Saturday, January 7, 2012


ABA Article - “Unsettling Science”

Once unquestioned, shaken baby syndrome evidence, which has been the underpinning of child abuse prosecutions is now under attack. “Unsettling Science,” by Mark Hansen (ABA Journal Dec. 2011) should be read by any prosecutor or defense counsel assigned to such a case.

The article focuses on Audrey Edmunds (left), who was convicted of reckless homicide for shaking a couple’s infant to death. SBS at the heart of the prosecution’s case. The SBS theory is that a characteristic set of head injuries, including swelling of the brain, bleeding around the brain and bleeding in the retinas of the eye which are otherwise explained, can be attributed to violent head shaking. In 2008, the Wisconsin appellate court overturned Edmund’s conviction, holding as follows:

“The newly discovered evidence in this case shows that there has been a shift in mainstream medical opinion since the time of Edmunds's trial as to the causes of the types of trauma Natalie exhibited. We recognize, as did the circuit court, that there are now competing medical opinions as to how Natalie's injuries arose and that the new evidence does not completely dispel the old evidence. Indeed, the debate between the defense and State experts reveals a fierce disagreement between forensic pathologists, who now question whether the symptoms Natalie displayed indicate intentional head trauma, and pediatricians, who largely adhere to the science as presented at Edmunds's trial. However, it is the emergence of a legitimate and significant dispute within the medical community as to the cause of those injuries that constitutes newly discovered evidence. At trial, and on Edmunds's first postconviction motion, there was no such fierce debate. Thus, the State was able to easily overcome Edmunds's argument that she did not cause Natalie's injuries by pointing out that the jury would have to disbelieve the medical experts in order to have a reasonable doubt as to Edmunds's guilt. Now, a jury would be faced with competing credible medical opinions in determining whether there is a reasonable doubt as to Edmunds's guilt. Thus, we conclude that the record establishes that there is a reasonable probability that a jury, looking at both the new medical testimony and the old medical testimony, would have a reasonable doubt as to Edmunds's guilt. Accordingly, we reverse and remand for a new trial.” The full opinion can be found here.

The ABA article concludes: “. . . (A) growing chorus of critics says the entire theory rests on an uncertain scientific footing that continues to erode under the weight of scientific scrutiny, raising the specter that hundreds if not thousands of innocent people – parents, grandparents, baby sitters, nannies, boyfriends –have faced criminal charges and even been imprisoned in the past three decades for crimes they may not have committed."

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