Latest / Wrongful Conviction / #410 Wrongful Conviction: Junk Science - Shaken Baby Syndrome

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

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Speaker 1: Hey, folks, Kate Judson here. I'm a lawyer and the
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Speaker 1: executive director of the Center for Integrity and Forensic Sciences.
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Speaker 1: We're back with another episode of Junk Science, a series
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Speaker 1: we first released in twenty twenty, but these stories are
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Speaker 1: just as relevant as ever. This is the last episode
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Speaker 1: of our series and one that's especially close to my heart.
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Speaker 1: Shake and baby syndrome is one of the main focuses
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Speaker 1: of my work, and I am interviewed in the episode
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Speaker 1: you're about to hear. Shake and baby syndrome is a
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Speaker 1: determination doctors make when a certain constellation of medical findings
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Speaker 1: show up together in a child, and as we'll hear later,
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Speaker 1: there are many reasons for these findings to show up together,
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Speaker 1: not just child abuse. Shake and baby syndrome, also sometimes
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Speaker 1: called abusive head trauma, isn't the only reliable science used
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Speaker 1: to take kids away from their parents and lock up caregivers.
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Speaker 1: Others similarly vague or poorly understood diagnoses have led to
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Speaker 1: the separation and victimization of families. In these cases, the
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Speaker 1: errors of medical and legal systems intertwine, creating a tangled
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Speaker 1: mess that can be difficult to solve and heartbreaking for
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Speaker 1: everyone involved.
1:24
Speaker 2: At six pm, and the usual controlled cast of the
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Speaker 2: day is finally wound down. Most of your daylight hours
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Speaker 2: are filled with the sounds of giggling kids and, yes,
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Speaker 2: the occasional whining and tantrums. You've been a licensed childcare
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Speaker 2: provider for the past fifteen years and you run a
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Speaker 2: daycare center out of your house. You wave goodbye to
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Speaker 2: the last toddler to get picked up by his dad
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Speaker 2: from your doorway, then you head back inside. Your two
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Speaker 2: middle schoolers are sitting at the kitchen table doing their homework,
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Speaker 2: so you take advantage of the brief moment of quiet
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Speaker 2: to start getting dinner ready. But the quiet doesn't last
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Speaker 2: more than a few minutes. There's a knock on the door.
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Speaker 2: You're sure it's one of the kid's parents picking up
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Speaker 2: a missing toy, but your heart sinks to your stomach
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Speaker 2: when you see that it's the police. You quickly open
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Speaker 2: the door, worry that something might have happened to your husband,
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Speaker 2: who hasn't gotten home from work yet. Hi, there is
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Speaker 2: everything okay? You ask They ask you your name, and
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Speaker 2: they say, ma'am, do you run a daycare out of
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Speaker 2: this house? Yes? I do. What seems to be the
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Speaker 2: problem you'll need to come with us. What do you
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Speaker 2: mean I can right now. I'm getting dinner ready for
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Speaker 2: my kids. Ma'am. You don't understand. You need to turn
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Speaker 2: around and put your hands behind your back. You're under arrest.
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Speaker 2: You'll feel the cold handcuffs tighten around your wrists. What
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Speaker 2: is this all about. There's a child in your care name.
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Speaker 2: You know who Maria is, ma'am. She died from brain
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Speaker 2: injuries after spending the day in your care. So I'm
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Speaker 2: gonna read you your rights. You're speechless, Maria, that little
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Speaker 2: girl who spent one session at your daycare months ago.
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Speaker 2: You can't compute, but you're a mom, and so you
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Speaker 2: leap into action for your kids. You don't want to
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Speaker 2: scare them, so you try to prevent your voice from
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Speaker 2: cracking as you call them over. You tell your fourteen
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Speaker 2: year old look after your little brother. Call your dad,
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Speaker 2: he'll be here soon. Tell him not to worry, and
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Speaker 2: you don't worry. This is all going to work out.
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Speaker 2: You put on a brave face for them, and you
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Speaker 2: try not to panic as one of the officers pushes
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Speaker 2: your head down in that classic move that leads a
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Speaker 2: suspect into the back of a police car. Your world
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Speaker 2: has turned upside down in an instant. As the police
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Speaker 2: car pulls away from your house and down the street
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Speaker 2: toward the County gi you sit in jail before your
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Speaker 2: trial and replay the events of the day. You watch
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Speaker 2: Maria over and over again in your head. You were
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Speaker 2: sitting on the carpet helping one of the little boys
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Speaker 2: get a train rolling on its tracks when there was
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Speaker 2: a knock at the door. You answered it and you
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Speaker 2: saw a smiling baby in the arms of her mother.
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Speaker 2: This must be Maria, you said, smiling at the toddler.
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Speaker 2: You took Maria from her mother's arms and helped the
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Speaker 2: little girl wave goodbye with her tiny hand while her
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Speaker 2: mom pulled out of the driveway. Maria was happy and
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Speaker 2: playful all day until about noon. She started crying, and
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Speaker 2: you recognize that as the telltale sign of a tired baby.
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Speaker 2: You put her down for a nap, and a few
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Speaker 2: hours later Maria's mom came back. Maria was still sleeping.
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Speaker 2: You watched her pick Maria up from the crib, trying
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Speaker 2: not to wake her. Maria slept on her mom's shoulder
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Speaker 2: the whole way to the car. You watched as they
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Speaker 2: pulled out of the driveway. That's everything you can remember
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Speaker 2: from that day, but that's not what happened. What you
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Speaker 2: didn't know is that when Maria and her mother pulled
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Speaker 2: up to their home, Maria was slumped over in her
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Speaker 2: car seat, her head almost in her lap, and she'd
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Speaker 2: thrown up all over herself. Maria wouldn't wake up, so
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Speaker 2: her mom called nine to one one and she was
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Speaker 2: rushed to the hospital. The doctor said that the baby's
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Speaker 2: brain was bleeding and swollen, and her blood sugar was high.
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Speaker 2: The doctors frantically worked on her, trying to revive her,
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Speaker 2: but eventually Maria was put on life support. She died
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Speaker 2: about a week later. Approximately two months after that, the
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Speaker 2: police showed up at your house and arrested you. Sitting
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Speaker 2: in your jail cell, you're paralyzed by the horror of
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Speaker 2: all this. One family lost their baby, and your kids
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Speaker 2: are at home wondering if their mother will be around
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Speaker 2: to watch them grow up. Now it's the day of
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Speaker 2: your trial. Your lawyer doesn't dispute that bleeding and swelling
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Speaker 2: of Maria's brain caused her death, but there was no
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Speaker 2: evidence that it was caused by anything you did. There
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Speaker 2: was no evidence whatsoever that you abused Maria in any way.
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Speaker 2: She didn't have any broken bones, no injuries to her
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Speaker 2: neck or spinal column or anything like that. And there was,
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Speaker 2: in fact another explanation for Maria's injuries. When she had
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Speaker 2: been admitted to the hospital, her blood sugar level was
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Speaker 2: four times higher than what was considered to be normal,
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Speaker 2: and so it was possible that Maria's brain injuries may
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Speaker 2: have been caused by an undiagnosed metabolic disorder like diabetes.
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Speaker 2: But when the prosecution makes its case, the pain and
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Speaker 2: mystery around Maria's death is sharpened to a fine point.
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Speaker 2: A child abuse specialist takes the stand and tells the
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Speaker 2: jury that Maria had bleeding and swelling in her brain
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Speaker 2: and bleeding behind her eyes. Let me make it clear,
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Speaker 2: the expert witness said, these injuries mean that Maria incurred
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Speaker 2: physical abuse associated with trauma to the head. There is
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Speaker 2: no other way these injuries could have occurred. You sit
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Speaker 2: there next to your defense attorney and your heart starts
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Speaker 2: beating fast, your sweating. You know what she's saying can't
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Speaker 2: be true. You've been watching kids for your entire adult life.
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Speaker 2: You would never, you have never hurt a child. And
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Speaker 2: yet you know that if you were a member of
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Speaker 2: that jury and you heard this testimony from this doctor,
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Speaker 2: that you would probably believe it too. You would also
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Speaker 2: want to be able to hold someone accountable for the
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Speaker 2: death of this innocent child. When the jury goes into
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Speaker 2: their deliberations, you're not just worried about the outcome of
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Speaker 2: your trial. Your heart is also broken for Maria's family.
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Speaker 2: You know you'll never be able to wrap your head
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Speaker 2: around their grief, but you also know that putting an
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Speaker 2: innocent person in prison won't bring their baby back. After
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Speaker 2: just two days of deliberating, the jury comes back with
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Speaker 2: a guilty verdict. You bury your face in your hands
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Speaker 2: as the verdict has read. At your sentencing, the prosecution
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Speaker 2: reads letters from Maria's family. Her mother had addressed one
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Speaker 2: of them to you. It said, you killed my baby. Why?
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Speaker 2: Why did you do this? I beg this chord to
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Speaker 2: give you the maximum sentence possible. You are sentenced to
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Speaker 2: fifteen years in prison for manslaughter. The story you just
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Speaker 2: heard is loosely based on Stephanie Spurgeon's wrongful conviction in
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Speaker 2: two thousand and eight. Innocent people have been convicted based
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Speaker 2: on medical testimony, which claims that three symptoms bleeding of
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Speaker 2: the brain, swelling of the brain, and bleeding behind the eyes,
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Speaker 2: indicates a form of child abuse referred to as shaken
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Speaker 2: baby syndrome, but this medical testimony has proven to be problematic.
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Speaker 2: With the help of the Innocence Project and the Exoneration
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Speaker 2: Project from the University of Chicago Law School, the evidence
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Speaker 2: in Stephanie's case was re examined and she was released
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Speaker 2: from prison in August twenty twenty. But many others are
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Speaker 2: not as lucky and continue to serve sentences for crimes
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Speaker 2: they did not commit. There's nothing more devastating than the
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Speaker 2: death of a child. When a tragedy like that occurs,
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Speaker 2: it's natural to want answers, how did this happen, who
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Speaker 2: should we hold accountable for this, and what could have
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Speaker 2: been done to prevent it. What might be most difficult
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Speaker 2: for jurors to accept is that the death was completely accidental,
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Speaker 2: that there was nothing anyone did to cause it, and
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Speaker 2: nothing could have been done to stop it. I'm Josh Dubin,
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Speaker 2: civil rights and criminal defense attorney, an Innocent ambassador to
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Speaker 2: the Innocence Project in New York. Today on wrongful conviction,
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Speaker 2: junk science we'll explore how what's known as shaken baby
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Speaker 2: syndrome has been used to falsely implicate people in crimes
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Speaker 2: that they did not commit. It turns out that shaken
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Speaker 2: baby syndrome isn't a full proof diagnosis. There are many
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Speaker 2: other causes for the symptoms of shaken baby syndrome that
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Speaker 2: do not arise from intentionally shaking a baby. In nineteen
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Speaker 2: sixty nine, two scientists put a live reciss monkey under
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Speaker 2: anesthesia and strapped it to a chair made of fiberglass.
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Speaker 2: The fiberglass chair was then attached to roller skate wheels.
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Speaker 2: When the tiny car accelerated and then decelerated quickly, the
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Speaker 2: passenger's head that is, the monkey's head, was flung backwards
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Speaker 2: then quickly snapped forward. Scientists wanted to study the effect
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Speaker 2: of whiplash during a car crash, so the tiny car
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Speaker 2: with the little monkey passenger was designed to mimic the
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Speaker 2: movement of a car during a rear end collision. Of
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Speaker 2: the fifty monkeys that took a ride in the whiplash car,
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Speaker 2: nineteen of them sustained a concussion. The study proved that
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Speaker 2: direct impact from a hard surface to the head isn't
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Speaker 2: necessary to cause traumatic brain injuries. The human brain can
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Speaker 2: be injured just from a head being violently jerked back
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Speaker 2: and forth, causing the brain to rattle around inside the skull.
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Speaker 2: This study had important repercussions for car safety. It's part
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Speaker 2: of the reason why cars are supposed to have headrests
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Speaker 2: to prevent brain injuries due to whiplash during an accident.
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Speaker 2: But this study also interested a British pediatric neurosurgeon named
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Speaker 2: Norman Guthkelch. Now, Doctor Guthkelch had been noticing infants coming
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Speaker 2: into his office with no outward signs of abuse, no bruising,
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Speaker 2: no broken bones, but they had bleeding around their brain.
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Speaker 2: He wondered if these children had been getting whiplash not
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Speaker 2: from a car crash, but from their parents and caregivers. Now,
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Speaker 2: at the time in Northern England, shaking babies was a
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Speaker 2: socially acceptable way of calming, quieting, and even disciplining a
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Speaker 2: fussy baby. In fact, when doctor Guthkelch saw children with
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Speaker 2: bleeding around their brain, he asked parents if they sometimes
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Speaker 2: shook their child. Many parents readily confess they would say yes.
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Speaker 2: Johnny wouldn't stop crying, so I gave him a good
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Speaker 2: shaking doctor guth Kelch suspected that shaking an infant mimicked
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Speaker 2: the motion of whiplash, and so he wrote a short
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Speaker 2: two page paper. It said that trauma to a baby's brain,
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Speaker 2: even when no other signs of physical abuse were present,
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Speaker 2: may in fact be caused by violent shaking. Doctor guth
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Speaker 2: Kelch never claimed that there might not be other causes
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Speaker 2: of bleeding around the brain. He simply hypothesized that shaking
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Speaker 2: might be the cause of it. His hope was that
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Speaker 2: doctors who read his study would help teach parents to
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Speaker 2: handle their infants more gently to avoid accidental harm. After
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Speaker 2: doctor guth Kelch's article was published, other doctors continue to
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Speaker 2: research this issue. They found that three symptoms in particular
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Speaker 2: were associated with shaking a baby. These symptoms were subdural hematoma,
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Speaker 2: retinal hemorrhage, and cerebral edema that is bleeding around the brain,
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Speaker 2: bleeding behind the eyes, and brain swelling. These three symptoms
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Speaker 2: became known as the quote classic triad, the signs that
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Speaker 2: are said to be an indicator of shaken baby syndrome.
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Speaker 2: The problem is that these three symptoms became synonymous with
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Speaker 2: shaken baby syndrome. If these three symptoms were present, it
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Speaker 2: was thought that a parent or caretaker must have intentionally
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Speaker 2: shaken their infant, and so when parents showed up to
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Speaker 2: the hospital with a sick child who exhibited some or
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Speaker 2: all of the symptoms of the triad, their children were
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Speaker 2: taken away from them. The parents were put on trial,
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Speaker 2: and they were sometimes convicted of abusing or even killing
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Speaker 2: their own child. As parents started to be accused of
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Speaker 2: child abuse based solely on the hypothesis of shaking baby syndrome,
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Speaker 2: doctor Gothkelch knew he had to do something he never
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Speaker 2: meant for his short paper to be used as a
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Speaker 2: tool for prosecution. The whole point of his paper was
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Speaker 2: to help parents, not criminalize them. Doctor Guthkelch continued to
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Speaker 2: fight for wrongfully convicted parents and caregivers up until he
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Speaker 2: died in twenty sixteen at the ripe age of one
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Speaker 2: hundred and one years old.
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Speaker 3: No one was really suggesting that this should be a
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Speaker 3: mechanism for prosecuting anyone. They acknowledged, and you know, pretty
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Speaker 3: clearly articulated that what they were talking about was a
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Speaker 3: hypothesis about why children might have these findings. But it
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Speaker 3: then started to be used as a paradigm for prosecution,
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Speaker 3: and that's really where it runs into trouble because instead
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Speaker 3: of continuing to research and look for answers, physicians and
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Speaker 3: prosecutors started to accept it without looking further into the
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Speaker 3: kinds of claims that experts were making about it.
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Speaker 2: Today on our show, we're speaking with Kate Judson. Kate
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Speaker 2: is the executive director for the Center for Integrity and
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Speaker 2: Forensic Sciences, and she was one of the lawyers who
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Speaker 2: represented Stephanie Spurgeon, whose story we discussed at the beginning
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Speaker 2: of our show. So to start tell us about what
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Speaker 2: we should understand about the difference between shaking baby syndrome
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Speaker 2: as a hypothesis rather than as a diagnosis.
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Speaker 3: I think there are a lot of ways in which
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Speaker 3: it differs significantly from other medical diagnoses. So child abuse
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Speaker 3: and particularly shaken baby syndrome is much more a determination
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Speaker 3: of etiology of how somebody got the medical findings then
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Speaker 3: the medical findings themselves. So the kinds of findings that
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Speaker 3: are often attributed to child abuse in shaken baby syndrome
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Speaker 3: and abusive head trauma cases can be due to trauma,
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Speaker 3: but it isn't always, so there are medical conditions that
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Speaker 3: can cause these kinds of medical findings as well, and
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Speaker 3: so sometimes the evidence of actual innocence is new medical
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Speaker 3: opinions that support the idea that the child had a
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Speaker 3: disease or another kind of condition that led to their
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Speaker 3: medical findings, rather than any kind of trauma or abuse.
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Speaker 2: So let's back off for a second to when this
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Speaker 2: first started to be used at trial. How did this
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Speaker 2: diagnosis become something that prosecutors were able to weaponize against defendants.
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Speaker 3: Part of what makes it seductive if you're trying to
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Speaker 3: protect children and punish wrongdoing is that it seemed at
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Speaker 3: the time very definitive. Pyusicians were saying, if a child
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Speaker 3: has this set of injuries, they have been abused, and
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Speaker 3: that abuse consisted of shaking, and we know that, and
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Speaker 3: there are no exceptions, or very very few exceptions. I mean,
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Speaker 3: in fact, at the time, there are plenty of transcripts
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Speaker 3: available where physicians said nothing else causes this, right, and
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Speaker 3: so it gives a very clear and definitive answer. No
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Speaker 3: one has to wonder in the face of such an answer,
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Speaker 3: what happened to a child who died, who previously would
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Speaker 3: have no explanation for their death. It's definitive, it's clear
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Speaker 3: and frankly, really effective in court, often resulting in a
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Speaker 3: conviction almost all the time. So I think that it
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Speaker 3: gave people who were involved in the criminal legal system
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Speaker 3: the impression that they were successfully locking up people who
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Speaker 3: were dangerous who had murdered a child. And it turns
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Speaker 3: out it's not that straightforward.
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Speaker 2: So tell us more about other ways a child can
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Speaker 2: come to have the same kind of symptoms or the
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Speaker 2: same sort of trauma that are usually associated with shaking
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Speaker 2: baby syndrome.
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Speaker 3: There are things like infection, serious infection, genetic disorders, problems
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Speaker 3: with blood clotting, certain kinds of tumors, certain kinds of
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Speaker 3: blood cloths, you know, like a pediatric stroke. There are
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Speaker 3: cases where the medical findings are thought to have arisen
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Speaker 3: after events like choking. But what really started to come
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Speaker 3: to light in twenty sixteen there was a report done
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Speaker 3: by the Swedish government that looked at medical literature that
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Speaker 3: discussed you know what is colloquially called the triad that
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Speaker 3: the combination of subdralhematoma, rental hemorrhage, and cerebral edema, and
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Speaker 3: looked at children who were diagnosed as and studies of
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Speaker 3: children who were diagnosed as being abused based on those findings.
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Speaker 3: What they found was that the data was not there,
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Speaker 3: that it was very incomplete, and they recommended that the
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Speaker 3: Swedish government no longer prosecute people under that paradigm. And
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Speaker 3: the reaction that that got from, you know, child advocates
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Speaker 3: and child abust pediatricians was simply to attack the people
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Speaker 3: who did the report. You know, there's been a real
20:25
Speaker 3: lack of serious engagement around the failings in the literature
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Speaker 3: that everybody knows are there, and so that is really
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Speaker 3: a shame and that's not how science progresses, and that's
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Speaker 3: not how people get fair trials. People who who are
20:41
Speaker 3: admirably concerned about protecting children have unfortunately written things like
20:47
Speaker 3: editorials in journals engaging in personal attacks instead of trying
20:53
Speaker 3: to figure out how to best approach these kinds of cases.
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Speaker 2: And that's part of what makes studies and being critical
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Speaker 2: of the shaken baby hypothesis really difficult. People often assume
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Speaker 2: that critics of shaken baby syndrome are trying to side
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Speaker 2: with child abusers, and of course that's not the case. Researchers, doctors,
21:14
Speaker 2: lawyers who are critical of shaking baby syndrome are just
21:18
Speaker 2: trying to make sure that people don't get accused of
21:23
Speaker 2: crimes they didn't commit based on misleading evidence. And on
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Speaker 2: the other side of this battle, there are well meaning
21:30
Speaker 2: people who are trying to protect children from abuse. I
21:35
Speaker 2: know that expert witnesses and cases involving child abuse are
21:39
Speaker 2: often doctors, So tell us more about that. Who are
21:42
Speaker 2: the doctors who testify during these cases for the prosecution
21:47
Speaker 2: as experts?
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Speaker 3: So there are different kinds of physicians. They're not always
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Speaker 3: child abuse pediatricians, but they frequently are child abuse pediatricians.
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Speaker 3: There are about three hundred child abuse pediatricians in the
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Speaker 3: United States. It's a new subspecialty. I believe the first
22:05
Speaker 3: child abuse pediatricians were board certified in twenty eleven, so
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Speaker 3: it's quite new. So their job is to evaluate children
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Speaker 3: in hospitals or clinics for child abuse and yes, to
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Speaker 3: testify in cases or to create reports for law enforcement
22:20
Speaker 3: agencies for the courts.
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Speaker 2: So that's interesting. I guess talking about biases, I could
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Speaker 2: imagine that someone who's trained to look for child abuse
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Speaker 2: could just start seeing abuse everywhere. It's what they know,
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Speaker 2: it's what they study, it's what they look for. They think,
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Speaker 2: you know, this is a symptom that comes up with
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Speaker 2: people who are victims of abuse, so it must be abused.
22:41
Speaker 2: It's you know, becomes difficult to see outside of your
22:44
Speaker 2: own tunnel vision. And so when a medical specialty is
22:48
Speaker 2: geared directly towards one conclusion or looking out for one thing,
22:53
Speaker 2: of course, even with the best of intentions, it could
22:57
Speaker 2: be easy for these doctors to get tunnel vision right.
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Speaker 3: That's a real concern when analysts are, for example, embedded
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Speaker 3: with law enforcement. When the crime lab is part of
23:10
Speaker 3: the police department, for example, we see this role affects bias.
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Speaker 3: Analysts start to see themselves as part of the law
23:16
Speaker 3: enforcement team rather than as an objective, independent scientist. But
23:21
Speaker 3: the same issue was present when child abuse pediatricians are
23:25
Speaker 3: part of a child abuse team, especially when those teams
23:31
Speaker 3: involve police and investigators and prosecutors and don't involve people,
23:36
Speaker 3: for example, from the defense bar. And since they're all
23:39
Speaker 3: human beings, it's not unreasonable to say that the same
23:42
Speaker 3: concerns we have about analysts housed within a police station
23:46
Speaker 3: or who work very closely with police and prosecutors, that
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Speaker 3: other kinds of experts might be subject to those same biases.
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Speaker 2: I think another reason that there are so many wrongful
23:55
Speaker 2: convictions when people are accused of abuse, is that everybody involved, jurors, lawyers,
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Speaker 2: the doctors, they don't want to get it wrong because,
24:06
Speaker 2: let's just face it, setting a potential child abuse are
24:10
Speaker 2: free is a scary proposition. The stakes are very high
24:13
Speaker 2: in these cases.
24:15
Speaker 3: So really often I hear people respond to these concerns,
24:21
Speaker 3: particularly people who are who are working in kind of
24:25
Speaker 3: the child abuse field, respond to these concerns about wrongful
24:28
Speaker 3: convictions by saying, well, we just want to air on
24:30
Speaker 3: the side of the child, right, But in these kinds
24:33
Speaker 3: of cases there's really no way to do that. Any
24:36
Speaker 3: error is harmful. This idea that you can air safely
24:40
Speaker 3: on the side of the child is a false one.
24:43
Speaker 3: And that's because if you get this wrong. If a
24:46
Speaker 3: child is being diagnosed as or being determined to have
24:49
Speaker 3: been abused and they haven't been, a couple of things
24:52
Speaker 3: can happen. One is that a child can be deprived
24:56
Speaker 3: of a loving home and separated from loving parents and caregivers.
25:01
Speaker 3: And studies have shown over and over and over again
25:05
Speaker 3: that separating children from their family is traumatic. It is
25:09
Speaker 3: sometimes a necessary harm, but it is always harmful.
25:14
Speaker 2: Even for people who are just accused of child abuse
25:18
Speaker 2: and they don't get convicted, but just have to go
25:21
Speaker 2: through the trial. That in itself can be so damaging
25:27
Speaker 2: to children and their families.
25:30
Speaker 3: I mean it's anecdotal, but I pretty frequently hear from
25:34
Speaker 3: families who say, like, we're really grateful that nobody in
25:37
Speaker 3: our family was convicted, but our kids are still suffering
25:39
Speaker 3: all kinds of harm and problems from the trauma that
25:42
Speaker 3: was inflicted upon them just from even a brief separation.
25:46
Speaker 3: So there may very well be good reason reasons to
25:51
Speaker 3: separate families, But what we can't do is go to
25:54
Speaker 3: court and say that the abuse is more definitive than
25:59
Speaker 3: the science actually supp if that makes sense. The other
26:02
Speaker 3: problem is that when these cases are not medically investigated carefully,
26:06
Speaker 3: there is the chance that a child will be classified
26:09
Speaker 3: as having been abused when they actually have a serious illness,
26:13
Speaker 3: and that is also really problematic can potentially lead to
26:17
Speaker 3: more harm or even death because of that misdiagnosis.
26:21
Speaker 2: It seems almost unlikely that evidence in child abuse cases
26:25
Speaker 2: can be similar to other forensic disciplines that we've talked
26:28
Speaker 2: about on our show, But it turns out that the
26:31
Speaker 2: same tactics used to convict people based on faulty pattern
26:36
Speaker 2: matching evidence, for example, is really the same thing we're
26:40
Speaker 2: dealing with here. In instances of you know, alleged.
26:44
Speaker 3: Child abuse, the kind of biases that we see in
26:48
Speaker 3: other kinds of forensic sciences are certainly present here. And
26:52
Speaker 3: because there is no gold standard criteria, no simple or
26:57
Speaker 3: single test that allows any to make a diagnosis of
27:01
Speaker 3: child abuse, you end up having to fall back on
27:03
Speaker 3: so much subjectivity of the person examining the child and
27:07
Speaker 3: looking at the facts, and what we know from pattern
27:10
Speaker 3: matching disciplines in particular, but also things like ours and investigation,
27:15
Speaker 3: is that the more subjectivity that is introduced into the system,
27:18
Speaker 3: the less reliable your result can be. Sometimes when you
27:22
Speaker 3: look at the breakdown of cases where people get wrongfully
27:25
Speaker 3: convicted based on faulty forensic science, and a majority of them,
27:29
Speaker 3: part of the faulty forensic science is that the expert
27:32
Speaker 3: spoke to the jury with more certainty than the science warranted.
27:36
Speaker 3: The same is true in cases with medical testimony. So
27:40
Speaker 3: when a doctor says that a fracture or a subdural
27:44
Speaker 3: hematoma or a retinal hemorrhage can only be caused by
27:47
Speaker 3: child abuse, and there's no other explanation that is definitive,
27:52
Speaker 3: it is convincing that is stated with more certainty than
27:56
Speaker 3: the science can support, and that can certainly lead to
28:00
Speaker 3: an unfair trial and a wrongful conviction.
28:03
Speaker 2: So, in your opinion, when something as tragic as a
28:07
Speaker 2: baby dying happens, what can we do to make sure
28:11
Speaker 2: that the cause of death is determined correctly so that
28:18
Speaker 2: parents and caretakers stop being wrongfully accused based on this
28:22
Speaker 2: shaken baby hypothesis.
28:25
Speaker 3: There really should be really rigorous testing in all of
28:28
Speaker 3: these cases, and not every case out there gets the
28:32
Speaker 3: benefit of really careful, comprehensive testing. There's actually kind of
28:37
Speaker 3: a famous case that a district attorney from Queen's has
28:41
Speaker 3: used in a bunch of presentations where there was a
28:44
Speaker 3: videotaped fall. A child fell at a mall and off
28:48
Speaker 3: of just a really short fall off of a piece
28:51
Speaker 3: of playground equipment and later died, and investigators embarked upon
28:55
Speaker 3: an extremely complex and comprehensive medical evaluation, and when they
29:00
Speaker 3: did that, they found that there were potentially some blood
29:03
Speaker 3: disorders lurking within the family. And while the child who
29:06
Speaker 3: died never definitively tested positive for a bleeding disorder. Her
29:10
Speaker 3: parents were carrying genes that suggested that she may have
29:15
Speaker 3: had one that may have contributed to her death. But
29:18
Speaker 3: I have to tell you that it's uncommon that that
29:20
Speaker 3: kind of testing is done. I have seen it become
29:23
Speaker 3: more common, and hopefully it will continue to become more common.
29:26
Speaker 3: But that's just a great example of really thorough evaluation,
29:31
Speaker 3: clarifying that a deceased child died because of a tragic accident,
29:36
Speaker 3: not because anybody hurt her.
29:38
Speaker 2: When I think about people convicted based on this type
29:43
Speaker 2: of evidence, it's usually a parent that we're talking about.
29:46
Speaker 2: Someone who has just lost their child, is going through
29:50
Speaker 2: this unimaginable tragedy, and then to be accused of being
29:56
Speaker 2: the one that actually inflicted this harm a lot to
30:00
Speaker 2: wrap your head around. It's like too much to.
30:03
Speaker 3: Bear for parents who go through this. They have a
30:07
Speaker 3: double tragedy, right They have the loss of the life
30:11
Speaker 3: or health of their child, which is incredibly tragic, and
30:16
Speaker 3: then they have this prosecution, which threatens their freedom, often
30:21
Speaker 3: threatens their relationship with their other children. In some of
30:24
Speaker 3: these cases, parents might lose custody of other children in
30:28
Speaker 3: the family, it's horrifying. It's horrifying as.
30:33
Speaker 2: A lawyer to it. It must be difficult to be
30:36
Speaker 2: watching this unfold.
30:39
Speaker 3: Yeah, it's an incredibly emotional situation. And in fact, there
30:42
Speaker 3: are some lawyers who find these cases so disturbing and
30:46
Speaker 3: disruptive that they do one and they never want to
30:49
Speaker 3: do another one. You do care about that happening. I mean,
30:52
Speaker 3: it's not easy. It's always difficult. They are very emotional,
30:57
Speaker 3: they are very upsetting. It is it's difficult to be
31:01
Speaker 3: there for someone who has gone through, like, like I said,
31:06
Speaker 3: this double tragedy, right where a child that you know
31:10
Speaker 3: that they loved and cared about is gone or very
31:15
Speaker 3: or were very different, and then they've they've been accused
31:18
Speaker 3: of this crime they didn't commit. It's it's it's terrible.
31:21
Speaker 3: I think the only reason why I feel compelled to
31:25
Speaker 3: keep doing it is that what has happened to these
31:29
Speaker 3: folks is wrong and someone has to help them and
31:34
Speaker 3: stand up for them. It's not an easy thing, but
31:38
Speaker 3: I think it's a necessary one.
31:44
Speaker 2: When I agreed to host this podcast, I set out
31:47
Speaker 2: to expose some of the many flaws that exist in
31:49
Speaker 2: our criminal justice system. Specifically, what I wanted to do
31:55
Speaker 2: was address what goes wrong when jurors are presented with
31:58
Speaker 2: what they are told this science but actually turns out
32:02
Speaker 2: to be well junk. The harms of junk science go
32:07
Speaker 2: beyond innocent people having to endure the unthinkable nightmare of
32:11
Speaker 2: being accused and convicted of crimes they did not commit.
32:16
Speaker 2: The consequences extend even further than those people having to
32:19
Speaker 2: endure the rawest and most cutting of human suffering, being
32:24
Speaker 2: torn from their life and locked in a cage. In
32:27
Speaker 2: addition to that human tragedy, junk science causes the moral
32:32
Speaker 2: fabric of our judicial system to wear and tear at
32:36
Speaker 2: the seams. It causes an entire institution of law and
32:41
Speaker 2: order and justice to be completely undermined. In examining the
32:47
Speaker 2: various disciplines of forensic science we've discussed this season, whether
32:51
Speaker 2: it was our sin or blood spatter, eyewitness identification, or,
32:56
Speaker 2: as in this episode, shaking baby syndrome. I knew it
33:00
Speaker 2: would be interesting and enlightening, but I never expected it
33:04
Speaker 2: to affect me in the profound manner that it has.
33:07
Speaker 2: I have been in turns dumbfounded, angry, saddened, and even outraged.
33:15
Speaker 2: A trial is supposed to be a search for the truth.
33:19
Speaker 2: The word science itself is defined as the study of
33:23
Speaker 2: the physical and natural world through observation and experiment. Our
33:29
Speaker 2: system of justice has been regarded as not perfect, but
33:33
Speaker 2: the best way to ensure that people who are accused
33:36
Speaker 2: of crimes get the fairest shake possible. So how is
33:41
Speaker 2: our system of justice veered so far off the tracks?
33:45
Speaker 2: How have we managed to bastardize and bludgeon What science means?
33:51
Speaker 2: I don't know if we can ever arrive at a
33:52
Speaker 2: clear answer. There are probably many explanations. One thing I
33:57
Speaker 2: do know is that when human beings get involved in
33:59
Speaker 2: it any endeavor, we bring our own biases or thirst
34:04
Speaker 2: for financial gain, our hunches and quirks into the equation,
34:08
Speaker 2: and in the process we sometimes create such a mess
34:13
Speaker 2: that it becomes difficult to untangle the hows and whys
34:16
Speaker 2: of it all. But I still manage to find hope
34:21
Speaker 2: and a way forward. And here's why. If you've ever
34:25
Speaker 2: been fortunate enough to meet someone that has spent time
34:28
Speaker 2: in prison for a crime they didn't commit, one thing
34:31
Speaker 2: becomes apparent very quickly. They are the embodiment of all
34:37
Speaker 2: that is soaring and remarkable about the human condition. They
34:43
Speaker 2: are a special combination of resilience, hope, forgiveness and strength.
34:51
Speaker 2: They are quite simply a force of nature. So I
34:56
Speaker 2: will continue to pour my energy, every cell in my
34:59
Speaker 2: body into helping those who are still behind bars for
35:03
Speaker 2: crimes they did not commit. I will fight to restore
35:07
Speaker 2: signs to its proper definition in our courtrooms. I am
35:11
Speaker 2: propelled by these men and women that represent the triumph
35:15
Speaker 2: of the human soul. To restore one's life and freedom
35:20
Speaker 2: is perhaps the highest service to your fellow human being.
35:24
Speaker 2: I can't even find the words to describe what it's
35:27
Speaker 2: like to walk someone out of a nightmare of a
35:31
Speaker 2: prison cell and into the bright light of freedom to
35:36
Speaker 2: restore a life. The only way I can articulate it
35:41
Speaker 2: is that, aside from marrying my wife and the birth
35:45
Speaker 2: of my children, it is and always will be my
35:50
Speaker 2: most important contribution to my fellow human beings. There is
35:54
Speaker 2: nothing I have done in this life, or could ever
35:57
Speaker 2: fathom doing, that can ever close. No material gain, no drug,
36:04
Speaker 2: no drink, nothing at all that can approach the state
36:08
Speaker 2: of nirvana that consumes your soul when you have helped
36:13
Speaker 2: save a life, and I think that says a lot
36:17
Speaker 2: about who we are at our essence, we are meant
36:21
Speaker 2: to be of service to one another, to heal each other,
36:24
Speaker 2: to restore each other. Not a bad message, if I
36:28
Speaker 2: do say so myself, at a time when it seems
36:31
Speaker 2: like we could really use it, I encourage all of
36:35
Speaker 2: you to continue to keep your voices up, write those
36:40
Speaker 2: letters to your local prosecutors and judges, be a more
36:43
Speaker 2: conscientious juror pitching in any way that you can. Together
36:50
Speaker 2: we can ensure that one day there will be no
36:53
Speaker 2: more wrongful convictions Based on Junk Science. Wrongful Conviction Junk
37:08
Speaker 2: Science is a production of Lava for Good Podcasts and
37:11
Speaker 2: association with Signal Company Number One. Thanks to our executive
37:15
Speaker 2: producer Jason Flam and the team at Signal Company Number
37:18
Speaker 2: one executive producer Kevin Wardis and senior producers Kara Kornhaber
37:23
Speaker 2: and Brit Spangler. Our music was composed by Jay Ralph.
37:27
Speaker 2: You can follow me on Instagram at dubin Josh. Follow
37:31
Speaker 2: the Wrongful Conviction podcast on Facebook and on Instagram at
37:34
Speaker 2: Wrongful Conviction and on Twitter at wrong Conviction