Lawyers with the Michigan Innocence Clinic say they believe at least two people have been wrongfully imprisoned for child abuse because they say medical experts misdiagnosed shaken baby syndrome.
The clinic’s attorneys are representing Joshua Burns, of Brighton, and Terry Lee Caesor of St. Clair County. Juries have convicted both men of child abuse.
Lawyers say they’ll likely take on a third case this summer and are considering an additional three cases as well, though they won’t yet discuss the details publicly.
The Michigan clinic has already helped exonerate one Michigander, Julie Baumer, back in 2009 after she served four years for child abuse because doctors misdiagnosed her nephew with shaken baby syndrome.
But some child advocacy experts – including those at the Child Advocacy Law Clinic at the University of Michigan, which is housed right in the same building as the Innocence Clinic – say that, while there might be a few select cases in which shaken baby syndrome has been misdiagnosed, the vast majority of cases are clear cut abuse.
The debate over shaken baby syndrome
There’s an ongoing debate about how certain you can be that a set of symptoms – infants with internal bleeding behind the eyes and on the brain – is caused by violent shaking.
Here’s what both sides agree on: shaking your baby is really bad, and you shouldn’t do it.
For many years, the prevailing wisdom has said that even a few seconds of shaking your baby could cause the infant’s brain to bruise, swell, and bleed. The Mayo Clinic says it can cause lifelong disabilities and even death.
But skeptics say shaken baby syndrome (SBS) can get misdiagnosed, or is just fundamentally misunderstood.
“New research suggests that most humans aren’t capable of shaking an infant hard enough to produce the symptoms in SBS,” court reporter Radley Balko wrote in the Washington Post this year. “It usually takes an accompanying blow to the head. And in about half to two-thirds of the 200 or so SBS cases prosecuted each year in the US, there are no outward signs of physical injury.”
In a year-long investigation,the Post found that since 2001, some 200 court cases about shaken baby syndrome were dropped or dismissed.
Meanwhile, many in the medical and child advocacy community say they’re well aware that a lot of other problems can look like SBS, and they say most doctors already know to rule out those other causes. Causes like a traumatic birth, infections, nutritional deficiencies, and metabolic or genetic disorders.
The debate is heated, even on two different floors of the U of M Law School
“I would say medical teams do an excellent job of ruling out things like birth trauma, metabolic disease, other disease processes and accidents,” says Frank Vandervort, a law professor at the Child Advocacy Clinic at the University of Michigan and the president of the American Professional Society on the Abuse of Children.
“I think it’s part of the medical protocol to go through each of those steps meticulously. What usually happens is that children that are perfectly healthy, show up to the ER with these constellation of injuries, and there’s no history that would show these children are vulnerable to these injuries in the absence of abusive head trauma,” he said.
“I’m seriously troubled that the work of the Innocence Network on this issue is going to mislead courts and going to put into the law, something that is going to be incredibly harmful to children,” Vandervort said.
But David Moran, the director and founder of the Michigan Innocence Clinic, says there’s overwhelming evidence that medical experts did make mistakes in the two cases the clinic is representing.
“The problem is, these cases and others like it, are cases in which people have been convicted solely on the basis of a few internal symptoms,” Moran said, “When in fact we know there are other causes for those symptoms, besides abusive head trauma.”
Innocence Clinic staff attorney Caitlin Plummer says when these cases go before juries, people with no medical background have to make a ruling about extremely complicated evidence.
“We think they got it wrong, and we think we can prove it,” she says.
Moran says as far as he’s aware, there aren’t any statistics about how many shaken baby syndrome cases happen in Michigan each year.
“Not every diagnosis of shaken baby syndrome results in a prosecution,” he said, “Many times, the parents’ rights are terminated, but the case does not actually go to criminal court. And there, the burden of proof is even lower. You can lose your child without the prosecution having to prove beyond a reasonable doubt that you violently shook your baby.”
