’s case, Gants had gone the extra mile, giving attorneys a wealth of extra information that they could use in future cases and stated:
In one footnote alone, Gants spent 400 words describing numerous scholarly articles that cast doubt on the diagnosis.
‘A defence expert could have assisted a competent defence attorney in mounting a significant challenge at trial on cross-examination by identifying the methodological shortcomings of the studies they cited,’
‘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.’
This case is yet another example of the many cases currently being re-examined.
Shaken Baby Syndrome is Being Re-Examined
In June 2015, Iceland on Review published an article stating:
“The Icelandic Ministry of the Interior’s Appeal Committee has determined on Friday that the case of Sigurður Guðmundsson, who in 2003 was convicted for having caused an infant’s death by shaking him violently, is to be reopened.”
In July 2015, Michigan Radio announced:
“Lawyers with the Michigan Innocence Clinic say they believe at least two people have been wrongfully imprisoned for child abuse because they say medical experts misdiagnosed shaken baby syndrome.
Lawyers say they’ll likely take on a third case this summer and are considering an additional three cases as well, though they won’t yet discuss the details publicly.”
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.”
It appears that at last, professionals from around the world, are realizing that not all cases involving the “triad of injuries,” previously thought to be a definite diagnosis of Shaken baby syndrome, are necessarily caused by the parent or care-giver and are, at long last investigating the syndrome in more depth.