Watchdog report: Shaken-baby science doubts grow
Debate stirs questions about 2001 conviction of Greece woman
Jun. 30, 2013
Written by Steve Orr
Eleven years ago, a Greece day-care provider was convicted of murder after the death of a 2½-year-old child who suffered a grievous head injury in the provider’s home.
René Bailey, now 53 years old, remains in state prison.
But a pro bono lawyer is out to see her exonerated. The lawyer, Adele Bernhard, has filed a lengthy legal challenge to Bailey’s conviction, hoping to persuade a Monroe County Court judge not just that Bailey is innocent of the crime but that no crime was even committed that fateful day in June 2001.
Bernhard says new evidence, including a startling eyewitness account that came to light after Bailey’s trial, proves little Brittney Sheets’ death was accidental.
“I received a letter from René ... and I was immediately intrigued. I thought this was the sort of case where something could have gone wrong,” said Bernhard, a law professor at Pace University in Westchester County.
At the heart of René Bailey’s conviction, and Bernhard’s legal challenge, is shaken-baby syndrome, the popular term used to describe brain damage suffered by an infant or toddler who is violently shaken by an adult.
Over the last 30 years, shaken-baby syndrome has come to be considered one of the most heinous forms of child abuse. Dozens of people in the Rochester area, and thousands nationwide, have been prosecuted for harming or killing small children in this way.
The scales of justice in these cases often tip on the word of doctors who say they can discern that intentional shaking took place by the nature of the injuries suffered by the young victims.
Many physicians and prosecutors remain confident in those judgments, but some critics say those doctors can be wrong. They claim innocent people have been sent to prison.
René Bailey is one of them, Bernhard believes.
Invoking a state law that allows a defendant to challenge a conviction on the basis of newly discovered evidence, Bernhard has joined what amounts to a full-scale assault on the medical underpinnings of shaken-baby syndrome.
Post-conviction appeals not unlike Bailey’s are being pursued in other states, and in a small but growing number of cases, defendants have been freed or granted new trials.
In New York, where challenging established forensic science in court is especially difficult, none of a handful of similar appeals has succeeded, Bernhard said.
She believes hers could be the first. Bernhard argues that Brittney died after jumping from a chair in Bailey’s home day care and hitting her head. She also argues that the three doctors who testified that Bailey must have shaken Sheets to death were relying on medical knowledge that has since been proved wrong.
“My feeling in René’s case is the verdict is based on science which is invalid,” said Bernhard, whose challenge also asserts Bailey recieved ineffective legal representation at her trial.
In its response to Bernhard’s legal filing, which with exhibits is nearly 350 pages in length, the Monroe County District Attorney’s Office asserts that there is no justification for overturning Bailey’s murder conviction.
The 25-page response defends the medical conclusions used to convict Bailey, and says much of the new science cited by Bernhard either isn’t new or isn’t persuasive. The document also asserts the challenge is legally deficient and re-airs trial evidence about inconsistencies in Bailey’s statements after the incident.
“There’s absolutely nothing new about what they're bringing now,” said First Assistant District Attorney Kelly Wolford. “To have the massive amount of injuries that this child had to her brain, it’s quite absurd to think this could be suffered by a (short) fall to a carpeted floor.”
Bailey’s challenge was assigned to County Court Judge James Piampiano, who could rule on the basis of the written material submitted by the parties or order a hearing and oral arguments.
Piampiano said recently that he would decide over the next month or two whether a hearing is warranted.
His decision — to vacate Bailey’s conviction or leave her in prison until at least January 2017, when she first becomes eligible for parole — would not have any precedent value for other New Yorkers in prison on shaken-baby charges.
Among them are at least 12 people from the Rochester area.
Deaths of babies
The term “shaken-baby syndrome” entered the public lexicon in Rochester with a horrible clustering of abuse cases in 1991. Four infants or toddlers died and a fifth was permanently injured in the space of seven months.
Beyond question, adults injure or kill infants and toddlers through physical abuse — by hitting them, throwing them down, burning them or shaking them with great violence.
Defendants often admit to their conduct and say they lost their temper when the child wouldn’t stop crying. Sometimes another adult is present to testify to what happened.
The National Center on Shaken Baby Syndrome says about 1,300 children annually suffer severe or fatal inflicted head trauma, mainly from shaking or hitting.
A pediatric child abuse expert at Strong Memorial Hospital said it sees eight to 12 cases a year locally in which a child suffered a head injury and abuse is a possible cause.
If a suspect denies having done anything wrong and there are no gross signs of abuse — no broken limbs, fractured skull, dreadful bruises — the circumstances may evolve into a shaken-baby case. These are unusual crimes. There almost never are any witnesses, and rarely any physical evidence. Proof that a crime was committed derives from the conclusions drawn by physicians who say the victim suffered internal injuries that could only have been caused by an abusive adult.
The thinking behind these legal conclusions arose in the late 1960s and 1970s when physicians noted the damage to the brain of a small child that can accrue from a whiplash effect — that is, from the brain being propelled back and forth inside the skull.
If forceful enough, it was thought, such movement can break blood vessels and cause bruising and swelling of the brain, which in turn can lead to serious impairment of brain function or death.
It was widely accepted that shaken-baby conduct was likely to blame if a small child exhibited brain swelling in the absence of significant external injury or a clearly diagnosed illness.
Three specific injuries — bleeding in the retinas and in tissue surrounding the brain, and swelling of the brain — became so linked to shaken-baby syndrome that they became known in medical and criminal justice circles as simply “the triad.”
It also was widely believed that these symptoms could not result from accidents such as short-distance falls.
Further, it was argued that symptoms appeared shortly after the abuse, so the adult who was caring for the child when the injury manifested itself often became the prime suspect.
That describes Bailey, who was the only adult present when little Brittney became unresponsive one afternoon. The child died at Strong Memorial Hospital the following day, and Bailey was arrested the day after that.
Brittney’s mother, Jeanne, said she was aware of Bailey’s legal action but had no comment for this story. In the past, family members have expressed confidence that Bailey was guilty.
Bailey’s protestations at the time of her arrest that the girl had fallen accidentally were brushed aside, for physicians had alerted police to what they believed were signs of abuse. All three of the common symptoms were present.
Later, at her trial, an assistant Monroe County medical examiner testified that abusive shaking was likely responsible for Brittney’s death. The only other thing that could have caused her injuries were “a tornado or some electrocution or some device … like a centrifuge.”
Today, some physicians, biomechanists and lawyers claim that statements such as that are unsupported, and say shaken-baby syndrome is based on theories that were never fully proved.
They believe research over the last 10-plus years has shown that the triad of symptoms can be caused by factors other than shaking a child — falls, accidental trauma, illness or disease.
“Is it a good thing to do to a baby? Absolutely not. Could it cause some sort of sub-lethal injury? I see no reason why it couldn’t,” said Dr. Peter Stephens, a North Carolina forensic pathologist who is one of the best-known critics of traditional shaken-baby science. “But the question is, can shaking alone kill infants? I don’t know.”
Stephens is one of six medical experts who prepared affidavits in support of Bailey’s action.
John Lloyd, an ergonomics researcher for the Veterans Administration in Florida, was asked several years ago by a colleague to look into the physics of shaken-baby syndrome.
He has conducted a series of experiments using crash-test manikins and sensor-laden dolls to measure the amount of force that an adult can impart.
“The results were just so far below injury thresholds that clearly, my position was that shaking was a benign event that could not cause this type of injuries in a normal infant,” Lloyd said.
Sandra Hennessy says she was flabbergasted when she realized what was happening in her Gates home: A little boy had begun to re-enact the events that led to Brittney’s death.
One of her charges at her in-home day care was a little boy named Cameron, who had come to Hennessy’s house after his previous day-care provider — René Bailey — had been arrested and gone out of business.
After a time, Cameron began to engage in a role-playing game with an imaginary Brittney and a stuffed animal he believed had healing powers, said Hennessy, who now lives in Tennessee.
“He would talk to the little girl, Brittney, as if she were there. He would say ‘Jump, Brittney, I know you can do it.’ Then he would run across the playroom and pick up his stuffed blue pig and run back across the room and place it next to his friend Brittney where she was lying,” Hennessy recalled. “He did it the same way every time. He did it a lot.”
Hennessy, who knew of Bailey’s case from news reports, recognized what he was doing and eventually sent Bailey a letter in prison, suggesting Cameron’s behavior was verification of Bailey’s version of events.
Bailey had told Greece police that she had been in a bathroom a few feet from the children when she heard Cameron say, “I know you can do it, Brittney.” She claimed she then heard two bangs and emerged from the bathroom to find the little girl lying on the floor.
Cameron, who was 2½ years old then, told his parents that evening that Brittney had jumped from a chair, according to police reports. But a judge ruled he was too young to provide testimony at the trial.
His father, whose name is being withheld by the Democrat and Chronicle to avoid identifying Cameron, declined to comment for this story.
Bailey’s legal filing includes an affidavit from Hennessy and one from a child psychologist in a bid to have the woman’s observations about Cameron’s behavior considered new evidence of her innocence.
The District Attorney’s Office discounts the affidavits on legal and practical grounds, and notes the idea that Brittney was hurt in a fall was aired at her trial.
A defense medical expert had testified, in fact, that a fall or stumbling jump from an 18-inch-high chair and resulting blow to the head on a carpeted floor could have been responsible. Testimony showed that Brittney had jumped from a couch at Bailey’s day care months earlier and hit her head hard enough to require a hospital visit.
But the prosecution’s experts testified otherwise. One pediatrician testified that a fall from a distance less than 10 feet had “never” caused a serious brain injury in a child.
That testimony, which was in line with the thinking of most physicians, carried the day with the jury.
To some extent, the thinking on falls has changed. “It is now beyond dispute that short-distance falls, like that described in this case, can kill,” Bernhard wrote in her legal filing in the case.
Several scientific papers have documented this. The first of them may have been a 2001 paper documenting 18 fatal falls from heights as low as a foot or two, including one that was captured on videotape.
“At that point, it was almost like a light bulb went off,” Stephens said.
While short-distance falls can be fatal, the question remains how often this happens.
“Kids fall a lot,” said Dr. Ann Lenane, an associate professor of pediatrics at University of Rochester Medical Center who was not involved in the Bailey case and spoke only about general issues.
“Our common-sense experience leads us to believe it would be very unusual — not impossible but very unusual — for the normal household falls, the short falls, to lead to serious injury. Studies looking at childhood falls confirm this.”
In 2009, the American Academy of Pediatrics recommended “shaken-baby syndrome” be set aside for “abusive head trauma,” a broader term that encompasses baby-shaking but also other forms of child abuse that leave children with neurological problems.
The academy also urged its members to consider all possibilities before coming to a conclusion.
Lenane said it is customary to do that, and that the notion that doctors make snap judgments about shaken babies is just wrong.
“I think it was always the case that doctors would look at the patient, think of the diagnoses that could be responsible for the child’s condition, do the tests for those diagnoses and try to come up with the correct diagnosis,” she said. “In my time in the field it was never like a slam dunk as far as ‘You’ve got A, you’ve got B, you’ve got C, you’ve got shaken-baby.’ It was never like that.”
Ontario County District Attorney Michael Tantillo, whose office has prosecuted several shaken-baby cases, said doctors who have testified for him say they are ultra-cautious. “They know it’s a devastating diagnosis to issue. So they want to rule out every possible other theory before they do that,” he said.
Tantillo also said critics like Stephens who challenge shaken-baby syndrome’s scientific underpinnings are “an extremely small minority voice.
“There is a tremendous amount of peer-reviewed medical literature that supports the concept of shaken-baby injuries and very, very, very little if any peer-reviewed literature that contradicts it,” he said
Stephens said he thinks new opinions about shaken-baby syndrome are taking hold, if slowly.
“Obviously, when you have a lot of doctors in the county, the light doesn’t go on for everybody at the same time. Now, it’s 50-50,” Stephens said, estimating the proportion of physicians who accept the newer findings.
Dr. Caroline Dignan, the Monroe County medical examiner, said she believes the triad of symptoms can be evidence of shaken-baby syndrome — but that alternative explanations should be considered as well.
“I think there’s been a big push not just in the forensics community but also in the medical community to understand the mechanisms of the injuries,” she said.
Bernhard is optimistic.
“In the medical community, they’re already trying to think about what they can do to differentiate cases where there has been child abuse from cases where there hasn’t been,” she said. “I think that everyone’s paying attention and trying to be more intelligent in their approach to their material.”
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