Is 'shaken baby syndrome' shaky science?

The following editorial was published by the Chicago Tribune on October 21, 2013.

Pamela Jacobazzi of suburban Bartlett has spent the last 14 years in prison for violently shaking 10-month-old Matthew Czapski to death. The 58-year-old former home day care operator is among hundreds of people nationwide convicted in recent decades on the basis of what doctors call "shaken baby syndrome." That diagnosis gained prominence in the 1980s and '90s, as publicity campaigns warned of the dangers of shaking infants.

Lawyers for Jacobazzi argued that her conviction should be set aside because jurors didn't hear evidence of other medical theories on what killed Matthew.

In September, though, DuPage County Judge Robert Kleeman rejected her bid for a new trial. He didn't rule on the validity of shaken baby syndrome. Instead, he said her trial attorneys had possessed all available medical evidence and had presented a reasonable defense.

But a question lingers here and in similar cases across the U.S.: Is shaken baby syndrome based on shaky science?

You may be surprised to hear it after so many years of warnings on this, but there's a fierce medical and legal debate over shaken baby syndrome, known as SBS. Critics argue that research doesn't show that the symptoms commonly associated with the diagnosis — bleeding and swelling in the brain and behind the eyes — can be caused by shaking alone.

"Virtually all the hallowed tenets of shaken baby syndrome have been challenged on the basis of scientific principles and have been found wanting or wrong," Dr. Jan Leestma, a former Lurie Children's Hospital of Chicago neuropathologist, wrote in his 2009 textbook, "Forensic Neuropathology."

Leestma tells us that a raft of biomechanical studies cast doubt on the idea that shaking a baby will generate enough force to seriously injure his or her brain or cause other symptoms of the diagnosis. But SBS proponents tell us that those studies are incomplete; they don't, for instance, adequately account for multiple or repeated shakings over time.

Let's stop right here to make one thing clear: Violently shaking a baby can lead to serious injuries, particularly if there is neck whiplash or the baby's head strikes a wall or floor. No one, including those skeptical of the science underlying this diagnosis, suggests that such conduct is anything but dangerous and wrong.

That said, it's also clear that SBS is among the trickiest diagnoses for doctors to reach. Babies can't tell doctors what happened. Some illnesses and simple accidents can mimic the symptoms. In some cases, there are no outward signs of abuse. Often there are no witnesses to suspected abuse. What's more, injured infants may be lucid after whatever incident caused the injury. On occasion, infants may even be lucid for hours before they collapse and die. That expands the pool of potential causes and, if authorities suspect abuse, of potential perpetrators.

Jacobazzi is due to be paroled in 2015. But many other people are in jail across the country, convicted of shaking infants. Are some of them innocent? This complex but out-of-the-limelight debate will be hashed out in courtrooms and research labs. That's healthy for medical science, and for our justice system.

Decades ago, many doctors believed that if a child suffered from three symptoms — subdural (brain) and retinal bleeding and brain swelling absent a fracture or bruise to indicate an accident or fall — then the injuries likely happened through vigorous shaking.

In 2009, though, the American Academy of Pediatrics expanded its definition of shaken baby syndrome to stress that while shaking can cause injuries, other factors can be just as important, including the blunt impact of a head against a solid surface like a floor or wall. Researchers also stress that accidents, a child's pre-existing medical condition, medical history and genetic disorders can cause injuries that mimic the effects of abuse. The academy, based in suburban Elk Grove Village, suggested a broader term, "abusive head trauma," to describe the array of injuries abuse can cause.

Dr. Cindy Christian of the academy's committee on child abuse and neglect tells us the medical consensus remains strong around the science of SBS. "Some babies are injured by shaking," says Christian, who co-wrote the 2009 report. "Some by blunt impact. Some by a combination of factors." That report "doesn't say shaking is benign. It doesn't say shaking doesn't harm children. And it doesn't say there is no such thing as SBS.'

Expect to hear more about this. Last year the Innocence Network, a group of organizations that provide pro bono legal help for people who claim to be wrongly convicted, brought on a lawyer to pursue claims of innocence in shaken baby cases nationwide. Doctors will continue to refine the SBS diagnosis, evaluating new research and clinical experience.

The stakes here are high: A mistake in judgment can leave an abusive person in charge of a baby. Or it can land an innocent person behind bars.

That should leave us all shaken.

The hard road to innocence for Elizabeth, NJ man

The following opinion by Julie O'Connor was published by the Star Ledger on October 13, 2013.

Gerard Richardson has spent nearly two decades telling everyone that he is innocent. Almost nobody believed him.

But that changed in July, when a DNA test found the Elizabeth man could not have left a vicious bite mark on the lower back of a 19-year-old woman who was murdered and dumped in a ditch in 1994.

Now the Innocence Project wants him freed. But the trial prosecutor still insists the bite mark is Richardson’s, he is the killer and his conviction is “good and valid.” Timothy Van Hise, a 31-year veteran with the Somerset County Prosecutor’s Office, has agreed to file his response by Oct. 23.

Which leaves the state of New Jersey with two problems. First, an innocent man may be stuck behind bars, thanks to an overzealous prosecutor clinging to faulty forensic science. And second, if Richardson is innocent, someone else is guilty.

Yet believe it or not, the strict rules for private laboratories prevent authorities from running this new bite mark profile through their DNA database to name the real culprit. A man who left his “calling card” in a dead woman’s back 19 years ago may still be roaming free.

THE BITE MARK

Richardson looked like he was playing it cool last month when he showed up to court in dark sunglasses. But those are prescription — fill-ins as he waits for his replacement glasses, because his eyesight has deteriorated over his many years in prison.

It was tough to gauge his reaction when he learned that the prosecutor had no intention of halting his 30-year sentence, despite the new DNA evidence. But his brother said the entire family felt “blindsided.” Van Hise didn’t dispute the science of the DNA test. He simply said, “The bite mark is Richardson’s, so determined the jury.”

“How ridiculous does that sound?” Kevin Richardson said last week. “This is just another example of abuse of his discretion at the expense of my brother’s liberty.”

After the hearing, Van Hise suggested an entirely new scenario: that the victim’s bite mark could have been made by Richardson, and the DNA left by a second assailant. This requires some mental gymnastics.

“So there’s a second phantom perpetrator who drooled on her in the exact same place where Gerard Richardson bit her, without leaving any of his saliva?” said his Innocence Project attorney, Vanessa Potkin. “It doesn’t hold water.”

Van Hise has said this case is more complicated than it appears, but he won’t elaborate. What’s obvious is the conflict of interest here. It’s rare for the same prosecutor who won a conviction to be handling a request to overturn it, if only because that person has usually moved on. Yet Van Hise’s boss, Somerset Prosecutor Geoffrey Soriano — a 2010 appointee — has not taken over the case and refuses to comment on it.

So Richardson remains in prison, even though a DNA test says the bite mark that was the crux of his conviction wasn’t actually his.

There was no DNA testing involved in his trial, which came down to a battle of forensic dentists. The state’s expert testified that no one but Richardson could have bitten the victim. And the expert for the defense said that Richardson was excluded as a match. They couldn’t even settle on which side of the bite mark was up or down.

But both sides did agree on one thing only: that whoever left this bite mark killed Monica Reyes.

DUBIOUS SCIENCE

The victim was 5 feet tall, a skeletal 83 pounds, and hooked on heroin. She sometimes posed as a prostitute to help her brother and boyfriend, also addicts, rob other men for drug money. There were plenty of men with reason to kill her.

The night she vanished, Reyes told her boyfriend she was going to meet a man with money. Five days later, on Feb. 25, 1994, her body was found in Bernards Township. She’d been beaten, stabbed, strangled and possibly sexually assaulted. She was left with a 100-pound rock on her head and a fresh bite mark on her back.

The only teeth submitted for a potential match were Richardson’s. Reyes had owed him $90 for drugs, and Van Hise argued he had killed her to send a warning to the neighborhood. If so, it was never clear why he’d chosen to dump her body more than 30 miles away.

Forensic odontology is well-established for the identification of human remains, when an actual jaw is compared with dental X-rays, said Robert Shaler, who supervised the DNA testing to identify the victims of 9/11. “It’s when it’s transferred to human skin that the problems occur,” he said.

When the skin is bitten, it contracts and then expands, according to Shaler. Matching those stretched tooth marks to a particular set of human jaws is prone to error, and is no longer considered a science. In 2009, the National Academy of Sciences found that bite-mark evidence has never been scientifically validated or demonstrated to be reliable.

Experts routinely come to opposite conclusions, as happened in Richardson’s case. Since 2000, at least 24 people have been found innocent who were wrongly matched to bite marks, including a Massachusetts man implicated by the same forensic dentist who testified against Richardson, his lawyer said.

That man was exonerated after DNA testing found he couldn’t have made the bite mark in question. Yet in Richardson’s case, the prosecutor called the idea that bite-mark evidence is unreliable “nonsense.”

BURIED IN BUREAUCRACY

All that’s left of the bite mark now is the DNA profile of a mystery assailant — whom authorities couldn’t identify if they wanted to. Even though it might take little more than a 10-minute computer search.

This is because the FBI has enacted burdensome rules that make it hard for even reliable test results from private labs to be run through its DNA databank. And New Jersey still hasn’t developed a good workaround.

Richardson’s lawyer chose a private lab in California with a strong record of getting results from old, degraded evidence. To get the best profile, its experts used up what was left of the bite mark swab, so it can’t be retested.

That shouldn’t matter, because New Jersey’s forensic experts have verified the testing as accurate. Yet they still can’t search this genetic footprint through the FBI’s vast DNA clearinghouse, which contains more than 10 million profiles, because of state and federal bureaucracy.

FBI rules require state experts to preapprove any private lab used by a defense attorney, which often means flying across the country to inspect it. As a matter of policy, New Jersey’s forensics lab, run by State Police, won’t do that — not even if a defendant foots the bill. If the lab agreed to do it for one person, it might have to do it for everybody. “We don’t have the personnel to commit to that,” said Joseph Petersack, its chief forensic scientist.

New Jersey can sometimes rely on another state’s data about a private lab without doing its own site visit. But in Richardson’s case, his evidence arrived at the California lab right after its latest site visit had expired. So New Jersey’s lab couldn’t adopt the data from someone else’s site visit, and won’t send an employee.

The end result is that we now have the profile of a violent murderer who, given high recidivism rates in the United States, has a good chance of being in this DNA bank. But authorities can’t legally search it — even though the whole purpose of the database, which cost taxpayers hundreds of millions of dollars, is for moments exactly like this.

OBSTRUCTION OF JUSTICE

Will the FBI make an exception in Richardson’s case, in the interest of finding the true killer? Don’t count on it.

When DNA testing exonerated a man convicted in the 1992 murder and rape of an 11-year-old girl, the FBI went to court to defend its refusal to run the new profile through its forensic library, even though it did not dispute the scientific findings. A federal judge eventually ordered the agency to search the DNA databank.

Such lawsuits are rare. The bureaucratic rules generally allow prosecutors to drag their feet on exonerations, and force some inmates to undergo costly retrials.

The FBI argues its regulations are designed to assure the highest quality standards. But forensic experts such as Edward Blake, whose private lab did the DNA testing in that 1992 case and in Richardson’s, say those regulations are irrational and amount to an obstruction of justice.

You don’t have to look at a lab to evaluate its science, he points out. A peer reviewer just examines the underlying data used to prepare the report. And the quality of his work isn’t in question.

New Jersey’s Legislature has proposed a sensible law to circumvent this problem, though it comes too late for Richardson. The statute would empower judges to order state forensic experts to go through the preapproval process for a private lab, if a defendant requests it and a judge finds it appropriate. The court could compel either the defendant or the state to incur the expenses.

After all, the public’s safety is at stake here. And while Richardson’s lawyer says she has no doubt he’ll be exonerated, even without identifying the true perpetrator, it would save them legal hurdles.

“We would have much less of a fight from the Prosecutor’s Office if we could identify who that person is,” Potkin said, “and bring justice for a victim who was brutally murdered.”

Julie O’Connor is a member of The Star-Ledger editorial board: (973) 392-5839 or joconnor@starledger.com.

King: Watchdog system can target misconduct

The following opinion by Joyce King was published in the Houston Chronicle on October 12, 2013.

I've never met Michael Morton, but my heart is overjoyed for him. Morton had a lot in common with my fiancé.

Like James Woodard, Morton spent more than two decades in a Texas prison for a murder he did not commit. The prosecutor in Morton's 1987 trial relentlessly pursued justice and won the wrongful conviction. But how he did it may finally send jurists a stern warning and result in even more vindication for Morton and his supporters.

Last month, when former Williamson County District Attorney Ken Anderson stepped down from his position as a state district judge, I felt a lump in my throat. Anderson, who has remained adamant that there was no wrongdoing in the conviction that shattered Morton's life as a free man, issued a one-sentence resignation notice to Gov. Rick Perry. But an independent inquiry has determined that Anderson may have broken the law by withholding crucial evidence in Morton's case.

While it is rare that prosecutors are punished harshly, there is no shortage of prosecutorial misconduct examples that we can learn from.

According to a 2003 study by the Center for Public Integrity, in more than 2,000 cases over a four-decade period, prosecutorial misconduct resulted in dismissals, sentence reductions and reversals. Yet prosecutors only faced a range of disciplinary action in 44 of those cases.

In a more recent study by the Northern California Innocence Project, researchers concluded that while state courts found "explicit" evidence of prosecutorial misconduct in more than 700 cases between 1997 and 2009, only 159 were deemed "harmful." Even fewer were punished for misconduct.

Depending on the varying definitions of "harmful," people's lives are permanently altered because of careless mistakes and blatant cover-ups.

One solution that could make a dramatic difference would be a watchdog or whistle-blower system. Those in the best position to report prosecutorial misconduct are judges, defense attorneys and other working prosecutors whose voices and reputations carry weight as "officers of the court." This would also help prevent wrongful convictions.

In James' case, only days before his May 1981 trial started, prosecutors did not divulge pertinent information they had been given by Dallas investigators. The woman that James loved last had been seen at a convenience store getting into a car with three men. James Woodard was not one of them.

Morton spent 25 years proclaiming his innocence after being sentenced for the murder of his wife. My darling James refused parole 12 times because he wanted his good name more than he craved a guilty freedom. But James and Morton also have something else in common.

Both Texas exonerees were featured on the CBS-TV news show "60 Minutes." During an interview with Scott Pelley, James inspired ordinary people around the world when he said, "A man has to stand for something."

I wish James were standing here with me now to see what is happening with Anderson as a result of the Morton case. This bittersweet moment gives me pause during a time that has proven quite challenging. October is James' birth month. But it will also mean marking the one-year anniversary of his death.

James Woodard died of a seizure last year in Dallas County Jail after being arrested at the scene of a traffic accident.

The Anderson inquiry and subsequent resignation is a wake-up call for rogue prosecutors and jurists who believe they can cut corners and play with a person's life. Texas, the law-and-order execution capital of the world, not only leads the nation in DNA exonerations, Dallas has had more than any single jurisdiction in the nation: 24 men and counting since 2001.

Thanks to the Michael Morton Act, signed into law earlier this year in Texas, it may be a little easier to penalize prosecutorial misconduct.

Testifying at the court of inquiry in Austin, Anderson blamed the "screwed-up" system of justice for Morton's wrongful conviction. Morton was in the courtroom. He is among a contingent of 49 innocent men exonerated in Texas by DNA evidence. They fully understand how rare it is that a district attorney - in any state and in modern legal times - is punished for wrongdoing.

Anderson faces 10 years and he could lose his law license. As the truth slowly but surely comes out, I reflect on the one thing that James will never have in common with Michael Morton: He did not live to marry his fiancée.

I am very happy for Morton and his new wife.

 Joyce King is the author of "Hate Crime: The Story of a Dragging in Jasper, Texas." She was the first non-lawyer to serve on the board of directors for the Innocence Project of Texas.

Torture on Death Row

The following report by Vincent Warren, Executive Director, Center for Constitutional Rights, was published on October 9, 2013 by the Huffington Post.

It is inhumane, fallible, expensive, and an ineffective crime deterrent. It is also no secret that the death penalty in the United States is carried out in a racially discriminatory manner. African Americans and Latinos make up over half the people on death row while comprising about a quarter of the U.S. population. Looking at the race of the victim, in the last 30 years, only 20 white on black murders have resulted in execution, compared with 261 black on white. You probably can't recall the last time the State of Louisiana executed a white person for a crime against an African American. That's because it last happened in 1752.

What remains largely unseen is how, beneath a misleading veneer of due process and legal protocol, thousands of death row inmates are often subject to conditions that constitute torture, sometimes for decades on end, while waiting to be executed or exonerated. These conditions, as much as the death penalty itself, constitute violations of established international human rights law as well as the constitutional right against cruel and unusual punishment.

In 1972, the Supreme Court struck down the death penalty, declaring that its application was so arbitrary as to be unconstitutional. Although many believed that this marked the end of capital punishment in the U.S., state legislatures responded by rewriting their death penalty laws in order to convince the Court that the death penalty could be made impartial and compatible with a basic concept of human dignity. In 1976, the Supreme Court ended the de facto moratorium on U.S. executions and, since then, has tried to delineate a "modern" death penalty by calling for a better appellate process and outlawing the penalty for certain offenses and categories of people, including juveniles and people with mental disabilities. Given that the standard for mental disability is non-existent, that line has been crossed many times.

But no constitutional window dressing can legitimize state-sponsored murder or humanize the system that administers it. More than three decades after the Supreme Court reversed its stance on capital punishment, conditions on death rows across the country remain nothing short of barbaric. The Court's demand for a better appellate process has mostly extended the time death row prisoners spend in these conditions -- thereby paradoxically deepening the human rights violations -- and research continues to show that race is the dominant factor in explaining who is sentenced to death in this country.

In May of this year, I traveled to Louisiana and California to document conditions of confinement on death row together with colleagues at the Center for Constitutional Rights, and Florence Bellivier, president of the World Coalition Against the Death Penalty, there representing the International Federation for Human Rights (FIDH) on the mission. California has the largest number of people on death row in the country and Louisiana is infamous for the harsh conditions prisoners suffer. Our findings are published here.

In Louisiana's notorious Angola prison, home to all men on death row in the state, those sentenced to death spend their final years locked in their cells alone for 23 hours each day. During summer, death row inmates are kept in their cells even though the heat index regularly exceeds 110 degrees. The prison does not provide them with clean ice or cool showers, but it does provide the public with tours of death row and the lethal injection table.

At night, in an effort to keep cool, the men at Angola sleep on the floor where they are exposed to fire ants. When they "misbehave," they are moved to cells in the hottest tiers. Men have lived up to 28 years on Louisiana's death row, and most spend at least a decade in these dehumanizing conditions waiting for court appeals to go through. That is their due process.

In California, where minorities make up 65 percent of death row, the wheels of justice turn so slowly that new death row inmates will spend approximately 20 years on death row, and some over 30. Others will spend decades locked inside their cells in solitary confinement for minor infractions committed years ago, without access to a telephone and without feeling the touch of a family member for the entire length of time in solitary. Their due process while on death row? Wait an average of 3-5 years before a lawyer is even appointed to appeal the sentence, then an additional 8-10 years following the conclusion of their appeal for another lawyer to be assigned to handle a state habeas petition. In the meantime, the stress and anxiety of not knowing when they will be executed or when they will even receive the assistance of a lawyer will cause severe mental anguish for long decades, and will lead some prisoners to commit suicide rather than endure the long waiting process ahead.

And that's a glimpse of what the "modern" death penalty in the U.S. looks like in two of the states that retain it. The Supreme Court tried to sanitize a brutal practice, but it is impossible to legitimize the indefensible. The only morally and legally tenable response to the death penalty is its complete abolition. Yet while we continue to work for that day, we must also work to address the human rights violations that send people, disproportionately people of color, to death row and then torture them there before the final act of killing.