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#172 Wrongful Conviction: Junk Science - Shaken Baby Syndrome · Wrongful Conviction

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Speaker 1: At six pm, and the usual controlled cast of the
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Speaker 1: day is finally wound down. Most of your daylight hours
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Speaker 1: are filled with the sounds of giggling kids and, yes,
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Speaker 1: the occasional whining and tantrums. You've been a licensed childcare
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Speaker 1: provider for the past fifteen years and you run a
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Speaker 1: daycare center out of your house. You wave goodbye to
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Speaker 1: the last toddler to get picked up by his dad
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Speaker 1: from your doorway, then you head back inside. Your two
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Speaker 1: middle schoolers are sitting at the kitchen table doing their homework,
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Speaker 1: so you take advantage of the brief moment of quiet
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Speaker 1: to start getting dinner ready. But the quiet doesn't last
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Speaker 1: more than a few minutes. There's a knock on the door.
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Speaker 1: You're sure it's one of the kid's parents picking up
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Speaker 1: a missing toy, but your heart sinks to your stomach
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Speaker 1: when you see that it's the police. You quickly open
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Speaker 1: the door, worry that something might have happened to your husband,
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Speaker 1: who hasn't gotten home from work yet. Hi, there is
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Speaker 1: everything okay? You ask They ask you your name, and
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Speaker 1: they say, ma'am, do you run a daycare out of
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Speaker 1: this house?
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Speaker 2: Yes?
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Speaker 1: I do. What seems to be the problem you'll need
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Speaker 1: to come with us. What do you mean I can
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Speaker 1: right now. I'm getting dinner ready for my kids. Ma'am.
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Speaker 1: You don't understand. You need to turn around and put
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Speaker 1: your hands behind your back. You're under arrest. You'll feel
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Speaker 1: the cold handcuffs tighten around your wrists. What is this
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Speaker 1: all about. There's a child in your care name Maria.
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Speaker 1: You know who Maria is, ma'am. She died from brain
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Speaker 1: injuries after spending the day in your care. So I'm
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Speaker 1: gonna read you your rights. You're speechless, Maria, that little
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Speaker 1: girl who spent one session at your daycare months ago.
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Speaker 1: You can't compute, but you're a mom, and so you
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Speaker 1: leap into action for your kids. You don't want to
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Speaker 1: scare them, so you try to prevent your voice from
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Speaker 1: cracking as you call them over. You tell your fourteen
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Speaker 1: year old look after your little brother. Call your dad,
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Speaker 1: he'll be here soon. Tell him not to worry, and
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Speaker 1: you don't worry. This is all going to work out.
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Speaker 1: You put on a brave face for them, and you
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Speaker 1: try not to panic as one of the officers pushes
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Speaker 1: your head down in that classic move that leads a
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Speaker 1: suspect into the back of a police car. Your world
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Speaker 1: has turned upside down in an instant. As the police
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Speaker 1: car pulls away from your house and down the street
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Speaker 1: toward the county jail. You sit in jail before your
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Speaker 1: trial and replay the events of the day. You watch
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Speaker 1: Maria over and over again in your head. You were
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Speaker 1: sitting on the carpet helping one of the little boys
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Speaker 1: get a train rolling on a track when there was
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Speaker 1: a knock at the door. You answered it and you
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Speaker 1: saw a smiling baby in the arms of her mother.
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Speaker 1: This must be Maria, you said, smiling at the toddler.
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Speaker 1: You took Maria from her mother's arms and helped the
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Speaker 1: little girl wave goodbye with her tiny hand while her
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Speaker 1: mom pulled out of the driveway. Maria was happy and
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Speaker 1: playful all day until about noon. She started crying, and
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Speaker 1: you recognize that as the telltale sign of a tired baby.
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Speaker 1: You put her down for a nap, and a few
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Speaker 1: hours later Maria's mom came back. Maria was still sleeping.
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Speaker 1: You watched her pick Maria up from the crib, trying
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Speaker 1: not to wake her. Maria slept on her mom's shoulder
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Speaker 1: the whole way to the car. You watched as they
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Speaker 1: pulled out of the driveway. That's everything you can remember
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Speaker 1: from that day, but that's not what happened. What you
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Speaker 1: didn't know is that when Maria and her mother pulled
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Speaker 1: up to their home home, Maria was slumped over in
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Speaker 1: her car seat, her head almost in her lap, and
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Speaker 1: she'd thrown up all over herself. Maria wouldn't wake up,
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Speaker 1: so her mom called nine to one one and she
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Speaker 1: was rushed to the hospital. The doctor said that the
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Speaker 1: baby's brain was bleeding and swollen, and her blood sugar
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Speaker 1: was high. The doctors frantically worked on her, trying to
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Speaker 1: revive her, but eventually Maria was put on life support.
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Speaker 1: She died about a week later. Approximately two months after that,
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Speaker 1: the police showed up at your house and arrested you.
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Speaker 1: Sitting in your jail cell, you're paralyzed by the horror
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Speaker 1: of all this. One family lost their baby, and your
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Speaker 1: kids are at home wondering if their mother will be
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Speaker 1: around to watch them grow up. Now it's the day
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Speaker 1: of your trial. Your lawyer doesn't dispute that bleeding and
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Speaker 1: swelling in Maria's brain caused her death, but there was
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Speaker 1: no evidence that it was caused by anything you did.
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Speaker 1: There was no evidence whatsoever that you abused Maria in
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Speaker 1: any way. She didn't have any broken bones, no injuries
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Speaker 1: to her neck or spinal column or anything like that.
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Speaker 1: And there was, in fact another explanation for Maria's injuries.
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Speaker 1: When she had been admitted to the hospital, her blood
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Speaker 1: sugar level was four times higher than what was considered
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Speaker 1: to be normal, and so it was possible that Maria's
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Speaker 1: brain injuries may have been caused by an undiagnosed metabolic
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Speaker 1: disorder like diabetes. But when the prosecution makes its case,
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Speaker 1: the pain and mystery around Maria's death is sharpened to
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Speaker 1: a fine point. A child abused specialist takes the stand
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Speaker 1: and tells the jury that Maria had bleeding and swelling
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Speaker 1: in her brain and bleeding behind her eyes. Let me
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Speaker 1: make it clear, the expert witness said, these injuries mean
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Speaker 1: that Maria incurred physical abuse associated with trauma to the head.
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Speaker 1: There is no other way these injuries could have occurred.
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Speaker 1: You sit there next to your defense attorney and your
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Speaker 1: heart starts beating fast, your sweating. You know what she's
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Speaker 1: saying can't be true. You've been watching kids for your
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Speaker 1: entire adult life. You would never you have never hurt
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Speaker 1: a child, and yet you know that if you were
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Speaker 1: a member of that jury and you heard this testimony
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Speaker 1: from this doctor, that you would probably believe it too.
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Speaker 1: You would also want to be able to hold someone
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Speaker 1: accountable for the death of this innocent child. When the
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Speaker 1: jury goes into their deliberations, you're not just worried about
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Speaker 1: the outcome of your trial. Your heart is also broken
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Speaker 1: for Maria's family. You know you'll never be able to
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Speaker 1: wrap your head around their grief, but you also know
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Speaker 1: that putting an innocent person in prison won't bring their
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Speaker 1: baby back. After just two days of deliberating, the jury
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Speaker 1: comes back with a guilty verdict. You bury your face
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Speaker 1: in your hands as the verdict has read. At your sentencing,
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Speaker 1: the prosecution reads letters from Maria's family. Her mother had
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Speaker 1: addressed one of them to you. It said, you killed
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Speaker 1: my baby? Why? Why did you do this? I beg
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Speaker 1: this coord to give you the maximum sentence possible. You
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Speaker 1: are sentenced to fifteen years in prison for manslaughter. The
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Speaker 1: story you just heard is loosely based on Stephanie Spurgeon's
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Speaker 1: wrongful conviction in two thousand and eight. Innocent people have
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Speaker 1: been convicted based on medical testimony which claims that three
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Speaker 1: symptoms bleeding of the brain, swelling of the brain, and
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Speaker 1: bleeding behind the eyes, indicates a form of child abuse
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Speaker 1: referred to as shaken baby syndrome, but this medical testimony
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Speaker 1: has proven to be problematic. With the help of the
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Speaker 1: Innocence Project and the Exoneration Project from the University of
8:18
Speaker 1: Chicago Law School, the evidence in Stephanie's case was re
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Speaker 1: examined and she was released from prison in August twenty twenty.
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Speaker 1: But many others are not as lucky and continue to
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Speaker 1: serve sentences for crimes they did not commit. There's nothing
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Speaker 1: more devastating than the death of a child. When a
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Speaker 1: tragedy like that occurs, it's natural to want answers, how
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Speaker 1: did this happen, who should we hold accountable for this,
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Speaker 1: and what could have been done to prevent it. What
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Speaker 1: might be most difficult for juris to accept is that
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Speaker 1: the death was completely accidental, that there was nothing anyone
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Speaker 1: did to cause it and nothing could have been done
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Speaker 1: to stop it. I'm Josh Dubin, civil rights and criminal
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Speaker 1: defense attorney, an Innocent ambassador to the Innocence Project in
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Speaker 1: New York. Today on Wrongful conviction junk science. We'll explore
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Speaker 1: how what's known as shaken baby syndrome has been used
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Speaker 1: to falsely implicate people in crimes that they did not commit.
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Speaker 1: It turns out that shaken baby syndrome isn't a fool
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Speaker 1: proof diagnosis. There are many other causes for the symptoms
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Speaker 1: of shaken baby syndrome that do not arise from intentionally
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Speaker 1: shaking a baby. In nineteen sixty nine, two scientists put
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Speaker 1: a live reciss monkey under anesthesia and strapped it to
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Speaker 1: a chair made of fiberglass. The fiberglass chair was then
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Speaker 1: attached to roller skate wheels. When the tiny car acceler
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Speaker 1: rated and then decelerated quickly, the passenger's head that is,
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Speaker 1: the monkey's head, was flung backwards then quickly snapped forward.
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Speaker 1: Scientists wanted to study the effect of whiplash during a
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Speaker 1: car crash, so the tiny car with the little monkey
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Speaker 1: passenger was designed to mimic the movement of a car
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Speaker 1: during a rear end collision. Of the fifty monkeys that
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Speaker 1: took a ride in the whiplash car, nineteen of them
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Speaker 1: sustained a concussion. The study proved that direct impact from
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Speaker 1: a hard surface to the head isn't necessary to cause
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Speaker 1: traumatic brain injuries. The human brain can be injured just
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Speaker 1: from a head being violently jerked back and forth, causing
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Speaker 1: the brain to rattle around inside the skull. This study
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Speaker 1: had important repercussions for car safety. It's part of the
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Speaker 1: reason why cars are supposed to have headrests to prevent
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Speaker 1: brain injuries due to whiplash during an accident. But this
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Speaker 1: study also interested a British pediatric neurosurgeon named Norman Guthkelch. Now,
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Speaker 1: Doctor guth Kelch had been noticing infants coming into his
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Speaker 1: office with no outward signs of abuse, no bruising, no
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Speaker 1: broken bones, but they had bleeding around their brain. He
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Speaker 1: wondered if these children had been getting whiplash not from
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Speaker 1: a car crash, but from their parents and caregivers. Now,
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Speaker 1: at the time in Northern England, shaking babies was a
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Speaker 1: socially acceptable way of calming, quieting, and even disciplining a
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Speaker 1: fussy baby. In fact, when doctor Guthkelch saw children with
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Speaker 1: bleeding around their brain, he asked parents if they sometimes
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Speaker 1: shook their child. Many parents readily confess They would say yes,
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Speaker 1: Johnny wouldn't stop crying, so I gave him a good shaking.
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Speaker 1: Doctor Guthkelch suspected that shaking an infant mimicked the motion
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Speaker 1: of whiplash, and so he wrote a short two page paper.
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Speaker 1: It said that trauma to a baby's brain, even when
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Speaker 1: no other signs of physical abuse were present, may in
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Speaker 1: fact be caused by violent shaking. Doctor guth Kelch never
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Speaker 1: claimed that there might not be other causes of bleeding
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Speaker 1: around the brain. He simply hypothesized that shaking might be
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Speaker 1: the cause of it. His hope was that doctors who
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Speaker 1: read his study would help teach parents to handle their
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Speaker 1: infants more gently to avoid accidental harm. After doctor goth
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Speaker 1: Kelch's article was published, other doctors continue to research this issue.
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Speaker 1: They found that three symptoms in particular were associated with
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Speaker 1: shaking a baby. These symptoms were subdural hematoma, retinal hemorrhage,
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Speaker 1: and cerebral edema that is bleeding around the brain, bleeding
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Speaker 1: behind the eyes, and brain swelling. These thymptoms became known
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Speaker 1: as the quote classic triad, the signs that are said
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Speaker 1: to be an indicator of shaken baby syndrome. The problem
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Speaker 1: is that these three symptoms became synonymous with shaken baby
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Speaker 1: syndrome if these three symptoms were present, it was thought
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Speaker 1: that a parent or caretaker must have intentionally shaken their infant,
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Speaker 1: and so when parents showed up to the hospital with
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Speaker 1: a sick child who exhibited some or all of the
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Speaker 1: symptoms of the triad, their children were taken away from them.
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Speaker 1: The parents were put on trial, and they were sometimes
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Speaker 1: convicted of abusing or even killing their own child. As
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Speaker 1: parents started to be accused of child abuse based solely
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Speaker 1: on the hypothesis of shaken baby syndrome, doctor Gothkelch knew
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Speaker 1: he had to do something He never meant for his
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Speaker 1: short paper to be used as a tool for prosecution.
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Speaker 1: The whole point of his paper was to help parents,
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Speaker 1: not criminalize them. Doctor guth Kelch continued to fight for
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Speaker 1: wrongfully convicted parents and caregivers up until he died in
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Speaker 1: twenty sixteen at the ripe age of one hundred and
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Speaker 1: one years old.
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Speaker 2: No one was really suggesting that this should be a
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Speaker 2: mechanism for prosecuting anyone. They acknowledged, and you know, pretty
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Speaker 2: clearly articulated that what they were talking about was a
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Speaker 2: hypothesis about why children might have these findings. But it
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Speaker 2: then started to be used as a paradigm for prosecution,
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Speaker 2: and that's really where it runs into trouble because instead
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Speaker 2: of continuing to research and look for answers, physicians and
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Speaker 2: prosecutors started to accept it without you know, looking further
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Speaker 2: into the kinds of claims that experts were making about it.
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Speaker 1: Today on our show, we're speaking with Kate Judson. Kate
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Speaker 1: is the executive director for the Center Integrity and Forensic Sciences,
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Speaker 1: and she was one of the lawyers who represented Stephanie Spurgeon,
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Speaker 1: whose story we discussed at the beginning of our show.
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Speaker 1: So to start tell us about what we should understand
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Speaker 1: about the difference between shaking baby syndrome as a hypothesis
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Speaker 1: rather than as a diagnosis.
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Speaker 2: I think there are a lot of ways in which
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Speaker 2: it differs significantly from other medical diagnoses. So child abuse
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Speaker 2: and particularly shaken baby syndrome is much more a determination
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Speaker 2: of etiology of how somebody got the medical findings than
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Speaker 2: the medical findings themselves. So the kinds of findings that
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Speaker 2: are often attributed to child abuse in shaken baby syndrome
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Speaker 2: and abusive head trauma cases can be due to trauma,
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Speaker 2: but it isn't always, So there are medical conditions that
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Speaker 2: can cause these kinds of medical findings as well, and
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Speaker 2: so sometimes the evidence of actual innocence is new medical
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Speaker 2: opinion that support the idea that the child had a
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Speaker 2: disease or another kind of condition that led to their
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Speaker 2: medical findings, rather than any kind of trauma or abuse.
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Speaker 1: So let's back off for a second to when this
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Speaker 1: first started to be used at trial. How did this
16:15
Speaker 1: diagnosis become something that prosecutors were able to weaponize against defendants.
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Speaker 2: Part of what makes it seductive if you're trying to
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Speaker 2: protect children and punish wrongdoing is that it seemed at
16:33
Speaker 2: the time very definitive. Physicians were saying, if a child
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Speaker 2: has this set of injuries, they have been abused, and
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Speaker 2: that abuse consisted of shaking, and we know that, and
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Speaker 2: there are no exceptions, or very very few exceptions. I mean,
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Speaker 2: in fact, at the time, there are plenty of transcripts
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Speaker 2: available where physicians said nothing else causes this, right, and
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Speaker 2: so it gives a very clear and definitive answer. Has
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Speaker 2: to wonder, in the face of such an answer, what
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Speaker 2: happened to a child who died, who previously would have
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Speaker 2: no explanation for their death. It's definitive, it's clear and frankly,
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Speaker 2: really effective in court, often resulting in a conviction almost
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Speaker 2: all the time. So I think that it gave people
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Speaker 2: who were involved in the criminal legal system the impression
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Speaker 2: that they were successfully locking up people who were dangerous
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Speaker 2: who had murdered a child. And it turns out it's
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Speaker 2: not that straightforward.
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Speaker 1: So tell us more about other ways a child can
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Speaker 1: come to have the same kind of symptoms or the
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Speaker 1: same sort of trauma that are usually associated with shaking
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Speaker 1: baby syndrome.
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Speaker 2: There are things like infection, serious infection, genetic disorder, problems
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Speaker 2: with blood clotting, certain kinds of tumors, certain kinds of
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Speaker 2: blood cloths, you know, like a pediatric stroke. There are
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Speaker 2: cases where the medical findings are thought to have arisen
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Speaker 2: after events like choking. But what really started to come
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Speaker 2: to light in twenty sixteen there was a report done
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Speaker 2: by the Swedish government that looked at medical literature that
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Speaker 2: discussed you know what is colloquially called the triad that
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Speaker 2: the combination of subdralhemotoma, rental hemorrhage, and cerebral edema, and
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Speaker 2: looked at children who were diagnosed as and studies of
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Speaker 2: children who are diagnosed as being abused based on those findings.
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Speaker 2: But they found was that the data was not there,
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Speaker 2: that it was very incomplete, and they recommended that the
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Speaker 2: Swedish government no longer prosecute people under that paradigm. And
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Speaker 2: the reaction that that got from, you know, child advocates
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Speaker 2: and child abuset pediatricians was simply to attack the people
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Speaker 2: who did the report. You know, there's been a real
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Speaker 2: lack of serious engagement around the failings in the literature
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Speaker 2: that everybody knows are there, and so that is really
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Speaker 2: a shame and that's not how science progresses, and that's
19:12
Speaker 2: not how people get fair trials. People who who are
19:18
Speaker 2: admirably concerned about protecting children have unfortunately written things like
19:23
Speaker 2: editorials in journals, engaging in personal attacks instead of trying
19:29
Speaker 2: to figure out how to best approach these kinds of cases.
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Speaker 1: And that's part of what makes studying and being critical
19:38
Speaker 1: of the shaken baby hypothesis really difficult. People often assume
19:42
Speaker 1: that critics of shaking baby syndrome are trying to side
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Speaker 1: with child abusers, and of course that's not the case. Researchers, doctors,
19:51
Speaker 1: lawyers who are critical of shaking baby syndrome are just
19:55
Speaker 1: trying to make sure that people don't get accused of
19:59
Speaker 1: crime they didn't commit based on misleading evidence. And on
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Speaker 1: the other side of this battle, there are well meaning
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Speaker 1: people who are trying to protect children from abuse. I
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Speaker 1: know that expert witnesses and cases involving child abuse are
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Speaker 1: often doctors, So tell us more about that. Who are
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Speaker 1: the doctors who testify during these cases for the prosecution
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Speaker 1: as experts?
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Speaker 2: So there are different kinds of physicians. They're not always
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Speaker 2: child abuse pediatricians, but they frequently are child abuse pediatricians.
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Speaker 2: There are about three hundred child abuse pediatricians in the
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Speaker 2: United States. It's a new subspecialty. I believe the first
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Speaker 2: child abuse pediatricians were board certified in twenty eleven, so
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Speaker 2: it's quite new. So their job is to evaluate children
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Speaker 2: in hospitals or clinics for child abuse and yes, to
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Speaker 2: testify in cases or to create reports for law enforcement
20:56
Speaker 2: agencies for the courts.
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Speaker 1: So that's interesting. I guess talking about biases, I could
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Speaker 1: imagine that someone who's trained to look for child abuse
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Speaker 1: could just start seeing abuse everywhere. It's what they know,
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Speaker 1: it's what they study, it's what they look for. They think,
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Speaker 1: you know, this is a symptom that comes up with
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Speaker 1: people who are victims of abuse, so it must be abused.
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Speaker 1: It's you know, becomes difficult to see outside of your
21:21
Speaker 1: own tunnel vision. And so when a medical specialty is
21:25
Speaker 1: geared directly towards one conclusion or looking out for one thing,
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Speaker 1: of course, even with the best of intentions, it could
21:33
Speaker 1: be easy for these doctors to get tunnel vision right.
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Speaker 2: That's a real concern when analysts are, for example, embedded
21:44
Speaker 2: with law enforcement. When the crime lab is part of
21:46
Speaker 2: the police department, for example, we see this role affects bias.
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Speaker 2: Analysts start to see themselves as part of the law
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Speaker 2: enforcement team rather than as an objective, independent scientist. But
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Speaker 2: the same issue was present when child abuse pediatricians are
22:02
Speaker 2: part of a child abuse team, especially when those teams
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Speaker 2: involve police and investigators and prosecutors and don't involve people,
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Speaker 2: for example, from the defense bar. And since they're all
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Speaker 2: human beings, it's not unreasonable to say that the same
22:19
Speaker 2: concerns we have about analysts housed within a police station
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Speaker 2: or who work very closely with police and prosecutors, that
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Speaker 2: other kinds of experts might be subject to those same biases.
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Speaker 1: I think another reason that there are so many wrongful
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Speaker 1: convictions when people are accused of abuse is that everybody involved, jurors,
22:38
Speaker 1: the lawyers, the doctors, they don't want to get it
22:41
Speaker 1: wrong because, let's just face it, setting a potential child
22:46
Speaker 1: abuse are free is a scary proposition. The stakes are
22:49
Speaker 1: very high in these cases.
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Speaker 2: So really often I hear people respond to these concerns,
22:58
Speaker 2: particularly people who are who are working in kind of
23:01
Speaker 2: the child abuse field, respond to these concerns about wrongful
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Speaker 2: convictions by saying, well, we just want to air on
23:07
Speaker 2: the side of the child, right, But in these kinds
23:10
Speaker 2: of cases there's really no way to do that. Any
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Speaker 2: error is harmful. This idea that you can air safely
23:17
Speaker 2: on the side of the child is a false one.
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Speaker 2: And that's because if you get this wrong. If a
23:22
Speaker 2: child is being diagnosed as or being determined to have
23:26
Speaker 2: been abused and they haven't been, a couple of things
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Speaker 2: can happen. One is that a child can be deprived
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Speaker 2: of a loving home and separated from loving parents and caregivers,
23:38
Speaker 2: and studies have shown over and over and over again
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Speaker 2: that separating children from their family is traumatic. It is
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Speaker 2: sometimes a necessary harm, but it is always harmful.
23:50
Speaker 1: Even from people who are just accused of child abuse
23:55
Speaker 1: and they don't get convicted but just have to go
23:58
Speaker 1: through the trial, that in itself can be so damaging
24:04
Speaker 1: to children and their families.
24:07
Speaker 2: I mean it's anecdotal, but I pretty frequently hear from
24:10
Speaker 2: families who say, like, we're really grateful that nobody in
24:13
Speaker 2: our family was convicted, but our kids are still suffering
24:16
Speaker 2: all kinds of harm and problems from the trauma that
24:18
Speaker 2: was inflicted upon them just from even a brief separation.
24:23
Speaker 2: So there may very well be good reason reasons to
24:27
Speaker 2: separate families, But what we can't do is go to
24:31
Speaker 2: court and say that the abuse is more definitive than
24:35
Speaker 2: the science actually supports, if that makes sense. The other
24:38
Speaker 2: problem is that when these cases are not medically investigated carefully,
24:43
Speaker 2: there is the chance that a child will be classified
24:45
Speaker 2: as having been abused when they actually have a serious illness,
24:50
Speaker 2: and that is also really problematic can potentially lead to
24:53
Speaker 2: more harm or even death because of that misdiagnosis.
24:57
Speaker 1: It seems almost unlikely that evidence in child abuse cases
25:02
Speaker 1: can be similar to other forensic disciplines that we've talked
25:05
Speaker 1: about on our show. But it turns out that the
25:08
Speaker 1: same tactics use to convict people based on faulty pattern
25:13
Speaker 1: matching evidence, for example, is really the same thing we're
25:17
Speaker 1: dealing with here. In instances of alleged child abuse.
25:22
Speaker 2: The kind of biases that we see in other kinds
25:25
Speaker 2: of forensic sciences are certainly present here. And because there
25:30
Speaker 2: is no gold standard criteria, no simple or single test
25:35
Speaker 2: that allows anybody to make a diagnosis of child abuse,
25:38
Speaker 2: you end up having to fall back on so much
25:40
Speaker 2: subjectivity of the person examining the child and looking at
25:45
Speaker 2: the facts, and what we know from pattern matching disciplines
25:48
Speaker 2: in particular, but also things like ourson investigation, is that
25:52
Speaker 2: the more subjectivity that is introduced into the system, the
25:55
Speaker 2: less reliable your result can be. Sometimes when you look
25:59
Speaker 2: at the breakdown of cases where people get wrongfully convicted
26:02
Speaker 2: based on faulty forensic science, and a majority of them,
26:06
Speaker 2: part of the faulty forensic science is that the expert
26:09
Speaker 2: spoke to the jury with more certainty than the science warranted.
26:13
Speaker 2: The same is true in cases with medical testimony. So
26:16
Speaker 2: when a doctor says that a fracture or a subdural
26:20
Speaker 2: hematoma or a retinal hemorrhage can only be caused by
26:24
Speaker 2: child abuse, and there's no other explanation that is definitive.
26:29
Speaker 2: It is convincing that is stated with more certainty than
26:33
Speaker 2: the science can support, and that can certainly lead to
26:36
Speaker 2: an unfair trial and a wrongful conviction.
26:39
Speaker 1: So, in your opinion, when something as tragic as a
26:43
Speaker 1: baby dying happens, what can we do to make sure
26:47
Speaker 1: that the cause of death is determined correctly so that
26:54
Speaker 1: parents and caretakers stop being wrongfully accused based on this
26:59
Speaker 1: shaken baby high ypothesis.
27:01
Speaker 2: There really should be really rigorous testing in all of
27:04
Speaker 2: these cases, and not every case out there gets the
27:09
Speaker 2: benefit of really careful, comprehensive testing. There's actually kind of
27:14
Speaker 2: a famous case that a district attorney from Queen's has
27:17
Speaker 2: used in a bunch of presentations where there was a
27:20
Speaker 2: videotaped fall. A child fell at a mall and off
27:25
Speaker 2: of just a really short fall off of a piece
27:27
Speaker 2: of playground equipment and later died, and investigators embarked upon
27:32
Speaker 2: an extremely complex and comprehensive medical evaluation, and when they
27:37
Speaker 2: did that, they found that there were potentially some blood
27:40
Speaker 2: disorders lurking within the family. And while the child who
27:43
Speaker 2: died never definitively tested positive for a bleeding disorder. Her
27:47
Speaker 2: parents were carrying genes that suggested that she may have
27:51
Speaker 2: had one that may have contributed to her death. But
27:54
Speaker 2: I have to tell you that it's uncommon that that
27:57
Speaker 2: kind of testing is done. I have seen it become
28:00
Speaker 2: more common, and hopefully it will continue to become more common.
28:02
Speaker 2: But that's just a great example of a really thorough
28:06
Speaker 2: evaluation clarifying that a deceased child died because of a
28:11
Speaker 2: tragic accident, not because anybody hurt her.
28:14
Speaker 1: When I think about people convicted based on this type
28:19
Speaker 1: of evidence, it's usually a parent that we're talking about.
28:23
Speaker 1: Someone who has just lost their child, is going through
28:27
Speaker 1: this unimaginable tragedy, and then to be accused of being
28:33
Speaker 1: the one that actually inflicted this harm. It's a lot
28:37
Speaker 1: to wrap your head around. It's like too much to bear.
28:41
Speaker 2: For parents who go through this. They have a double tragedy,
28:44
Speaker 2: right They have the loss of the life or health
28:49
Speaker 2: of their child, which is incredibly tragic, and then they
28:53
Speaker 2: have this prosecution, which threatens their freedom, often threatens their
28:58
Speaker 2: relationship with their other children. In some of these cases,
29:02
Speaker 2: parents might lose custody of other children in the family.
29:06
Speaker 2: It's horrifying.
29:08
Speaker 1: It's horrifying as a lawyer to it. It must be
29:12
Speaker 1: difficult to be watching this unfold.
29:15
Speaker 2: Yeah, it's an incredibly emotional situation. And in fact, there
29:18
Speaker 2: are some lawyers who find these cases so disturbing and
29:23
Speaker 2: disruptive that they do one and they never want to
29:26
Speaker 2: do another one. You do care about that happening. I mean,
29:29
Speaker 2: it's not easy. It's always difficult. They are very emotional,
29:34
Speaker 2: they are very upsetting. It is difficult to be there
29:38
Speaker 2: for someone who has gone through, like, like I said,
29:42
Speaker 2: this double tragedy, right where a child that you know
29:47
Speaker 2: that they loved and cared about is gone or very
29:51
Speaker 2: or were very different, and then they've they've been accused
29:54
Speaker 2: of this crime they didn't commit. It's it's it's terrible.
29:58
Speaker 2: I think the only reason why I feel compelled to
30:01
Speaker 2: keep doing it is that what has happened to these
30:06
Speaker 2: folks is wrong and someone has to help them and
30:11
Speaker 2: stand up for them. It's not an easy thing, but
30:14
Speaker 2: I think it's a necessary one.
30:21
Speaker 1: When I agreed to host this podcast, I set out
30:24
Speaker 1: to expose some of the many flaws that exist in
30:26
Speaker 1: our criminal justice system. Specifically, what I wanted to do
30:31
Speaker 1: was address what goes wrong when jurors are presented with
30:35
Speaker 1: what they are told as science but actually turns out
30:39
Speaker 1: to be well junk. The harms of junk science go
30:44
Speaker 1: beyond innocent people having to endure the unthinkable nightmare of
30:48
Speaker 1: being accused and convicted of crimes they did not commit.
30:52
Speaker 1: The consequences extend even further than those people having to
30:56
Speaker 1: endure the rawst and most cutting of human suffering, being
31:00
Speaker 1: torn from their life and locked in a cage. In
31:04
Speaker 1: addition to that human tragedy, junk science causes the moral
31:08
Speaker 1: fabric of our judicial system to wear and tear at
31:12
Speaker 1: the seams. It causes an entire institution of law and
31:17
Speaker 1: order and justice to be completely undermined. In examining the
31:23
Speaker 1: various disciplines of forensic science we've discussed this season, whether
31:28
Speaker 1: it was our sin or blood spatter, eyewitness identification, or,
31:33
Speaker 1: as in this episode, shaking baby syndrome, I knew it
31:36
Speaker 1: would be interesting and enlightening, but I never expected it
31:41
Speaker 1: to affect me in the profound manner that it has.
31:44
Speaker 1: I have been in turns dumbfounded, angry, saddened, and even outraged,
31:52
Speaker 1: a trial is supposed to be a search for the truth.
31:56
Speaker 1: The word science itself is defined as the study of
31:59
Speaker 1: the physical and natural world through observation and experiment. Our
32:06
Speaker 1: system of justice has been regarded as not perfect, but
32:10
Speaker 1: the best way to ensure that people who are accused
32:13
Speaker 1: of crimes get the fairest shake possible. So how is
32:17
Speaker 1: our system of justice veered so far off the tracks?
32:21
Speaker 1: How have we managed to bastardize and bludgeon What science means?
32:27
Speaker 1: I don't know if we can ever arrive at a
32:29
Speaker 1: clear answer. There are probably many explanations. One thing I
32:33
Speaker 1: do know is that when human beings get involved in
32:36
Speaker 1: any endeavor, we bring our own biases, or thirst for
32:41
Speaker 1: financial gain, or hunches and quirks into the equation, and
32:46
Speaker 1: in the process we sometimes create such a mess that
32:49
Speaker 1: it becomes difficult to untangle the hows and whys of
32:53
Speaker 1: it all. But I still manage to find hope and
32:58
Speaker 1: a way forward. And here's why. If you've ever been
33:02
Speaker 1: fortunate enough to meet someone that has spent time in
33:05
Speaker 1: prison for a crime they didn't commit, one thing becomes
33:08
Speaker 1: apparent very quickly. They are the embodiment of all that
33:14
Speaker 1: is soaring and remarkable about the human condition. They are
33:20
Speaker 1: a special combination of resilience, hope, forgiveness and strength. They
33:27
Speaker 1: are quite simply a force of nature. So I will
33:32
Speaker 1: continue to pour my energy, every cell in my body
33:37
Speaker 1: into helping those who are still behind bars for crimes
33:40
Speaker 1: they did not commit. I will fight to restore signs
33:44
Speaker 1: to its proper definition in our courtrooms. I am propelled
33:48
Speaker 1: by these men and women that represent the triumph of
33:51
Speaker 1: the human soul. To restore one's life and freedom is
33:57
Speaker 1: perhaps the highest service to your fellow human being. I
34:00
Speaker 1: can't even find the words to describe what it's like
34:05
Speaker 1: to walk someone out of a nightmare of a prison
34:09
Speaker 1: cell and into the bright light of freedom, to restore
34:13
Speaker 1: a life. The only way I can articulate it is that,
34:19
Speaker 1: aside from marrying my wife and the birth of my children,
34:23
Speaker 1: it is and always will be my most important contribution
34:28
Speaker 1: to my fellow human beings. There is nothing I have
34:32
Speaker 1: done in this life or could ever fathom doing, that
34:35
Speaker 1: can ever come close. No material gain, no drug, no drink,
34:42
Speaker 1: nothing at all that can approach the state of nirvana
34:47
Speaker 1: that consumes your soul when you have helped save a life.
34:52
Speaker 1: And I think that says a lot about who we are.
34:55
Speaker 1: At our essence. We are meant to be of service
34:58
Speaker 1: to one another, to heal each other, to restore each other.
35:03
Speaker 1: Not a bad message, if I do say so myself,
35:06
Speaker 1: at a time when it seems like we could really
35:09
Speaker 1: use it, I encourage all of you to continue to
35:13
Speaker 1: keep your voices up, write those letters to your local
35:17
Speaker 1: prosecutors and judges, be a more conscientious juror pitching in
35:23
Speaker 1: any way that you can. Together we can ensure that
35:27
Speaker 1: one day there will be no more wrongful convictions. Based
35:32
Speaker 1: on Junk Science. Wrongful Conviction Junk Science is a production
35:46
Speaker 1: of Lava for Good Podcasts and association with Signal Company
35:49
Speaker 1: Number One. Thanks to our executive producer Jason Flahm and
35:53
Speaker 1: the team at Signal Company Number one executive producer Kevin
35:56
Speaker 1: Wartis and senior producers Karen Krnhaber and Britain Spangler. Our
36:01
Speaker 1: music was composed by Jay Ralph. You can follow me
36:04
Speaker 1: on Instagram at dubin Josh, follow the Wrongful Conviction podcast
36:09
Speaker 1: on Facebook and on Instagram at Wrongful Conviction and on
36:13
Speaker 1: Twitter at wrong Conviction