The Exoneration of Drayton Witt
An Arizona father convicted of shaking his infant son to death can rebuild his life.
By Emily Bazelon|Wednesday, Oct. 31, 2012
The medical examiner, A.L. Mosley, ruled the death a homicide. Since Witt was the last person with Steven, he was charged with murder and convicted after a two-week trial in February 2002.
In the intervening 12 years, doctors have learned that ongoing medical problems like Steven’s can account for the retinal and subdural bleeding they used to assume was caused by shaking, or by shaking and blows to the head. So Witt’s appeal attracted a flurry of interest among the small group of doctors who testify for the defense in such cases. Most importantly, perhaps, medical examiner Mosley recanted.
“There is now no longer consensus in the medical community that the findings I reported in my autopsy report are reliable proof of SBS [shaken baby syndrome] or child abuse,” Mosley told the court.
“Steven had a complicated medical history, including unexplained neurological problems. He had no outward signs of abuse. If I were to testify today, I would state that I believe Steven’s death was likely the result of a natural disease process, not SBS.”
Witt also had on his side Norman Guthkelch, the 97-year-old pediatric neurosurgeon who helped come up with the shaken-baby syndrome diagnosis in 1971. Also Patrick Barnes, chief of pediatric neurology at Stanford University who testified against Louise Woodward, the English au pair tried in 1997 for the murder of an 8-month-old baby in her care. A decade later, Barnes reversed his position in that case, and he has been skeptical of many shaken-baby prosecutions since then.
As Richard Ruelas of the Arizona Republic pointed out in an excellent article about Witt’s case, it’s the second recent setback for Maricopa County prosecutors in a shaken-baby case. In February 2011, the 1998 murder conviction of Armando Castillo was overturned in the death of toddler Steve Young Jr., his girlfriend’s child. When prosecutors said they would retry him, Castillo pleaded guilty to a lesser charge. “Maricopa County Attorney Bill Montgomery said that his office still believes that Witt was responsible for the death” of Steven, Ruelas wrote in September. But with the judge’s order this week, Witt and Steven’s mother can get on with rebuilding their lives. (They have since married.)
I started writing about the questions surrounding shaken-baby cases almost two years ago. Now, as then, many pediatricians and prosecutors believe that in many cases in which babies have unexplained head trauma, abuse by shaking or impact is the cause. Across the country, between 1,200 and 1,400 children, most of them infants, sustain head injuries attributed to abuse each year. Much of the time, external injuries—cuts, bruises, burns, fractures—leave behind telltale marks of the abuse. The much harder subset are the cases in which there are no external injuries, prompting a difficult debate over whether abuse is the only plausible cause of the baby’s internal retinal and subdural bleeding. And the flimsiest group of all are the old ones in which the medical consensus that supported conviction has since fallen apart, such as Witt’s case or that of Shirley Ree Smith, a grandmother accused of shaking her grandson to death in California in 1996 and who was pardoned by Gov. Jerry Brown in April.
Numbers of prosecutions are difficult to come by, but the best estimate I’ve heard is about 200 shaken-baby cases a year. It’s not clear how many convictions are solid and how many should be reconsidered. What I can tell you is that the fight over this diagnosis will continue to be intense and unremitting. For prosecutors and for doctors who treat abused children, the prospect of adults getting away with doing awful harm to babies is appalling. At the same time, for doctors who are skeptical of the theory that shaking alone can cause these internal injuries and for the defense lawyers who think their clients have been wrongly accused, the idea that innocent people could be in prison is just as troubling. In the end, Drayton Witt and Shirley Ree Smith will look like the easy cases in a sea of harder ones.
Child Abuse Allegations