Louisville Courier-Journal

Sunday, August 13, 2006
 
Baby shaking testimony barred
Kentucky judge's ruling is a first

By Andrew Wolfson
awolfson@courier-journal.com
The Courier-Journal

GREENUP, Ky. -- After 3-month-old Evan Galloway suddenly collapsed on Dec. 29, 2003, there were no bruises found on his body and no broken bones or other external signs of abuse.

But six months later, his father, Raymond Martin, 35, was indicted on an assault charge, accused of "excessively and violently shaking" his son by investigators who found Evan had the classic signs of shaken-baby syndrome -- bleeding in the brain and behind both eyes.

Since the syndrome was first observed in the early 1970s, doctors -- and police -- have assumed that if a child collapses or dies suddenly and bleeding is found inside the skull with no other injuries, severe shaking is the cause and the last person to care for him is to blame.

But when Martin's fate is decided in a Greenup Circuit courtroom in November, there likely will be no mention of shaken-baby syndrome.

In what experts say is the first such ruling in the nation, a Greenup Circuit Court judge has barred the prosecution from introducing expert testimony that a baby was injured by shaking, unless there is other evidence of abuse.

"To allow a physician to diagnose shaken-baby syndrome with … no other evidence of manifest injuries is to allow a physician to diagnose a legal conclusion," Judge Lewis Nicholls said.

Nicholls issued the same ruling in the case of another defendant, Christopher A. Davis, 27, who is charged with criminal abuse of his son, who was 4 months old when allegedly shaken in December 2004.

Both Davis and Martin have pleaded not guilty. Each faces five to 10 years in prison if convicted. Davis is scheduled for trial Nov. 13, a week after Martin.

Though the shaken-baby diagnosis is accepted by the American Academy of Pediatrics and the National Association of Medical Examiners, Nicholls said in his 24-page ruling in April that it hasn't been scientifically proven.

He cited biomechanical studies that have concluded it's impossible for an adult to shake an infant hard enough to cause the injuries used to diagnose the syndrome -- hemorrhaging behind both retinas and hematomas, or pools of blood, in the membranes of the brain.

In one of the studies he cited, college football players shaking lifelike models of 1-month-old babies couldn't generate the force necessary to cause brain injuries.

In part because of such findings, former Kentucky chief medical examiner Dr. George Nichols, once a fervent believer in the syndrome, now says he is persuaded that infants cannot suffer brain injuries by shaking alone. He also said autopsies he performed usually showed that the death of a child in such cases was actually caused by impact injuries.

Greenup Commonwealth's Attorney Cliff Duvall said he will try to proceed with the prosecutions of Martin and Davis, although if he's unable to present any expert testimony he will have to drop them both.

Nicholls' ruling isn't binding on other courts, but defense lawyers said it could influence other cases.

And child advocates -- including Dr. Allen Brenzel, a pediatrician and psychiatrist at the University of Kentucky who consults on abuse cases for the state Cabinet for Health and Family Services -- said it would be devastating if other courts adopt the same rule.

"It would interfere with our ability to protect kids," he said.

Unjust convictions?

Nichols, who as medical examiner from 1977 to 1997 testified for the prosecution in shaken-baby cases, last year announced at a meeting of public defenders that he would testify about his new conclusions for any offender previously convicted through his testimony.

"I guarantee there are people in prison who shouldn't be there," he said in an interview.

So far there have been no takers; the Department of Public Advocacy says it has only one shaken-baby case on appeal, and the science behind the diagnosis is not at issue.

The National Center on Shaken Baby Syndrome, based in Ogden, Utah, says that about 1,200 to 1,400 children a year in the United States are treated for shaking injuries, and about 25 to 30 percent of them die.

The Kentucky Cabinet for Health and Family Services doesn't track shaking injuries specifically but says seven deaths were attributed last year to the broader category of inflicted head injury.

Pediatric experts say the biomechanical models used in studies challenging the syndrome were not lifelike enough to produce valid results. And they say attacks on the diagnosis are orchestrated by defense lawyers to produce reasonable doubt for their clients.

The American Academy of Pediatrics says that violent shaking of a child, even if the head doesn't strike another surface, can cause the vessels around the brain to stretch and rupture. In a 2001 policy statement, the organization said that doesn't occur with short falls or seizures, and unless there is some other history to explain them, child abuse may be presumed.

Dr. Carole Jenny, a Brown University professor of pediatrics who is a member of the pediatric group's Committee on Child Abuse and Neglect, said she is so confident in that finding that she would convict a member of her own family based on it.

She said the syndrome can't be proved in controlled experiments because researchers can't shake real babies. But she said the diagnosis has been borne out by thousands of parents who have brought injured children to a hospital and told doctors what they did -- shook a child until the child collapsed in their arms.

Jenny said shaken-baby syndrome is the only explanation for massive brain injuries to infants who can't move -- or fall -- on their own.

"Kids' heads don't explode spontaneously," she said.

Diagnosis questioned

Evan Galloway had just gotten a clean bill of health from his pediatrician on the day that Martin agreed to watch him while his ex-wife was at work.

Martin told investigators later that when Evan awoke from a nap, he was limp and appeared to have had a seizure. He said he sprinkled water on the baby's face and shook him to rouse him.

Evan's brain swelling subsided in a couple of weeks, but he was left with crossed eyes and other impairments, according to court records.

At a hearing in March, Martin's public defender, Sam Weaver, tried to show the shaken-baby diagnosis isn't reliable enough evidence on which to send somebody to prison. He presented one expert, Dr. Ronald Uscinski, an associate professor of neurosurgery at Georgetown University who has lectured on the syndrome in England, Japan and the United States.

As recounted in Nicholls' order, Uscinski testified that the medical community went into a "frenzy," cautioning parents never to shake a child, after a doctor presented "largely circumstantial" evidence about the syndrome in 1974 in the journal PEDIATRICS.

Uscinski said the findings were supported by a study of rhesus monkeys that was flawed in part because the monkeys may have struck their heads on the apparatus that shook them.

And he testified that in 1987, University of Pennsylvania researchers, in a study on human models, found that even "vigorous shaking" was unlikely to cause fatal injuries.

Uscinski noted that another study published last year in Forensic Science International concluded that shaking alone would cause broken necks in infants before bleeding in the eyes and brain. He also testified that researchers have found that even seemingly innocuous events like falling off a bed or chair can later produce bleeding in the brain.

Appearing for the prosecution, Dr. Betty Spivack, a deputy Kentucky medical examiner who has published her own research on the syndrome, said that retinal hemorrhages have a much higher correlation with intentional, rather than accidental, head trauma.

But Nicholls -- who was a prosecutor before being elected to the district bench in 1984 and to circuit court in 1994 -- said hemorrhages behind the eyes don't prove that a child was shaken, and that a correlation doesn't prove cause and effect.

Research needed

During a recent visit to his home, Evan Galloway, who is nearly 3, smiled and chatted as he played with his toys. But he wears thick glasses to correct his vision, and his mother, Kelly Galloway, said he can't climb stairs and sometimes trips when he runs. She takes him for physical and developmental therapy several times a week.

His father has been released on bail but must stay away from Evan as a condition of release. Weaver said Martin would like to be reunited with his son; he said he directed him not to comment on the charge against him.

Meanwhile, experts say more research needs to be done on abusive head trauma, even as experts debate whether shaking alone can cause it.

Each case must be explored individually, said Dr. Joseph Prahlow, a forensic pathologist in South Bend, Ind., who is vice president of the National Association of Medical Examiners. "The key is to do as thorough an investigation as possible and not to jump to conclusions," he said.

Reporter Andrew Wolfson can be reached at (502) 582-7189.

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