For the past 14 years, Shirley Ree Smith has fought a Los Angeles County assault conviction related to the death of her infant grandson. She was found guilty based on the testimony of doctors who said the boy had died after Smith violently shook him, causing shaken baby syndrome (SBS). But last fall, the Ninth Circuit reaffirmed a 2006 reversal of her conviction and concluded that the trial evidence was insufficient to prove SBS--and thus guilt--in Smith's case.
Some recent appeals involving similar charges argue that the medical theory behind these convictions is itself unproven. Challenging SBS succeeded in one high-profile case, and now the syndrome is getting a second look in both medical journals and the courts.
SBS emerged in the 1970s to explain a few puzzling cases of bleeding and swelling in infant brains. In a typical scenario, child advocates say, a caretaker shakes and possibly throws a crying baby onto a soft surface. The assault usually leaves no signs of violence but is thought to trigger cranial bleeding that can lead to death or permanent brain damage. An estimated 200 caretakers a year are convicted of crimes linked to baby shaking in the United States.
The diagnosis landed on the legal map with the 1997 trial of the "Boston nanny," a 19-year-old au pair convicted of second-degree murder after an eight-month-old in her care collapsed. Last October, national media attention focused again on SBS when a Florida woman admitted shaking her baby to death after the child's crying interrupted her computer game.
But an ongoing debate around the diagnosis has intensified in recent years, prompted in part by a 2008 conviction reversal won by the Wisconsin Innocence Project for child-care provider Audrey Edmunds. In that case, the state appeals court wrote that "a shift in mainstream medical opinion" since Edmunds's 1997 trial casts doubt on her guilt (State v. Edmunds, 308 Wis. 2d 374, 391 (2008)). A 2009 analysis of SBS-related convictions, including the Edmunds case, by professor Deborah Tuerkheimer at DePaul University College of Law in Chicago noted that even though the "scientific underpinnings of SBS have crumbled" after revelations of flawed research methodology, the courts have not caught up.
Indeed, a chorus of dissenters is now questioning classic SBS theory. Dr. Patrick Barnes, for example, heads the pediatric neuroradiology department at Stanford University's Louise Salter Packard Children's Hospital, and he was an expert witness for the prosecution in the Boston nanny trial. Now he testifies more often for the defense and contends that symptoms attributed to SBS usually result not from abuse but from metabolic or bleeding disorders, infections, birth injuries, or vitamin deficiencies, and that the symptoms can emerge over time.
Most child-abuse experts, however, stand by SBS as a real, lethal threat. "I'm inspired by the quality of the research that supports SBS," said Dr. Robert Block, president-elect of the American Academy of Pediatrics, in a September address at the 2010 National Center on SBS conference. (The academy now refers to the phenomenon as "abusive head trauma," since such injuries also can result from causes other than shaking.)
"Both medical research and the experience of physicians and forensic pathologists over decades [have] established that violent shaking of an infant may cause brain injury and fatal brain injury," says Kathryn Gayle, a deputy district attorney in San Diego whose office sees its fair share of SBS cases.
The debate around SBS will certainly continue, especially now that criminal defense attorneys are aware of the medical debate around the syndrome. Justin Brooks, executive director of the California Innocence Project, says his team, like others across the country, is currently reviewing convictions where SBS was alleged. "What we now know about SBS is contrary to what experts told us in the past," Brooks says. "These cases must be examined and these people freed."