Thursday, May 5,2011
Caregiver or killer?
New research on shaken baby syndrome could set Pamela Jacobazzi free
By Patrick Yeagle
Something wasn’t right when Cynthia Czapski picked up her 10-month-old son, Matthew, from a Bartlett, Ill., day care on Aug. 11, 1994. The child seemed to be sleeping, but she couldn’t wake him up. Matthew was taken to the emergency room and then to another hospital, where doctors worked to relieve bleeding and swelling in his brain. He never woke up, remaining essentially comatose for 16 months before dying on Dec. 19, 1995.
The assumption from the start was shaken baby syndrome or “SBS,” a condition characterized by a “triad” of symptoms – bleeding and swelling of the brain and retinal bleeding, widely attributed to violent shaking of an infant. The last person to watch Matthew Czapski was Pamela Jacobazzi, then a 39-year-old day care provider in Bartlett, west of Chicago near Elgin, who had just started watching the child eight days earlier. Naturally, Jacobazzi became the main suspect, although no one actually saw her shake Matthew.
During her trial, Jacobazzi denied shaking the baby, but her only real defense was the assertion that Matthew’s injuries could have been caused when he fell forward from a sitting position on the kitchen floor and hit his head on the tile, or from a bump to the head sustained while he was playing with other children at the day care.
Jacobazzi, now 56, was tried and convicted of first degree murder in a DuPage County court in 1999 and sentenced to 32 years in prison, based on the testimony of the prosecution’s nine expert medical witnesses, who told jurors Matthew’s death could only have been caused by violent shaking that must have occurred while the child was in Jacobazzi’s custody. Jacobazzi has spent the past 11 years in Lincoln Correctional Facility, the all-female state prison 30 miles northeast of Springfield.
What seemed to prosecutors and the Czapski family like a straightforward case of child abuse seems like a miscarriage of justice to Jacobazzi’s defense attorney, Anthony Sassan of Crystal Lake, who says he genuinely believes Jacobazzi is innocent. He describes her as “about four feet, eleven inches tall, maybe about 115 pounds soaking wet.
“She is one of the calmest, most polite, pleasant persons that you’d ever want to meet,” he says. “Even when I’ve had to deliver bad news to her, in the times that I’ve met her, I’ve never seen her come close to losing her temper or getting riled up…just a very, very, very nice lady.”
None of the other children in Jacobazzi’s care showed any indications of child abuse, Sassan says, and Matthew Czapski had numerous pre-existing medical conditions that could have caused his death. Sassan is working on Jacobazzi’s third attempt at securing a retrial, and he’s getting some extra help this time.
The Downstate Illinois Innocence Project – based at the University of Illinois Springfield – has taken on Jacobazzi’s case and will work with Sassan to reinvestigate the case and gather new evidence. The project is celebrating its 10th anniversary on May 16, and a large federal grant has allowed them to hire an in-house attorney for the first time.
“I feel this is a case where she is actually innocent,” says Bill Clutter, a Springfield-based private investigator and founding member of the Downstate Illinois Innocence Project. “There’s medical evidence that would have changed the outcome of the jury verdict.”
Jacobazzi’s case is part of a national trend in which people accused of killing infants are challenging in court old assumptions about shaken baby syndrome. While some advocates against child abuse and even the federal Centers for Disease Control and Prevention say SBS (and the more inclusive “abusive head trauma”) account for three to four cases of child brain injury every day in the United States, critics of SBS say the condition is a creation of the legal system, developed without reliable medical research, as a misguided attack on child abuse.
Deborah Tuerkheimer, a professor at DePaul University College of Law in Chicago, estimates that about 200 people in the U.S. are convicted in SBS cases each year, adding that the legal system is slow to catch up to advances in the medical field, so court cases may not incorporate the most up-to-date information on SBS.
“…Dramatic changes [in medicine] have occurred since the 1990s, when the prosecution template emerged,” Tuerkheimer writes in a recent article titled “Science-Dependent Prosecution and the Problem of Epistemic Contingency: A Study of Shaken Baby Syndrome,” published in the Alabama Law Review. She says the science surrounding SBS has “decisively evolved,” and the “large and highly significant areas of consensus surrounding SBS have shifted.”
Though medical experts once commonly agreed on SBS in the 1990s, there are now legitimate challenges to the idea that shaking a baby is the only way the infamous “triad” of injuries can occur, Tuerkheimer notes. Despite that shift, she says the legal community – particularly prosecutors – have largely persisted in outdated views of SBS.
Jacobazzi’s trial occurred before the shift in medical understanding that Tuerkheimer describes, so the testimony from the expert witnesses in her trial may differ from that of current-day expert witnesses.
Jacobazzi’s attempts to get a new trial revolve around evidence known as the Nadelman records, named after Matthew Czapski’s pediatrician. The records show Matthew had sickle cell trait and abnormal hemoglobin, along with chronic bouts of infection, fever, anemia and dehydration. Additionally, the records show Matthew had a disproportionately large head indicative of external hydrocephalus – a condition in which the space around the brain is enlarged and filled with spinal fluid, often leading to increased pressure on the brain. To Sassan and two new expert medical witnesses recruited for the defense, those records suggest that Matthew’s prior medical problems could have caused his death without a violent force – or any force at all.
Jacobazzi claims her lead trial attorney, Anthony Montemurro of Chicago, failed to provide those records to the defense’s lone expert medical witness and didn’t use the records as part of her defense strategy, leaving unchallenged the prosecution’s assertion that Matthew was perfectly healthy when he arrived at Jacobazzi’s day care. If Jacobazzi can convince the circuit court that the absence of that evidence affected the outcome of her trial, she could get a second chance to assert her innocence.
Jacobazzi appealed her conviction to the Second District Appellate Court of Illinois, which sent the case back to the original trial court with instructions to hash out her claim of “ineffective assistance of counsel.” The lower court again ruled against Jacobazzi, saying Montemurro actually did provide the Nadelman records to the expert witness. Jacobazzi appealed again, this time arguing that the circuit court didn’t address whether the absence of the Nadelman records as evidence affected the outcome of her trial – the second requirement of a legal device known as the “Strickland test” that provides the legal precedent for proving ineffective counsel. The appellate court admitted in its most recent ruling on Nov. 17, 2009, that it had given unclear instructions to the lower court and sent the case back with clarifications.
Bill Clutter with the Innocence Project draws parallels between Jacobazzi’s case and a recently-dismissed Wisconsin case that happened around the same time. Audrey Edmunds of Waunakee, Wis., was accused in 1995 of shaking and killing six-month-old Natalie Beard at the day care she ran in her home. As with Jacobazzi’s case, no one saw Edmunds shake the baby, and there was no history of child abuse or outward signs of injury. For both women, the only evidence against them at trial was that of medical experts who concluded they must have been responsible. And like Jacobazzi, Edmunds spent several years in prison before the local chapter of the Innocence Project got involved.
Edmunds’ big break came when one of the expert witnesses against her realized that he might have misjudged the situation. Pathologist Robert Huntington III performed Natalie Beard’s autopsy and testified at Edmunds’ trial that it was “highly probable” the child was injured shortly before Edmunds reported finding her apparently choking on a bottle of baby formula.
Three years later, Huntington handled a similar autopsy, in which a child had been taken to the hospital with a description of being “clingy” and “fussy” but still responsive – the same description given to Natalie Beard by her parents when she was dropped off at Edmunds’ day care.
The child was in the hospital for 15 hours before doctors detected any brain injury in the child, leading Huntington to believe that there could be a delay in the appearance of SBS symptoms. That revelation caused him to doubt his testimony that the last person to have watched a child who dies from SBS symptoms must be responsible.
Huntington later recanted his testimony against Edmunds in an affidavit, which turned out to be crucial in securing her release.
Huntington’s reversal puts him in the company of a growing number of medical researchers who are rethinking suspected SBS cases. Some of those researchers, such as Dr. John Plunkett, a retired pathologist from Minnesota, are questioning the very principles and existence of SBS. Plunkett has testified in numerous SBS cases, and his research may act as a model for Jacobazzi’s defense team if she wins a retrial.
“As far as I’m concerned, every goddamn conviction in this country over the past 25 years which is based on testimony regarding shaking has to be overturned,” Plunkett says emphatically. “It [shaken baby syndrome] doesn’t exist. It has never existed.”
Plunkett says any number of other factors, such as a short fall or a pre-existing medical condition, can cause the triad of SBS symptoms – bleeding and swelling of the brain and retinal bleeding. More importantly, he says, his and others’ research into the very mechanics of human injuries shows that brain injury cannot be caused by shaking a baby. He says the force generated by shaking is simply insufficient to cause the symptoms associated with SBS.
“Despite the fact that we have 30 years of medical testimony that it is a valid medical diagnosis, it is clear that you cannot cause brain injury by shaking a child,” he says. “You may very well be able to cause neck damage, but you cannot cause brain damage.”
Plunkett says a “lucid interval” – a period between when an injury occurs and when symptoms manifest – could explain why seemingly healthy babies can suddenly become ill, much like in the case Robert Huntington witnessed after testifying against Audrey Edmunds in Wisconsin.
Plunkett knows his statements may raise some eyebrows. He has taken mountains of criticism from the medical community, he says, including being accused in 2005 of making false statements as an expert medical witness in an Oregon SBS case. Two counts against Plunkett were dismissed before the trial began, and he was acquitted of the remaining two.
“A dozen years ago, I was the lone wolf,” Plunkett says, referring to his early criticism of SBS. “I was treated like the idiot fringe. The worst part of it is as soon as anybody questions the validity of this diagnosis, they are accused of being a defender of child abusers. It is simply not true for any of us. We all understand that child abuse occurs, but we also understand the importance of scientific integrity.”
Is this a question already settled within the medical community? One expert in Springfield is hesitant to choose one side or the other.
Dr. Tracey Lower, an assistant professor of pediatrics at Southern Illinois University School of Medicine and a staff member at St. John’s Children’s Hospital, says the science of medicine is constantly changing.
“There’s an evolution in what we know and what we’re learning about head injuries in children,” she says, adding that shaken baby syndrome first arose as a concept during the 1940s, before MRIs and similar medical procedures were developed to detect internal injuries. The historical record is largely silent on SBS during the 1950s, she says, until reports of child abuse began to emerge and be taken more seriously in the 1960s.
“There were a lot of assumptions, and I think what we’ve learned over the last five to ten years is that most of the time, the extreme injuries we see are a combination of mechanical forces,” she continues. “I certainly believe there can be severe injuries just by shaking, but usually abusive head trauma includes impact and other substantial injuries.”
Lower, who is also involved with Prevent Child Abuse Illinois, a statewide advocacy organization, says a physician’s primary obligation is caring for the children they treat, rather than investigating suspicions of child abuse themselves.
Plunkett takes that idea a step further. He says members of the medical community who don’t understand how force affects the human body should not even be allowed to testify about SBS in court cases.
“The pediatricians, pathologists and ophthalmologists…need to understand the mechanics of injury,” he says. “They need to understand biomechanics, applications of the principles of motion to human injury, before they open their mouths. If you ask these folks to define force for you, ask them to tell you Newton’s three laws, ask them to define acceleration – you will be shocked at the responses. If you don’t understand the mechanics of injury, I don’t think you should be allowed to be giving testimony on these issues.”
Jacobazzi’s first opportunity for parole is set for 2015, and if the pace of the case so far is any indicator of future progress, she could wind up serving the majority of her sentence before she gets another chance to assert her innocence. Her next hearing is scheduled for May 12.
“If you really get to know her, you would realize that this is not a person who loses her temper, loses her head or would do anything like this to any of the kids,” Sassan says. “It’s a shame. It’s horrible that she’s in this circumstance. As a criminal defense attorney, there are few people you represent that you can say, ‘I really think they’re completely innocent of anything.’ This is somebody who I think is really symbolic of the type of person that can get wrapped up in this theory [of SBS] that shouldn’t.”
Contact Patrick Yeagle at firstname.lastname@example.org
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