Time for a change in ‘shaken baby’ investigations

The following editorial was published by the Mat-Su Valley Frontiersman (Alaska) on July 6, 2015.

From the abundant offerings of TV crime dramas it is obvious that the law enforcement community has benefited from the advancements in modern science, such as DNA evidence.

But in at least one area, law enforcement and the rest of the justice system seem to be lagging.

Introduced as a theory in the 1960s, for decades shaken-baby deaths were identified by a triad of symptoms — hemorrhaging in the eyes, subdural hematoma and a swollen brain — that were viewed as iron-clad medical evidence a child died of abuse.

But by 2006, medical experts around the world began questioning the symptoms as conclusive. Defendants began appealing guilty verdicts and winning based on flawed forensic findings.

Child forensic pathology expert Dr. Janice Ophoven has testified in several Alaska trials where people were accused of the shaking death of a child.

Failing to use board-certified forensic pathologists to review the forensic evidence, and failing to recognize that other medical conditions also present this trio of symptoms is causing innocent Alaskans to be tried, convicted and receive long prison sentences, she says.

“This is one of the worst miscarriage of justice cases I’ve had, but it is not the only case like it in Alaska,” Ophoven said of the Clayton Allison trial and conviction in his daughter’s death. Allison is set for sentencing Wednesday.

According to a review of shaken-baby cases by Deborah Tuerkheimer, a DePaul University law professor and author of the just-published book, “Flawed Convictions: “Shaken Baby Syndrome and the Inertia of Injustice,” 95 percent of people charged in shaken-baby deaths are convicted, and of those, 90 percent receive life sentences.

The prosecution is seeking a 40-year sentence — 30 to serve and 10 years of probation — for Clayton Allison. An appeal is planned, but that process will likely take years.

On Sept. 24, 2008, Clayton told police his daughter, Jocelynn, accidentally tumbled down eight carpeted steps, then struck her head on a chair with a file-box on top. She died of her injuries a few hours later at Providence Alaska Medical Center in Anchorage.

But the jury in the Allison case never heard about the significance of the chair or the heavy box of files on top of it. Jurors heard about the child’s medical condition. They knew the baby was diagnosed with hypermobility.

But the judge ruled no one could tell jurors that Jocelynn’s mother had been diagnosed with a connective tissue disease — Ehlers-Danlos Syndrome — after her death, and that it could have a direct effect on the injuries she sustained.

Shaken-baby cases often rely on medical evidence to establish a crime occurred. But in Alaska, no one involved in the collection of evidence in shaken-baby cases is trained as a neuroscientist or a pathologist. Some involved are medical doctors with years of family medicine or pediatric experience.

But that’s not the equivalent to completing the rigorous training required to become a board-certified forensic pathologist. That matters because at the end of the day, their review of the evidence will be used in legal proceedings that could send innocent Alaskans to prison for decades.

Once a shaken-baby investigation begins, it’s very hard to derail, Ophoven said.

“Their findings carry enormous weight within the criminal justice system,” she said of doctors like Dr. Cathy Baldwin-Johnson of The Children’s Place in Wasilla.

Baldwin-Johnson testified during Allison’s five-week trial that when she sees no other medical explanation for the injuries, child abuse is the answer she turns to.

But Ophoven, a pathologist, noted that falls are the No. 1 cause of child deaths, and that Jocelynn’s fall that September could have resulted in her death, especially given her existing medical diagnosis.

The Allison family says they plan to appeal Clayton’s conviction. But that will take years.

For Alaskans, this is an opportunity to call for reform to the process law enforcement and prosecutors use to investigate possible shaken-baby deaths.

Only board-certified forensic pathologists should be used to review medical evidence in these cases, which depend largely on forensic evidence to prove a crime occurred. There is too much at stake to do less.