WEBVTT - #172 Wrongful Conviction: Junk Science - Shaken Baby Syndrome 0:00:00.600 --> 0:00:03.840 At six pm, and the usual controlled cast of the 0:00:03.920 --> 0:00:07.680 day is finally wound down. Most of your daylight hours 0:00:07.840 --> 0:00:11.080 are filled with the sounds of giggling kids and, yes, 0:00:11.160 --> 0:00:15.560 the occasional whining and tantrums. You've been a licensed childcare 0:00:15.600 --> 0:00:18.400 provider for the past fifteen years and you run a 0:00:18.480 --> 0:00:22.360 daycare center out of your house. You wave goodbye to 0:00:22.400 --> 0:00:24.640 the last toddler to get picked up by his dad 0:00:24.680 --> 0:00:28.640 from your doorway, then you head back inside. Your two 0:00:28.720 --> 0:00:32.000 middle schoolers are sitting at the kitchen table doing their homework, 0:00:32.560 --> 0:00:35.000 so you take advantage of the brief moment of quiet 0:00:35.159 --> 0:00:39.280 to start getting dinner ready. But the quiet doesn't last 0:00:39.280 --> 0:00:42.520 more than a few minutes. There's a knock on the door. 0:00:43.520 --> 0:00:45.680 You're sure it's one of the kid's parents picking up 0:00:45.680 --> 0:00:49.720 a missing toy, but your heart sinks to your stomach 0:00:50.159 --> 0:00:56.400 when you see that it's the police. You quickly open 0:00:56.480 --> 0:00:59.320 the door, worry that something might have happened to your husband, 0:00:59.400 --> 0:01:02.600 who hasn't gotten home from work yet. Hi, there is 0:01:02.760 --> 0:01:06.520 everything okay? You ask They ask you your name, and 0:01:06.560 --> 0:01:09.240 they say, ma'am, do you run a daycare out of 0:01:09.280 --> 0:01:09.720 this house? 0:01:11.200 --> 0:01:11.440 Yes? 0:01:11.520 --> 0:01:15.200 I do. What seems to be the problem you'll need 0:01:15.240 --> 0:01:19.040 to come with us. What do you mean I can 0:01:19.200 --> 0:01:22.400 right now. I'm getting dinner ready for my kids. Ma'am. 0:01:22.480 --> 0:01:24.520 You don't understand. You need to turn around and put 0:01:24.520 --> 0:01:28.000 your hands behind your back. You're under arrest. You'll feel 0:01:28.000 --> 0:01:33.039 the cold handcuffs tighten around your wrists. What is this 0:01:33.160 --> 0:01:36.920 all about. There's a child in your care name Maria. 0:01:37.240 --> 0:01:40.760 You know who Maria is, ma'am. She died from brain 0:01:40.840 --> 0:01:43.360 injuries after spending the day in your care. So I'm 0:01:43.360 --> 0:01:49.680 gonna read you your rights. You're speechless, Maria, that little 0:01:49.680 --> 0:01:52.840 girl who spent one session at your daycare months ago. 0:01:53.640 --> 0:01:57.200 You can't compute, but you're a mom, and so you 0:01:57.280 --> 0:01:59.440 leap into action for your kids. You don't want to 0:01:59.440 --> 0:02:02.120 scare them, so you try to prevent your voice from 0:02:02.120 --> 0:02:05.320 cracking as you call them over. You tell your fourteen 0:02:05.400 --> 0:02:09.000 year old look after your little brother. Call your dad, 0:02:09.480 --> 0:02:11.960 he'll be here soon. Tell him not to worry, and 0:02:12.040 --> 0:02:14.720 you don't worry. This is all going to work out. 0:02:15.800 --> 0:02:18.120 You put on a brave face for them, and you 0:02:18.200 --> 0:02:20.800 try not to panic as one of the officers pushes 0:02:20.840 --> 0:02:23.840 your head down in that classic move that leads a 0:02:23.880 --> 0:02:27.440 suspect into the back of a police car. Your world 0:02:27.520 --> 0:02:31.560 has turned upside down in an instant. As the police 0:02:31.600 --> 0:02:35.119 car pulls away from your house and down the street 0:02:35.639 --> 0:02:47.799 toward the county jail. You sit in jail before your 0:02:47.840 --> 0:02:50.640 trial and replay the events of the day. You watch 0:02:50.720 --> 0:02:55.200 Maria over and over again in your head. You were 0:02:55.240 --> 0:02:58.200 sitting on the carpet helping one of the little boys 0:02:58.280 --> 0:03:00.959 get a train rolling on a track when there was 0:03:01.000 --> 0:03:04.120 a knock at the door. You answered it and you 0:03:04.200 --> 0:03:06.560 saw a smiling baby in the arms of her mother. 0:03:07.919 --> 0:03:11.320 This must be Maria, you said, smiling at the toddler. 0:03:12.280 --> 0:03:14.639 You took Maria from her mother's arms and helped the 0:03:14.680 --> 0:03:17.440 little girl wave goodbye with her tiny hand while her 0:03:17.440 --> 0:03:21.680 mom pulled out of the driveway. Maria was happy and 0:03:21.760 --> 0:03:26.280 playful all day until about noon. She started crying, and 0:03:26.800 --> 0:03:30.400 you recognize that as the telltale sign of a tired baby. 0:03:31.320 --> 0:03:33.600 You put her down for a nap, and a few 0:03:33.600 --> 0:03:37.720 hours later Maria's mom came back. Maria was still sleeping. 0:03:38.640 --> 0:03:41.360 You watched her pick Maria up from the crib, trying 0:03:41.400 --> 0:03:44.880 not to wake her. Maria slept on her mom's shoulder 0:03:44.920 --> 0:03:47.520 the whole way to the car. You watched as they 0:03:47.560 --> 0:03:51.800 pulled out of the driveway. That's everything you can remember 0:03:51.840 --> 0:03:56.120 from that day, but that's not what happened. What you 0:03:56.280 --> 0:03:59.360 didn't know is that when Maria and her mother pulled 0:03:59.400 --> 0:04:02.240 up to their home home, Maria was slumped over in 0:04:02.320 --> 0:04:05.400 her car seat, her head almost in her lap, and 0:04:05.520 --> 0:04:10.080 she'd thrown up all over herself. Maria wouldn't wake up, 0:04:10.400 --> 0:04:12.320 so her mom called nine to one one and she 0:04:12.400 --> 0:04:15.600 was rushed to the hospital. The doctor said that the 0:04:15.640 --> 0:04:20.040 baby's brain was bleeding and swollen, and her blood sugar 0:04:20.160 --> 0:04:24.840 was high. The doctors frantically worked on her, trying to 0:04:24.880 --> 0:04:29.039 revive her, but eventually Maria was put on life support. 0:04:30.120 --> 0:04:35.600 She died about a week later. Approximately two months after that, 0:04:36.080 --> 0:04:38.880 the police showed up at your house and arrested you. 0:04:40.720 --> 0:04:44.200 Sitting in your jail cell, you're paralyzed by the horror 0:04:44.240 --> 0:04:48.360 of all this. One family lost their baby, and your 0:04:48.440 --> 0:04:51.440 kids are at home wondering if their mother will be 0:04:51.520 --> 0:04:58.599 around to watch them grow up. Now it's the day 0:04:58.640 --> 0:05:03.160 of your trial. Your lawyer doesn't dispute that bleeding and 0:05:03.200 --> 0:05:06.440 swelling in Maria's brain caused her death, but there was 0:05:06.520 --> 0:05:09.600 no evidence that it was caused by anything you did. 0:05:10.240 --> 0:05:13.960 There was no evidence whatsoever that you abused Maria in 0:05:14.040 --> 0:05:18.400 any way. She didn't have any broken bones, no injuries 0:05:18.400 --> 0:05:20.880 to her neck or spinal column or anything like that. 0:05:22.000 --> 0:05:25.320 And there was, in fact another explanation for Maria's injuries. 0:05:25.920 --> 0:05:28.400 When she had been admitted to the hospital, her blood 0:05:28.400 --> 0:05:31.560 sugar level was four times higher than what was considered 0:05:31.600 --> 0:05:35.120 to be normal, and so it was possible that Maria's 0:05:35.120 --> 0:05:38.320 brain injuries may have been caused by an undiagnosed metabolic 0:05:38.400 --> 0:05:43.200 disorder like diabetes. But when the prosecution makes its case, 0:05:43.600 --> 0:05:47.200 the pain and mystery around Maria's death is sharpened to 0:05:47.279 --> 0:05:51.840 a fine point. A child abused specialist takes the stand 0:05:52.279 --> 0:05:55.200 and tells the jury that Maria had bleeding and swelling 0:05:55.240 --> 0:05:59.039 in her brain and bleeding behind her eyes. Let me 0:05:59.120 --> 0:06:03.080 make it clear, the expert witness said, these injuries mean 0:06:03.160 --> 0:06:07.320 that Maria incurred physical abuse associated with trauma to the head. 0:06:07.760 --> 0:06:10.160 There is no other way these injuries could have occurred. 0:06:11.600 --> 0:06:15.159 You sit there next to your defense attorney and your 0:06:15.160 --> 0:06:19.560 heart starts beating fast, your sweating. You know what she's 0:06:19.560 --> 0:06:22.440 saying can't be true. You've been watching kids for your 0:06:22.600 --> 0:06:27.400 entire adult life. You would never you have never hurt 0:06:27.480 --> 0:06:31.400 a child, and yet you know that if you were 0:06:31.440 --> 0:06:34.839 a member of that jury and you heard this testimony 0:06:34.920 --> 0:06:38.200 from this doctor, that you would probably believe it too. 0:06:39.440 --> 0:06:41.440 You would also want to be able to hold someone 0:06:41.480 --> 0:06:47.040 accountable for the death of this innocent child. When the 0:06:47.120 --> 0:06:50.480 jury goes into their deliberations, you're not just worried about 0:06:50.480 --> 0:06:53.920 the outcome of your trial. Your heart is also broken 0:06:53.920 --> 0:06:57.279 for Maria's family. You know you'll never be able to 0:06:57.279 --> 0:07:00.440 wrap your head around their grief, but you also know 0:07:00.480 --> 0:07:03.560 that putting an innocent person in prison won't bring their 0:07:03.600 --> 0:07:08.559 baby back. After just two days of deliberating, the jury 0:07:08.600 --> 0:07:12.160 comes back with a guilty verdict. You bury your face 0:07:12.160 --> 0:07:16.640 in your hands as the verdict has read. At your sentencing, 0:07:17.160 --> 0:07:21.600 the prosecution reads letters from Maria's family. Her mother had 0:07:21.640 --> 0:07:25.560 addressed one of them to you. It said, you killed 0:07:25.600 --> 0:07:30.760 my baby? Why? Why did you do this? I beg 0:07:30.840 --> 0:07:35.600 this coord to give you the maximum sentence possible. You 0:07:35.680 --> 0:07:45.720 are sentenced to fifteen years in prison for manslaughter. The 0:07:45.800 --> 0:07:49.200 story you just heard is loosely based on Stephanie Spurgeon's 0:07:49.200 --> 0:07:53.720 wrongful conviction in two thousand and eight. Innocent people have 0:07:53.800 --> 0:07:57.840 been convicted based on medical testimony which claims that three 0:07:57.880 --> 0:08:02.200 symptoms bleeding of the brain, swelling of the brain, and 0:08:02.240 --> 0:08:06.200 bleeding behind the eyes, indicates a form of child abuse 0:08:06.280 --> 0:08:10.960 referred to as shaken baby syndrome, but this medical testimony 0:08:11.080 --> 0:08:14.720 has proven to be problematic. With the help of the 0:08:14.760 --> 0:08:18.480 Innocence Project and the Exoneration Project from the University of 0:08:18.560 --> 0:08:22.200 Chicago Law School, the evidence in Stephanie's case was re 0:08:22.320 --> 0:08:26.040 examined and she was released from prison in August twenty twenty. 0:08:26.800 --> 0:08:29.880 But many others are not as lucky and continue to 0:08:29.920 --> 0:08:34.600 serve sentences for crimes they did not commit. There's nothing 0:08:34.640 --> 0:08:37.720 more devastating than the death of a child. When a 0:08:37.760 --> 0:08:41.920 tragedy like that occurs, it's natural to want answers, how 0:08:41.920 --> 0:08:45.080 did this happen, who should we hold accountable for this, 0:08:45.280 --> 0:08:49.000 and what could have been done to prevent it. What 0:08:49.120 --> 0:08:51.960 might be most difficult for juris to accept is that 0:08:52.000 --> 0:08:56.000 the death was completely accidental, that there was nothing anyone 0:08:56.080 --> 0:08:58.640 did to cause it and nothing could have been done 0:08:59.040 --> 0:09:04.560 to stop it. I'm Josh Dubin, civil rights and criminal 0:09:04.559 --> 0:09:08.240 defense attorney, an Innocent ambassador to the Innocence Project in 0:09:08.240 --> 0:09:13.200 New York. Today on Wrongful conviction junk science. We'll explore 0:09:13.240 --> 0:09:16.640 how what's known as shaken baby syndrome has been used 0:09:16.720 --> 0:09:20.200 to falsely implicate people in crimes that they did not commit. 0:09:21.440 --> 0:09:24.880 It turns out that shaken baby syndrome isn't a fool 0:09:24.960 --> 0:09:29.040 proof diagnosis. There are many other causes for the symptoms 0:09:29.040 --> 0:09:33.559 of shaken baby syndrome that do not arise from intentionally 0:09:33.960 --> 0:09:47.880 shaking a baby. In nineteen sixty nine, two scientists put 0:09:47.960 --> 0:09:51.600 a live reciss monkey under anesthesia and strapped it to 0:09:51.640 --> 0:09:55.760 a chair made of fiberglass. The fiberglass chair was then 0:09:55.800 --> 0:09:59.920 attached to roller skate wheels. When the tiny car acceler 0:10:00.080 --> 0:10:05.320 rated and then decelerated quickly, the passenger's head that is, 0:10:05.360 --> 0:10:10.319 the monkey's head, was flung backwards then quickly snapped forward. 0:10:11.360 --> 0:10:14.520 Scientists wanted to study the effect of whiplash during a 0:10:14.559 --> 0:10:18.080 car crash, so the tiny car with the little monkey 0:10:18.120 --> 0:10:21.360 passenger was designed to mimic the movement of a car 0:10:21.520 --> 0:10:25.520 during a rear end collision. Of the fifty monkeys that 0:10:25.559 --> 0:10:28.839 took a ride in the whiplash car, nineteen of them 0:10:28.920 --> 0:10:34.120 sustained a concussion. The study proved that direct impact from 0:10:34.120 --> 0:10:37.440 a hard surface to the head isn't necessary to cause 0:10:37.480 --> 0:10:42.320 traumatic brain injuries. The human brain can be injured just 0:10:42.400 --> 0:10:46.200 from a head being violently jerked back and forth, causing 0:10:46.240 --> 0:10:50.560 the brain to rattle around inside the skull. This study 0:10:50.600 --> 0:10:54.520 had important repercussions for car safety. It's part of the 0:10:54.520 --> 0:10:57.840 reason why cars are supposed to have headrests to prevent 0:10:57.920 --> 0:11:01.760 brain injuries due to whiplash during an accident. But this 0:11:01.840 --> 0:11:08.400 study also interested a British pediatric neurosurgeon named Norman Guthkelch. Now, 0:11:08.640 --> 0:11:11.840 Doctor guth Kelch had been noticing infants coming into his 0:11:11.960 --> 0:11:16.200 office with no outward signs of abuse, no bruising, no 0:11:16.320 --> 0:11:21.200 broken bones, but they had bleeding around their brain. He 0:11:21.400 --> 0:11:24.800 wondered if these children had been getting whiplash not from 0:11:24.840 --> 0:11:29.520 a car crash, but from their parents and caregivers. Now, 0:11:29.600 --> 0:11:32.960 at the time in Northern England, shaking babies was a 0:11:33.040 --> 0:11:37.920 socially acceptable way of calming, quieting, and even disciplining a 0:11:37.920 --> 0:11:42.520 fussy baby. In fact, when doctor Guthkelch saw children with 0:11:42.520 --> 0:11:46.000 bleeding around their brain, he asked parents if they sometimes 0:11:46.000 --> 0:11:50.680 shook their child. Many parents readily confess They would say yes, 0:11:51.160 --> 0:11:54.160 Johnny wouldn't stop crying, so I gave him a good shaking. 0:11:55.360 --> 0:11:59.840 Doctor Guthkelch suspected that shaking an infant mimicked the motion 0:12:00.120 --> 0:12:04.640 of whiplash, and so he wrote a short two page paper. 0:12:05.480 --> 0:12:08.840 It said that trauma to a baby's brain, even when 0:12:08.920 --> 0:12:12.240 no other signs of physical abuse were present, may in 0:12:12.280 --> 0:12:16.720 fact be caused by violent shaking. Doctor guth Kelch never 0:12:16.760 --> 0:12:19.400 claimed that there might not be other causes of bleeding 0:12:19.400 --> 0:12:24.040 around the brain. He simply hypothesized that shaking might be 0:12:24.120 --> 0:12:27.120 the cause of it. His hope was that doctors who 0:12:27.200 --> 0:12:30.160 read his study would help teach parents to handle their 0:12:30.160 --> 0:12:35.240 infants more gently to avoid accidental harm. After doctor goth 0:12:35.320 --> 0:12:40.439 Kelch's article was published, other doctors continue to research this issue. 0:12:40.559 --> 0:12:44.120 They found that three symptoms in particular were associated with 0:12:44.160 --> 0:12:50.239 shaking a baby. These symptoms were subdural hematoma, retinal hemorrhage, 0:12:50.600 --> 0:12:55.640 and cerebral edema that is bleeding around the brain, bleeding 0:12:55.679 --> 0:13:01.120 behind the eyes, and brain swelling. These thymptoms became known 0:13:01.160 --> 0:13:05.280 as the quote classic triad, the signs that are said 0:13:05.320 --> 0:13:09.480 to be an indicator of shaken baby syndrome. The problem 0:13:09.559 --> 0:13:13.560 is that these three symptoms became synonymous with shaken baby 0:13:13.559 --> 0:13:17.680 syndrome if these three symptoms were present, it was thought 0:13:17.720 --> 0:13:21.559 that a parent or caretaker must have intentionally shaken their infant, 0:13:22.640 --> 0:13:25.360 and so when parents showed up to the hospital with 0:13:25.400 --> 0:13:28.640 a sick child who exhibited some or all of the 0:13:28.720 --> 0:13:32.959 symptoms of the triad, their children were taken away from them. 0:13:33.640 --> 0:13:36.760 The parents were put on trial, and they were sometimes 0:13:36.800 --> 0:13:42.000 convicted of abusing or even killing their own child. As 0:13:42.120 --> 0:13:45.280 parents started to be accused of child abuse based solely 0:13:45.320 --> 0:13:49.319 on the hypothesis of shaken baby syndrome, doctor Gothkelch knew 0:13:49.360 --> 0:13:52.200 he had to do something He never meant for his 0:13:52.320 --> 0:13:54.960 short paper to be used as a tool for prosecution. 0:13:55.600 --> 0:13:58.200 The whole point of his paper was to help parents, 0:13:58.400 --> 0:14:02.640 not criminalize them. Doctor guth Kelch continued to fight for 0:14:02.720 --> 0:14:06.440 wrongfully convicted parents and caregivers up until he died in 0:14:06.440 --> 0:14:10.680 twenty sixteen at the ripe age of one hundred and 0:14:10.800 --> 0:14:11.600 one years old. 0:14:17.240 --> 0:14:19.400 No one was really suggesting that this should be a 0:14:19.440 --> 0:14:25.040 mechanism for prosecuting anyone. They acknowledged, and you know, pretty 0:14:25.040 --> 0:14:29.120 clearly articulated that what they were talking about was a 0:14:29.200 --> 0:14:33.560 hypothesis about why children might have these findings. But it 0:14:33.680 --> 0:14:36.119 then started to be used as a paradigm for prosecution, 0:14:36.560 --> 0:14:40.840 and that's really where it runs into trouble because instead 0:14:41.000 --> 0:14:45.000 of continuing to research and look for answers, physicians and 0:14:45.040 --> 0:14:49.600 prosecutors started to accept it without you know, looking further 0:14:49.640 --> 0:14:51.960 into the kinds of claims that experts were making about it. 0:14:53.080 --> 0:14:57.040 Today on our show, we're speaking with Kate Judson. Kate 0:14:57.320 --> 0:15:01.960 is the executive director for the Center Integrity and Forensic Sciences, 0:15:02.040 --> 0:15:05.760 and she was one of the lawyers who represented Stephanie Spurgeon, 0:15:06.240 --> 0:15:08.880 whose story we discussed at the beginning of our show. 0:15:09.120 --> 0:15:13.680 So to start tell us about what we should understand 0:15:14.080 --> 0:15:19.400 about the difference between shaking baby syndrome as a hypothesis 0:15:19.480 --> 0:15:21.720 rather than as a diagnosis. 0:15:23.080 --> 0:15:24.800 I think there are a lot of ways in which 0:15:24.800 --> 0:15:30.560 it differs significantly from other medical diagnoses. So child abuse 0:15:30.680 --> 0:15:34.280 and particularly shaken baby syndrome is much more a determination 0:15:34.320 --> 0:15:38.680 of etiology of how somebody got the medical findings than 0:15:38.720 --> 0:15:42.440 the medical findings themselves. So the kinds of findings that 0:15:42.440 --> 0:15:44.960 are often attributed to child abuse in shaken baby syndrome 0:15:45.000 --> 0:15:47.840 and abusive head trauma cases can be due to trauma, 0:15:48.120 --> 0:15:50.880 but it isn't always, So there are medical conditions that 0:15:50.920 --> 0:15:53.760 can cause these kinds of medical findings as well, and 0:15:53.840 --> 0:15:59.280 so sometimes the evidence of actual innocence is new medical 0:15:59.320 --> 0:16:02.840 opinion that support the idea that the child had a 0:16:02.880 --> 0:16:05.440 disease or another kind of condition that led to their 0:16:05.480 --> 0:16:08.200 medical findings, rather than any kind of trauma or abuse. 0:16:08.840 --> 0:16:12.040 So let's back off for a second to when this 0:16:12.120 --> 0:16:15.400 first started to be used at trial. How did this 0:16:15.600 --> 0:16:21.560 diagnosis become something that prosecutors were able to weaponize against defendants. 0:16:22.840 --> 0:16:26.480 Part of what makes it seductive if you're trying to 0:16:26.560 --> 0:16:33.560 protect children and punish wrongdoing is that it seemed at 0:16:33.560 --> 0:16:39.200 the time very definitive. Physicians were saying, if a child 0:16:39.360 --> 0:16:42.520 has this set of injuries, they have been abused, and 0:16:42.560 --> 0:16:45.520 that abuse consisted of shaking, and we know that, and 0:16:45.560 --> 0:16:49.400 there are no exceptions, or very very few exceptions. I mean, 0:16:49.440 --> 0:16:51.720 in fact, at the time, there are plenty of transcripts 0:16:51.760 --> 0:16:55.600 available where physicians said nothing else causes this, right, and 0:16:55.680 --> 0:17:00.480 so it gives a very clear and definitive answer. Has 0:17:00.600 --> 0:17:03.520 to wonder, in the face of such an answer, what 0:17:03.680 --> 0:17:06.199 happened to a child who died, who previously would have 0:17:06.280 --> 0:17:10.720 no explanation for their death. It's definitive, it's clear and frankly, 0:17:11.280 --> 0:17:14.800 really effective in court, often resulting in a conviction almost 0:17:14.800 --> 0:17:18.960 all the time. So I think that it gave people 0:17:19.040 --> 0:17:21.919 who were involved in the criminal legal system the impression 0:17:22.400 --> 0:17:27.679 that they were successfully locking up people who were dangerous 0:17:27.720 --> 0:17:30.200 who had murdered a child. And it turns out it's 0:17:30.240 --> 0:17:38.600 not that straightforward. 0:17:43.560 --> 0:17:46.360 So tell us more about other ways a child can 0:17:46.440 --> 0:17:49.280 come to have the same kind of symptoms or the 0:17:49.320 --> 0:17:52.960 same sort of trauma that are usually associated with shaking 0:17:53.040 --> 0:17:53.800 baby syndrome. 0:17:55.040 --> 0:18:00.920 There are things like infection, serious infection, genetic disorder, problems 0:18:00.960 --> 0:18:05.280 with blood clotting, certain kinds of tumors, certain kinds of 0:18:05.320 --> 0:18:08.760 blood cloths, you know, like a pediatric stroke. There are 0:18:08.920 --> 0:18:12.760 cases where the medical findings are thought to have arisen 0:18:12.920 --> 0:18:18.200 after events like choking. But what really started to come 0:18:18.200 --> 0:18:22.760 to light in twenty sixteen there was a report done 0:18:22.760 --> 0:18:26.600 by the Swedish government that looked at medical literature that 0:18:26.680 --> 0:18:30.199 discussed you know what is colloquially called the triad that 0:18:30.480 --> 0:18:34.040 the combination of subdralhemotoma, rental hemorrhage, and cerebral edema, and 0:18:34.600 --> 0:18:37.679 looked at children who were diagnosed as and studies of 0:18:37.800 --> 0:18:40.680 children who are diagnosed as being abused based on those findings. 0:18:40.920 --> 0:18:43.400 But they found was that the data was not there, 0:18:43.520 --> 0:18:45.840 that it was very incomplete, and they recommended that the 0:18:45.880 --> 0:18:49.760 Swedish government no longer prosecute people under that paradigm. And 0:18:49.920 --> 0:18:53.560 the reaction that that got from, you know, child advocates 0:18:53.600 --> 0:18:57.640 and child abuset pediatricians was simply to attack the people 0:18:57.680 --> 0:19:01.960 who did the report. You know, there's been a real 0:19:02.160 --> 0:19:06.800 lack of serious engagement around the failings in the literature 0:19:06.800 --> 0:19:10.600 that everybody knows are there, and so that is really 0:19:10.640 --> 0:19:12.760 a shame and that's not how science progresses, and that's 0:19:12.840 --> 0:19:17.520 not how people get fair trials. People who who are 0:19:18.040 --> 0:19:23.560 admirably concerned about protecting children have unfortunately written things like 0:19:23.720 --> 0:19:29.720 editorials in journals, engaging in personal attacks instead of trying 0:19:29.720 --> 0:19:34.040 to figure out how to best approach these kinds of cases. 0:19:34.720 --> 0:19:37.920 And that's part of what makes studying and being critical 0:19:38.400 --> 0:19:42.639 of the shaken baby hypothesis really difficult. People often assume 0:19:42.720 --> 0:19:45.800 that critics of shaking baby syndrome are trying to side 0:19:46.160 --> 0:19:51.359 with child abusers, and of course that's not the case. Researchers, doctors, 0:19:51.520 --> 0:19:54.800 lawyers who are critical of shaking baby syndrome are just 0:19:55.200 --> 0:19:59.160 trying to make sure that people don't get accused of 0:19:59.680 --> 0:20:04.280 crime they didn't commit based on misleading evidence. And on 0:20:04.320 --> 0:20:07.119 the other side of this battle, there are well meaning 0:20:07.200 --> 0:20:12.000 people who are trying to protect children from abuse. I 0:20:12.040 --> 0:20:15.640 know that expert witnesses and cases involving child abuse are 0:20:15.640 --> 0:20:19.400 often doctors, So tell us more about that. Who are 0:20:19.440 --> 0:20:23.560 the doctors who testify during these cases for the prosecution 0:20:23.840 --> 0:20:24.679 as experts? 0:20:25.920 --> 0:20:29.960 So there are different kinds of physicians. They're not always 0:20:30.240 --> 0:20:33.719 child abuse pediatricians, but they frequently are child abuse pediatricians. 0:20:33.720 --> 0:20:37.320 There are about three hundred child abuse pediatricians in the 0:20:37.440 --> 0:20:42.080 United States. It's a new subspecialty. I believe the first 0:20:42.160 --> 0:20:45.040 child abuse pediatricians were board certified in twenty eleven, so 0:20:45.080 --> 0:20:49.040 it's quite new. So their job is to evaluate children 0:20:49.359 --> 0:20:52.240 in hospitals or clinics for child abuse and yes, to 0:20:52.320 --> 0:20:56.920 testify in cases or to create reports for law enforcement 0:20:56.960 --> 0:20:58.040 agencies for the courts. 0:20:58.440 --> 0:21:02.000 So that's interesting. I guess talking about biases, I could 0:21:02.040 --> 0:21:05.960 imagine that someone who's trained to look for child abuse 0:21:06.040 --> 0:21:09.280 could just start seeing abuse everywhere. It's what they know, 0:21:09.400 --> 0:21:12.359 it's what they study, it's what they look for. They think, 0:21:12.600 --> 0:21:14.639 you know, this is a symptom that comes up with 0:21:14.760 --> 0:21:18.520 people who are victims of abuse, so it must be abused. 0:21:18.520 --> 0:21:21.040 It's you know, becomes difficult to see outside of your 0:21:21.080 --> 0:21:25.239 own tunnel vision. And so when a medical specialty is 0:21:25.320 --> 0:21:29.520 geared directly towards one conclusion or looking out for one thing, 0:21:29.640 --> 0:21:33.800 of course, even with the best of intentions, it could 0:21:33.800 --> 0:21:37.680 be easy for these doctors to get tunnel vision right. 0:21:38.800 --> 0:21:43.439 That's a real concern when analysts are, for example, embedded 0:21:44.080 --> 0:21:46.639 with law enforcement. When the crime lab is part of 0:21:46.680 --> 0:21:50.600 the police department, for example, we see this role affects bias. 0:21:50.800 --> 0:21:53.280 Analysts start to see themselves as part of the law 0:21:53.359 --> 0:21:57.639 enforcement team rather than as an objective, independent scientist. But 0:21:57.720 --> 0:22:02.359 the same issue was present when child abuse pediatricians are 0:22:02.440 --> 0:22:06.520 part of a child abuse team, especially when those teams 0:22:07.640 --> 0:22:13.119 involve police and investigators and prosecutors and don't involve people, 0:22:13.119 --> 0:22:16.080 for example, from the defense bar. And since they're all 0:22:16.160 --> 0:22:19.000 human beings, it's not unreasonable to say that the same 0:22:19.040 --> 0:22:22.720 concerns we have about analysts housed within a police station 0:22:22.840 --> 0:22:25.679 or who work very closely with police and prosecutors, that 0:22:25.920 --> 0:22:28.760 other kinds of experts might be subject to those same biases. 0:22:29.400 --> 0:22:32.040 I think another reason that there are so many wrongful 0:22:32.080 --> 0:22:38.679 convictions when people are accused of abuse is that everybody involved, jurors, 0:22:38.880 --> 0:22:41.359 the lawyers, the doctors, they don't want to get it 0:22:41.359 --> 0:22:46.200 wrong because, let's just face it, setting a potential child 0:22:46.280 --> 0:22:49.720 abuse are free is a scary proposition. The stakes are 0:22:49.840 --> 0:22:51.120 very high in these cases. 0:22:52.440 --> 0:22:58.040 So really often I hear people respond to these concerns, 0:22:58.119 --> 0:23:01.720 particularly people who are who are working in kind of 0:23:01.720 --> 0:23:04.800 the child abuse field, respond to these concerns about wrongful 0:23:04.800 --> 0:23:07.280 convictions by saying, well, we just want to air on 0:23:07.359 --> 0:23:10.080 the side of the child, right, But in these kinds 0:23:10.119 --> 0:23:13.320 of cases there's really no way to do that. Any 0:23:13.480 --> 0:23:17.400 error is harmful. This idea that you can air safely 0:23:17.440 --> 0:23:19.560 on the side of the child is a false one. 0:23:19.640 --> 0:23:22.639 And that's because if you get this wrong. If a 0:23:22.760 --> 0:23:26.399 child is being diagnosed as or being determined to have 0:23:26.440 --> 0:23:29.120 been abused and they haven't been, a couple of things 0:23:29.240 --> 0:23:33.280 can happen. One is that a child can be deprived 0:23:33.320 --> 0:23:38.080 of a loving home and separated from loving parents and caregivers, 0:23:38.400 --> 0:23:41.520 and studies have shown over and over and over again 0:23:41.840 --> 0:23:45.800 that separating children from their family is traumatic. It is 0:23:46.200 --> 0:23:50.639 sometimes a necessary harm, but it is always harmful. 0:23:50.920 --> 0:23:54.440 Even from people who are just accused of child abuse 0:23:55.200 --> 0:23:58.240 and they don't get convicted but just have to go 0:23:58.359 --> 0:24:04.119 through the trial, that in itself can be so damaging 0:24:04.200 --> 0:24:06.040 to children and their families. 0:24:07.119 --> 0:24:10.680 I mean it's anecdotal, but I pretty frequently hear from 0:24:10.760 --> 0:24:13.879 families who say, like, we're really grateful that nobody in 0:24:13.920 --> 0:24:16.200 our family was convicted, but our kids are still suffering 0:24:16.240 --> 0:24:18.760 all kinds of harm and problems from the trauma that 0:24:18.800 --> 0:24:22.639 was inflicted upon them just from even a brief separation. 0:24:23.400 --> 0:24:27.760 So there may very well be good reason reasons to 0:24:27.800 --> 0:24:31.280 separate families, But what we can't do is go to 0:24:31.359 --> 0:24:35.600 court and say that the abuse is more definitive than 0:24:35.640 --> 0:24:38.520 the science actually supports, if that makes sense. The other 0:24:38.640 --> 0:24:43.240 problem is that when these cases are not medically investigated carefully, 0:24:43.560 --> 0:24:45.879 there is the chance that a child will be classified 0:24:45.880 --> 0:24:49.880 as having been abused when they actually have a serious illness, 0:24:50.480 --> 0:24:53.600 and that is also really problematic can potentially lead to 0:24:53.640 --> 0:24:57.000 more harm or even death because of that misdiagnosis. 0:24:57.640 --> 0:25:01.959 It seems almost unlikely that evidence in child abuse cases 0:25:02.040 --> 0:25:05.040 can be similar to other forensic disciplines that we've talked 0:25:05.080 --> 0:25:08.199 about on our show. But it turns out that the 0:25:08.240 --> 0:25:13.119 same tactics use to convict people based on faulty pattern 0:25:13.160 --> 0:25:17.280 matching evidence, for example, is really the same thing we're 0:25:17.280 --> 0:25:21.600 dealing with here. In instances of alleged child abuse. 0:25:22.920 --> 0:25:25.400 The kind of biases that we see in other kinds 0:25:25.400 --> 0:25:30.119 of forensic sciences are certainly present here. And because there 0:25:30.520 --> 0:25:35.400 is no gold standard criteria, no simple or single test 0:25:35.600 --> 0:25:38.439 that allows anybody to make a diagnosis of child abuse, 0:25:38.800 --> 0:25:40.800 you end up having to fall back on so much 0:25:40.840 --> 0:25:44.959 subjectivity of the person examining the child and looking at 0:25:45.000 --> 0:25:48.320 the facts, and what we know from pattern matching disciplines 0:25:48.359 --> 0:25:52.400 in particular, but also things like ourson investigation, is that 0:25:52.720 --> 0:25:55.600 the more subjectivity that is introduced into the system, the 0:25:55.680 --> 0:25:59.720 less reliable your result can be. Sometimes when you look 0:25:59.760 --> 0:26:02.280 at the breakdown of cases where people get wrongfully convicted 0:26:02.320 --> 0:26:05.520 based on faulty forensic science, and a majority of them, 0:26:06.240 --> 0:26:08.800 part of the faulty forensic science is that the expert 0:26:09.119 --> 0:26:12.240 spoke to the jury with more certainty than the science warranted. 0:26:13.240 --> 0:26:16.560 The same is true in cases with medical testimony. So 0:26:16.760 --> 0:26:20.600 when a doctor says that a fracture or a subdural 0:26:20.640 --> 0:26:24.439 hematoma or a retinal hemorrhage can only be caused by 0:26:24.480 --> 0:26:28.760