I The Elephant On The Moon Law Review On Sbs

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PART I THE ELEPHANT ON THE MOON1

Sir Paul Neal, the renowned 17th century astronomer, couldn’tbelieve his eyes. He had been peering through his telescope atthe dimly-visualized details of the moon when he spotted an ele-phant on the lunar surface! As a highly-regarded member of theRoyal Society, he felt it was his obligation to announce his find-ing to a world in which the possibility of men living on themoon had developed into a topic of serious debate among mem-bers of learned societies. Neal was publicly humiliated andridiculed—and the Royal Society with him—when it turnedout that, in fact, what he had taken for the trunk of an elephantwas actually the tail of a mousethat had crept into his telescope.

News of Neal’s illusory elephanton the moon sent a thunderclapthrough the scientific communityof the day forcing scholars to situp and take note of the fact that,when one sets out to prove ahypothesis, the truth may be thefirst casualty of the quest.

Truth is often the casualty whenjunk science is used in the court-room. Junk science or, as it’ssometimes called, “pathologicalscience,” relies heavily on faultyscientific methodology whereresearchers set out to provehypotheses they have prejudged ascorrect (as did Sir Paul Neal)rather than first testing the limits

of their theories to see if they are false. Courtroom scientific evi-dence critic Peter Huber describes some of the problems plagu-ing this myopic approach:

[P]athological science often depends on experiments at thethresh hold [sic] of detectability, or at the lowest margins ofstatistical significance. The claims frequently emerge froma body of data that is selectively incomplete; wishfulresearchers unconsciously discard enough “bad” data tomake the remaining “good” points look important. Thatthe measurements are at the very threshold of sensitivity isan advantage, not an obstacle: data that don’t fit the theo-ry are explained away; those that fit are lovingly retained.Professional statisticians call this “data dredging.”2

The medical literature uponwhich the diagnosis of ShakenBaby Syndrome (SBS) is based isreplete with more than half a cen-tury of confirmation bias of thekind that caused Sir Paul Neal’sdemise. It is composed of a patch-work of “studies” each often con-sisting of less than a handful ofcases which include suspect “con-fessions” to shaking and inconsis-tent methods of analyzing the‘science.’

The “data” that have been cob-bled together to support thehypothesis that shaking causesbrain injury to children has a sta-tistical significance of zero. And,“bad data” that outright disproveor challenge shaking as the cause

There is no greater assault on American families by the State than the current use of junk science toaccuse and convict mothers, fathers, brothers, sisters, grandparents, friends and babysitters of abusingbabies by so-called “shaken baby syndrome” (SBS).

This article is the first in a series presented to suggest ways to first understand the history andbackground of the scientific disputes about the SBS diagnosis and then, in turn, defend cases ofalleged shaken baby syndrome (SBS). Part I is about some of the major scientific flaws in the theoryof shaking as a cause of pediatric brain injury. Part II is about alternative theories of causation, suchas, accidental short falls, as explanations for the signs and symptoms commonly attributed to shaking.Part III is about how to make a (state) Daubert or Frye motion to challenge the State’s science incases of alleged shaken baby syndrome.

The Elephant and the Moon: Sir Paul Neal announced hisfinding to the world. But, in fact, all he had found was a

mouse trapped in his telescope.

E L A I N E W H I T F I E L D S H A R P , T L C ‘ 9 8

The Elephant on the Moon

T H E W A R R I O R • F a l l 2 0 0 3 29

of brain injury in children are routinelydiscarded and explained away becausethey do not fit the prevailing misdiagno-sis of Shaken Baby Syndrome (SBS). Inthis area of medicine and forensic pathol-ogy a mere hypothesis has become a sci-entific conclusion without a reliable sci-entific basis.

In the United States alone, where theremay be as many as 5,000 to 6,000 crimi-nal prosecutions annually involving shak-ing as the claimed cause of brain injury tobabies, it is critical to understand whethershaking a baby is, indeed, the cause ofbrain injury, or merely a mouse trappedin a telescope.

But first, a little history.

THE GREAT DEBATE:REASON VS. SCIENCE

The debate over junk science in SBS res-onates in the age-old debate between rea-son and science. It’s a debate that hasraged in many scientific circles about onehypothesis or another throughout histo-ry. For example, the Greek philosopherAristotle (384-322 B.C.) reasoned thatmatter was continuous and that it couldbe subdivided indefinitely, without everreaching any limit. He argued that matterhad no ultimate underlying structure.

Another Greek philosopher, Democritus(about 460-370 BC), reasoned that mat-ter was discontinuous, i.e., that it didhave an underlying structure so that atsome point matter could no longer besubdivided. He called this smallest unit ofmatter the “atom” (from the Greek worda tomos, meaning “not cuttable”), a basicunit that he believed was indestructible.

Having now split the atom, we nowbelieve we know who was right in thisarea of what is called “particle physics.”But, at the time, the problem with theGreek philosophers’ approach was that itwas based only on a debate between com-peting reasoning. The battle of competingreasoning could not resolve the scientificdispute about the continuity of matter. Inthe times of Aristotle and Democritus,experimentation was not used in any sys-tematic way to decide between alternativetheories or hypotheses. Observations ledto hypotheses, but the process, in general,ended there. As a result, the acceptabilityof a hypothesis was based on the authori-

ty of the philosopher. For the next 2,000years, the validity of any particular “sci-entific” claim was based upon the reputa-tion of its proponent in the establishedscientific community and his rhetoricalreasoning skills.3

THE MODERN

SCIENTIFIC

METHOD

Science began toprevail over reasonwith, for example,Francis Bacon(1561-1626), anEnglish philoso-pher and a pioneerof the modern sci-entific method.Bacon taught thattruth was derivednot from the rea-soning ability ofan authoritativeperson, but fromexperience, obser-vation, and testing,i.e., experimenta-tion.

How does a partic-ular scientificproposition comeinto being? Whileevery discovery has its own path, one thatis frequently twisted and full of wrongturns, what follows is the basic map. First,someone notices some thing, such as, aphenomenon, and based on that observa-tion develops a theory or hypothesisabout what it may mean or how it’scaused. Take, for example, Newton’sfalling apple and his hypothesis of gravi-ty. He saw the apple fall (observation andexperience) and he formed a hypothesisabout the cause (gravity). To test thevalidity of the theory or hypothesis,Newton had to design an experiment orhave a measuring tool: He developed anarea of mathematics (now called “calcu-lus”) to help him test his hypothesis.

However, as Sir Paul Neal and the RoyalSociety learned, it is futile to set out toprove a theory and run the risk of con-firming a fallacy, rather than first investi-gating, testing and identifying reality. Toavoid the danger of announcing ele-phants on the moon, the modern scien-

tific method sets out to disprove thehypothesis rather than by confirming it(as did Sir Neal). This is the process of“falsification” proposed by 20th centuryphilosopher Karl Popper.

SCIENCE GOES TO COURT

In Daubert v Merrell Dow, 509 U.S.579, (1993) the U.S. Supreme Courtrelied heavily on the work of Karl Popperand others to redefine the meaning of‘science’ that is deemed sufficiently reli-able for a jury’s consideration. JusticeBlackmun wrote for the majority:

Ordinarily, a key question to beanswered in determining whether atheory or technique is scientificknowledge that will assist the trier offact will be whether it can be (andhas been) tested. ‘Scientific method-ology today is based on generatinghypotheses and testing them to see ifthey can be falsified; indeed, thismethodology is what distinguishesscience from other fields of humaninquiry.’ …Id., at 593. (Italicsadded.)

The debate between reason versus science has raged for millennia,such as that between aristotle and Democritus over whether

matter was continuous.Copyright 2003 by Sidney Harris. Reprinted with permission.

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Quoting Popper, Justice Blackmun con-tinued: “[T]he criterion of the scientificstatus of a theory is its falsifiability, orrefutability, or testability.” Id., 593.Popper said this criterion was the defin-ing characteristic of empirical—i.e.,good, reliable and, therefore, relevant—science. If a hypothesis has not been falsi-fied despite searching inquiry, then itsscientific proposition is accepted.

In addition to the falsifiability question,the Daubert Court gave other criteria forthe trial judge to use on remand to evalu-ate the scientific reliability of the plain-tiff ’s claim that the prenatal, anti-nauseadrug Bendectin caused plaintiff-JasonDaubert’s horrendous birth defects. Thislist, which necessarily changes dependingon the area of science being offered as evi-dence, includes whether the scientifictests being proffered have known orpotential rates of error, whether theresults have been peer reviewed, andwhether the science is generally acceptedin the relevant scientific community.

Before Daubert, the sole standard for

admissibility of scientificevidence was whether thealleged “science,” was “gen-erally accepted in the rele-vant scientific community.”Frye v United States, 54App. D.C. 46 (1923).

In 1923, James Alfonso Fryewas on trial for murder inWashington, D.C.. Frye hadtaken a systolic blood pres-sure test that supposedlymeasured his physiologicalresponses to questions todetermine truth or falsehood(innocence or guilt). Fryeargued that the test resultswould prove his innocence.The device was invented byWilliam Marston, creator ofthe comic book characterWonder Woman and hertruth-inducing lasso. Thesystolic blood pressure testwas actually a crude precur-sor to the modern poly-graph. The defense offeredto have Frye take the testright in front of the jury.But, the trial judge reasonedthat the blood pressure test

was not generally accepted in the relevantscientific communities of physiology andpsychology and refused to admit itsresults. When convicted, Frye filed a sin-gle-issue appeal of the judge’s ruling onthe systolic blood pressure results.Affirming the trial judge’s refusal toadmit them, the D.C. Circuit in a two-page opinion made what is probably themost famous, (or infamous) statementabout the admissibility of scientific evi-dence in American law:

“Just when a scientific principle ordiscovery crosses the line betweenthe experimental and demonstrablestages is difficult to define.Somewhere in this twilight zone theevidential force of the principle mustbe recognized, and while courts willgo a long way in admitting experttestimony deduced from a well-rec-ognized scientific principle or dis-covery, the thing from which thededuction is made must be suffi-ciently established to have gainedgeneral acceptance in the particular

field in which it belongs.” Id., at1014.

Today, under Daubert, the fact that a par-ticular scientific proposition is “generallyaccepted” is only one criterion for whatmakes something reliable science for pur-poses of admissibility. General acceptanceis subject to the fallibility of human poli-tics, and is to be viewed with great cau-tion. For, as Galileo’s experience taughtus, the powers that be may generallyaccept and sponsor a belief, such as, “theworld is flat.” General acceptance in theHoly Roman Empire and elsewhere didnot, however, make it so.

SHAKEN BABY SYNDROME

AND GENERAL ACCEPTANCE

Most state courts admitted testimonyabout SBS in the days when physiciansgenerally accepted shaking as the cause ofa certain group of head injury symptomswith which the children came into thehospital. While the science of head injuryhas advanced, many judges and doctorsare impervious to these advances. The sci-ence of head injury causation, developedby biomechanics over the last 30 years,has slipped through the cracks in our jus-tice system and our medical schools.

It is time to judge the science by whichwe are being judged.

WHAT IS SHAKEN BABY SYNDROME?It is claimed in medical literature, med-ical records and, consequently, in crimi-

Aristotle’s authority carried the day because he wasmore authoritative in the days when experimentationwas not used in any systematic way to resolve disputes

over competing hypotheses.Copyright 2003 by Trevor Goring. Reprinted (and converted to

black and white) with permission.

English statesman and philosopher FrancisBacon (1561-1626) pioneered the modern sci-entific method teaching that scientific truth isderived from experimentation, not argument.

THE ELEPHANT ON THE MOON

T H E W A R R I O R • F a l l 2 0 0 3 31

nal indictments and parental rights ter-mination proceedings, that anotherhuman being, by violently shaking ababy, can inflict one or more of the fol-lowing injuries:• Subdural hematomas (SDH’s), bleed-

ing beneath the dural covering of thebrain over the convexities of thebrain. This is termed “intracranialinjury”;

• Subarachnoid hemorrhages (SAH’s),bleeding beneath the arachnoid cover-ing of the brain over the convexities ofthe brain. This is also termed intracra-nial injury;

• Diffuse axonal injury (DAI) (tearingand sheering of nerve fibers in thebrain, itself ). This is termed “cerebralor intercerebral injury”;

• Contusions or bleeding in the body ofthe brain, itself (also termed intercere-bral injury); and

• Retinal hemorrhages (RH’s), such as,bleeding in the vitreous inside the eye,and/or between the retinal layersbehind the eyes.

Other alleged ‘diagnostic signs’ of SBSinclude bruising to the neck, shoulders,torso or arms where the child was alleged-ly grabbed and shaken, broken ribs, andbroken arms and legs, i.e., fractures of the‘long bones.’

This article focuses on cases involvinginjuries to the head only, that is, on thebaby who is brought to the emergencyroom with bleeding above the brain ordamage to the body of the brain, itself,retinal hemorrhages, or all of these.(Injuries to arms, legs, ribs and otherareas raise other forensic issues that can’tbe covered here.)

SBS: AN UNPROVED HYPOTHESIS

MASQUERADES AS ‘SCIENCE’The central forensic fault with the theoryor hypothesis that people can injurebabies’ brains by shaking alone is that,from its inception, the hypothesis wasbased on reason and inference, ratherthan reliable testing. It has been “con-firmed” solely by further reason andinference. If, for example, a baby isbrought to the emergency room withSDH’s and RH’s, the diagnosis is “shakenbaby syndrome.” The symptoms are usedto infer the cause.

An untested syndrome that is both adiagnosis and a statement of causation,made by someone in the medical profes-sion untrained in the science of injurycausation, is hardly the way of reliable sci-

ence. Nor is this helpful in our system ofjustice where one is supposed to be inno-cent until proven guilty. It only makesmatters worse that people are prosecutedfor this form of child abuse in spite of thefact that thehypothesis thatshaking aloneinjures babies’brains has nowbeen falsified(disproved) byexperiments inbiomechanica ltesting using amodel baby andby other corrobo-rating works.(More on thislater.)

A fair number ofphysicians nowchallenge shakingas the cause ofbrain injury inbabies, and thetheory of shakinghas come underserious attack incases and medicalliterature since1987. Still, the

State continues to sponsor and promoteshaking as a cause of pediatric braininjury by prosecuting mothers, fathers,brothers, sisters, grandmothers, friendsand neighbors for injuring or killingbabies by violently shaking them.

The real science available about SBS sug-gests that one prosecution for allegedlyinflicting brain injury on a child by shak-ing, alone, is one too many, just as it was21 too many when 19 men and womenand two dogs were falsely accused of, andhanged for witchcraft in 1692 in Salem,Massachusetts.

Yet, shaken baby syndrome (SBS) as acause of brain injury enjoys institutionalsupport from the American Academy ofPediatrics (AAP), and the NationalAssociation of Medical Examiners(NAME), among others. The AAP,which receives substantial federal grantsto devise programs to recognize and pre-vent child abuse, including so-called“shaken baby syndrome,” recentlyreceived such a grant for $1.5 million,which it announced on its web site. TheAAP’s committee on child abuse for2000-2001—through which the AAPaffirmed it’s belief in SBS as a real form ofchild abuse—is composed of several

Philosopher Karl Popper (1902-1994):“The criterion of the [modern] scientificstatus of a theory is its falsifiability, or

refutability, or testability.

Infant head exposing the veins in the subdural space.Copyright by John Harrington, CMI, 2003. Reprinted with permission.


32 T H E W A R R I O R • F a l l 2 0 0 3

physicians whose writings reflect moremedical anecdote and ideology thanknowledge of serious science or evidence-based medicine on the subject.

THE ORIGINS OF SBSWhere did it all begin? The origins of“shaken baby syndrome” lie in the earlywritings of a radiologist, John Caffey,M.D. In 1946, Caffey reported four casesof children who had broken bones and

chronic (old) subdural hematomas andretinal hemorrhages. He wonderedwhether there was an association betweenthe broken arms and legs (i.e., longbones) and subdural hematomas. He waslater to suggest they had been shaken.But, of the four cases, none were autop-sied, and so there was no informationabout whether any of these children suf-fered internal or external blunt trauma tothe head—either by accident or intent—to otherwise explain the brain injuries. Atthis phase of his career, Caffey was con-cerned to establish pediatric radiology as“a respectable and valid medical entity.”

So, for him, the association between thebrain and long bone injuries he suggestedwas an exciting development.

The Virginia Jaspers case in 1956 was toincrease his excitement. It cannot beentirely blamed for the beginning of themodern nightmare called “shaken babysyndrome,” for Caffey and others bearresponsibility for failing to scientificallyscrutinize Jaspers’ claims. However,Jaspers’ story was partly responsible for

opening floodgatesthat are still notclosed. The daugh-ter of a New Havenrailroad executive,Jaspers was vicious-ly described in thenational media asan “ugly duckling”and a “large andungainly girl” with“ham sized hands”who, with limitedoptions, left schoolat age 19 to studypediatric nursing,then the ghetto ofthe field.

Five years later, 11-week-old Cynthiadied suddenly of acerebral hemor-rhage while Jasperswas her nursemaid.Doctors suspectedabuse because therewere signs thatbaby Cynthia hadbeen dropped orthrown. Still,Cynthia’s parentstrusted their nurse-

maid and asked Jaspers to return whentheir next child was born. (Jaspers alsocared for the children of several otherfamilies.) Three years after baby Cynthia’sdeath, another child in Jaspers’ care—three-month-old Jennifer—asphyxiatedon her own vomit and died. Jaspersprotested that she had done nothing toharm the child and, in fact, had tried tosave her by shaking her to get a “bubble”up. Then, in August 1956, Jaspers admit-ted to shaking one of her charges, 11-day-old Abbe, when she refused to take herformula. Abbe died. Jaspers’ story was

reported in Newsweek. A photograph ofher carried the cutline:

Size and strength: The brutal andtragic career of nurse Virginia Jaspersis tied to her massive physical traits.Now 33, she is an ungainly 6 feet,weighs 220 pounds, has a 52-inchwaist. Police concluded that sheprobably had no idea of the strengthof her cruelly big arms and hands.

The cat about shaking was out of thebag—or so it seemed. The problem wasthat whether it was possible under thelaws of physics for Jaspers to inflict theseinjuries by shaking alone—despite herconfession—was never even questioned.Confessions do not a science make. EvenGalileo confessed at his Inquisition toteaching heresy when he knew that, infact, the world was round. (Had some ofus represented Galileo, we may haveadvised him to do the same.)

No doubt the confessions of the shake-prone nurse (as she was later called byCaffey) emboldened one doctor, C.Henry Kempe, M.D., to announce in1962 that any child with subduralhematomas and retinal hemorrhages hadbeen abused by shaking. Writing throughthe institutional voice of the Americanmedical establishment, the Journal of theAmerican Medical Association (JAMA),Kempe urged doctors to look for subdu-rals and retinal hemorrhages in childrenwith broken bones, and to diagnose shak-ing as the cause of these injuries if theywere found. While Caffey was to call itthe Parent-Infant Traumatic StressSyndrome (PITS), Kempe called it “thebattered child syndrome” inflicted byparents on their babies. There was neverany question about the matter. The chil-dren had been abused. All critical think-ing about other possible causes—such as,accidents, short falls, birth injuries andgenetic defects—had ceased.

Kempe also claimed that if there was amarked “discrepancy between clinicalfindings and historical data as supplied bythe parents” this was a “major diagnosticfeature of the battered child syndrome.”He was referring to parents’ claims thattheir children were injured from shortfalls or other impacts. Despite the factthat there had been reports in clinicalneurosurgical literature for more than

An infant subdural hematoma (intracranial injury) shown onCT scan. The white, long concentric shadow on the left

represents the subdural hematoma.


T H E W A R R I O R • F a l l 2 0 0 3 33

100 years in which short falls caused skullfractures, subdural hematomas and reti-nal hemorrhages related either to brainswelling or impact, Kempe claimed thatparents’ stories about short falls causingthese injuries to their children were cate-gorically false. Kempe had no foundationfor such a claim. He had conducted noresearch to determine the minimumimpact velocity required to cause theseinjuries to the head. Probably, he had noteven considered that in a drop of onlythree or four feet, one hits the ground at10 miles per hour. Parents’ protestationsof innocence and denials of wrongdoingwere just part of the battered child syn-drome, he inferred.

Kempe advocated that physiciansask questions that were designedto trap the parents into admittingthey lost control and lashed out,such as: “’Does he cry a lot?’; ‘Ishe stubborn?’; ‘Does he obeywell?’; ‘Does he eat well?’; ‘Doyou have problems controllinghim?’.” Kempe also urged doctorsto delve into the parents’ ownfamily history—had they beenabused?—and, worse, advocatedthat “nurses or other ancillarypersonnel,” watch (spy?) on theparents while in the hospital withtheir injured child.

Things were taking a really nastyturn. In the Salem witch trials of1692, it was said that as suspicionescalated, people began to “breakcharity” with one another, accus-ing and naming each other aswitches. By advocating that physi-cians go beyond diagnosis and treatmentand become investigators of injury causa-tion, against a child’s own parents,Kempe was, in effect, telling the medicalcommunity to break charity with itspatients.

THE DARK SIDE OF DIAGNOSIS

Hippocrates’ ideal was “First, do noharm.” In “Ancient Medicine,” he wrotethat those who leap to conclusions aboutthe origin of an illness are “clearly mis-taken in much that they say.” IfHippocrates were alive today, it is notmuch of a stretch to believe that theFather of Medicine would have had harshwords for Kempe and others who encour-

aged their colleagues to jump to the con-clusion of child abuse in cases where thechildren had SDH’s, RH’s and no evi-dence of external trauma to the head.

The role of the doctor is to diagnose andtreat. It is not the role of a physician toaccuse others, at least not without reliablescience. Nothing could be more harmfulto a child than to have his parents falselyaccused and taken away. Since Kempe’smedical profession would not acceptexplanations of short falls or other condi-tions as the cause, and since the parentscould not explain why the child hadSDH’s and RH’s, parents were doomedby Kempe and others who inferred andreasoned that they must have had a hand

in injuring their own children.

Facing accusations of being a witch whenhe could neither explain strange phenom-ena nor recall all ten commandments in1692, John Proctor, the character inAuther Miller’s classic play, “TheCrucible,” put it this way: “I never knewuntil tonight that the world is gone daftwith this nonsense.” The night, like thedaftness, was only just beginning. Kempegave scant ‘proof ’ that his theory of shak-ing as the cause of these injuries was sci-entifically valid. He reported only twocases in his article.

In the first case Kempe reported blunttrauma to the head could not be ruledout because the baby survived. There was

no autopsy, and this was before the daysof CT scans. As part of the process ofdiagnosis, physicians must attempt torule out, that is, disprove or falsify, a diag-nostic theory, and fail to do so, beforeaccepting it as the cause of a condition. Ifa doctor sets out to prove rather than fal-sify his or her first diagnostic impressions,he or she risks treating the patient forsomething the patient does not have.Indeed, in Kempe’s first reported case, theparents explained that another child hadthrown a toy hitting the one-month-oldbaby on the head. Their account was dis-counted as part of the denial associatedwith “the syndrome.”

Kempe did no experiments to test thematerial properties of the pediatricskull or of the underlying materialproperties of the pediatric brain,and no analysis of the impact veloc-ity with which the toy may have hitthe baby’s head to see if he couldrule out the parents’ account as thecause of the injury before he ‘diag-nosed’ (accused) them of abuse.

In the second case Kempe reported,there was evidence of blunt traumato the head—a skull fracture. Braininjury by shaking alone was incon-clusive even on Kempe’s own exam-ples. As has happened so manytimes in the sordid history ofhumanity, reason had prevailedover science and had done so withthe help of the members of themedical establishment.

ANOTHER VOICE:THE SCIENCE OF HEAD INJURY

While the child abuse doctors were busybeating the drums about shaking, at leastone physician was trying to develop andapply the science of head injury biome-chanics to determine what forces it actu-ally takes to cause brain injuries fromwhat later became popularly-known as“whiplash.” Whiplash is rapid movementof the head back and forth withoutimpact.

Whether rear end car crashes could causewhiplash injuries was controversial anddisputed in the 1960’s, even more so thantoday. Beginning in 1966 and 1968,Ayub K. Ommaya, M.D., a Pakistani-born and Oxford-educated neurosur-

The vasculature (arteries and veins) of the brain with thebrain tissue removed. when the brain rotates, it tears and

sheers these vessels.


34 T H E W A R R I O R • F a l l 2 0 0 3

geon, set out to determine the amount offorce it takes to cause certain types ofbrain injuries ranging from subduralhematomas (intracranial bleeding) tobleeding in the body of the brain, itself(e.g., intercerebral contusions). Ommayawanted to test the hypothesis that rearend car crashes could cause such injurieswhen the occupants were (1) notrestrained and (2) did not bang theirheads.

Ommaya’s experiments were gruesomeand unpopular, and later ones by otherscientists were to be shut down underpressure from animal rights groups. But,in the research climate of the mid-to-late1960’s, Ommaya was able to use Rhesusmonkeys in place of humans to mimic caraccidents by accelerating them on chairsfixed to a track and decelerating themwithout impacting their heads at all.

After these grisly experiments, the mon-keys were anesthetized, killed and autop-sied. Ommaya’s 1966 and 1968 experi-ments showed that it took between35,000 to 40,000 radians per second(squared4) of angular or rotational acceler-ation to cause intracranial and intercere-bral bleeding in the monkeys. That wasthe equivalent of forces not merely in astraight line (so-called “linear”), butforces occurring as the monkeys’ headsrotated or arced on their necks.

To compare what would happen tohuman brains during the angular or rota-tional acceleration-deceleration of a caraccident, Ommaya mathematically scaledthe size of the monkeys’ brains to humanbrains and determined that it would takebetween 6,000 and 7,000 radians per sec-ond (squared). Relying on this and otherhead-injury data, Ommaya concludedthat forces generated by some rear-endcar accidents caused whiplash braininjury to humans.

To put in perspective some of the rota-tional or angular forces that must beexceeded to cause human head injurywithout impact, there are a few reports inthe Japanese neurosurgical literatureclaiming that some riders exposed to themassive angular forces created by rollercoasters as they climb, dip, corkscrew andturn, have developed SDH’s diagnosedafter experiencing “roller-coasterheadache.”

In 1971, yet another doctor weighed inon shaking. Citing Caffey’s 1946 articleon the association between broken bonesand SDH’s, Kempe’s 1962 article andOmmaya’s 1968 monkey data as proofthat human shaking causes brain injuriesin children, A.N. Guthkelch, M.D.,announced in the British Medical Journalthat when a child with subduralhematomas (SDH’s) and retinal hemor-rhages (RH’s) and no external marks onhis or her head comes to the ER, one caninfer (reason) that the child had beenrepeatedly shaken, rather than being avictim of impact.

This doctor made no distinction betweenthe power that a human being can gener-ate versus the power of a machine, evenciting the case of a “prominent Americanneurosurgeon whodeveloped a SDHafter his head hadbeen jerked by theviolent motion ofthe bobsled whichhe was riding at thefun fair,” as anexample thathuman shakinginjures babies’brains. Nor did thisdoctor appreciatethat blunt impact,as with an acciden-tal fall, may leaveno telltale marks,especially in thecase of an infant.

Head injury biomechanics was not evenpart of the question about whether shak-ing could cause the so-called SBS headinjuries. For example, as with Caffey andKempe, Guthkelch did not appreciatethat the infant skull is pliable and is capa-ble of bending on impact and, in somecases, leaves no evidence of injury as itresumes its shape. There was little excusefor failing to appreciate this situation, forthe pliable nature of the infant skull wasdescribed in the medical literature as farback as 1888. Still, when one is set onproving a hypothesis, contrary informa-tion is discarded and supportive data islovingly retained.

Nor did Guthkelch, or any other physi-cian claiming that shaking injured babies’brains, consider what might happen to

the brain as the quick bending of theinfant skull occurs from sudden impact.

The work of biomechanicians show thatslow changes in skull shape, such as thoseoccurring in the birth canal, allow thebrain to adjust its internal pressure andmake accommodation for the externalsqueezing on the skull. Blood flow andflow of cerebral spinal fluid are regulatedto decrease or increase volume. But, aswith a precipitous birth, there is no timefor this adjustment of blood and cerebralspinal fluid pressures in the fast bendingof the skull that happens when an infantfalls and hits his or her head.

According to Ommaya and others whohave studied the material make up ofbrain tissue, it consists mostly of water

and fat. As such, it would take about100,000 square inch pounds of pressureto compress it to a smaller size. To under-stand the magnitude of this force, imag-ine a woman wearing shoes with a one-square-inch heel. If she weighed 100pounds and stood on one foot with a heelthat size, she would exert 100 square inchpounds of pressure on the ground.

Under pressure, like water, the brain fol-lows the path of least resistance. Onimpact, when the skull indents or, as bio-mechanicians say, when it “transientlydeforms,” some computer models showthat the brain tissue rotates inside theskull. To visualize this, imagine thatunder the pressure of impact to the head,the brain behaves a bit like toothpaste ina capped tube which when squeezed fromthe outside rotates under the pressure.

The 1968 Ommaya rhesus monkey experiments. The cars were shotforward and quickly stopped causing whiplash injury at about

120-G forces, more than 10 times the 11-G forces a human being isable to generate by shaking, alone.


T H E W A R R I O R • F a l l 2 0 0 3 35

Because the toothpaste is relativelyincompressible, it cannot get any smaller.But it can get relief from the pressure byturning or rotating in the tube.

The rotation of the brain caused by skullchange on impact would be harmless if itwere not for the fact that the brain is alabyrinth of blood vessels (as are found inthe subdural and subarachnoid spaces)and of millions of connections (such asneurons and their axons) that cannot bestretched beyond their limits. Once thesestructures are stretched by rotation, theywill shear, tear and die causing excessivebleeding and, often, lethal swelling of thebrain.

In the early days of the SBS diagnosis, thescience of head injury biomechanics wasstill in its infancy. The development ofthis science would have to await, amongother catalysts, the advent of products lia-bility cases against manufacturers of auto-mobile companies, playground equip-ment, bikes, helmets and toys. For exam-ple, in attempts to design more crashwor-thy vehicles and minimize liability anddamages, the auto makers would employbiomechanicians to start working out thethresholds and causes of head injury atcrash test facilities, and later with com-puter-generated models.

Guthkelch and other physicians advocat-ing human, manual shaking, alone, as thecause of brain injury to babies also didnot know that their hypothetical descrip-tions of parents injuring their babies byshaking them from front to back was tobe further questioned by later head injuryresearch. In 1982 biomechanicianLawrence Thibault and neurosurgeonTom Gennarelli (and others) showed thatbrain injury occurs more easily from side-to-side rotation, like the tick-tock of ametronome, that is, in the coronal plane,and not in from front to back like achild’s swing, that is, in the sagittal plane.And this was in an experimental situationwhere the forces far exceeded what ahuman being can generate. It’s a questionof magnitude.

HEAD INJURY SCIENCE SLIPS THROUGH

THE CRACKS OF MEDICINE

As the automobile companies and othermanufacturers were studying the scienceof head injury to minimize money judg-

ments, Guthkelch and Caffey also readOmmaya’s 1968 monkey experimentarticle. Because he was traveling along hisown “scientific” track intent on reachinga preconceived destination, Caffey con-cluded that just as acceleration-decelera-tion, without impact (i.e., free shaking or‘whiplash’) damaged the monkeys’ brains,this also explained how parents inflictedbrain injury on their babies. He actuallytelephoned Ommaya to thank him forthe 1968 article. Today, Ommaya isadamant that he told Caffey that theacceleration-deceleration forces involvedin the monkey experiments were muchgreater than he believed could be generat-ed by a human. Indeed, Ommaya recent-ly affirmed that communication in theBritish Journal of Neurosurgery in 2002.

Caffey’s subsequent misapplication of the1968 Ommaya monkey data to allegedshaken babies was to further compoundthe problem of “shaken baby” theory,already a hopeless house of cards con-structed of unproved hypotheses fueledby Kempe’s call to physicians to cultivatesuspicion of patients’ parents.

In 1972, Caffey wrote and published,“On the Theory and Practice of ShakingInfants.” By then, Caffey and Kempeshared the limelight with the newly iden-tifiable form of child abuse being called,among other names, “the Caffey-KempeSyndrome.” Their careers as discoverersof the new scientific frontier had takenoff. And, Caffey’s publicly-expresseddesire that pediatric radiology become a“respected and valid medical entity” wasbeing realized. From Caffey’s viewpoint,it was through the magical eye of the X-ray (then called the roentgen) that theshadows of pediatric head injury abusewere being exposed. Caffey was later tocall the X-ray “the pristine probe,” and ina 1972 address to Boston- and Harvard-based radiologists read them this poem hepenned:

Poor shaken babe, guileless tyke,

Rocked by love and hate alike,

Your mother’s tongue locked in silence,

Hush untold tales of guilty violence,

But when we flood your flesh with radi-ant streams,

Bruised bones shine through in truthful

gleams,

It’s stretch, squeeze, stretch; not bash, hitbatter,

Which bloody your bones and duramater.5

On one level, given the development ofthe modern scientific method by Bacon,Popper and others, it is amazing that noone at the time questioned or challengedthe assumptions and conclusions reachedby Caffey, Kempe or Guthkelch, especial-ly when the liberty of other humanbeings, and the love between parents andchildren were at stake. Instead, as withthe debate between Aristotle andDemocritus, it appears that the authorityof these prominent physicians, who werepublishing their hypotheses about pedi-atric head injury causation in the estab-lishment medical journals, rather thanany true claim to reliable science, carriedthe day.

In terms of the medical culture of the day,it is not surprising that there were fewchallenges, if any, to these physicians.They were publishing their theories at atime when the practice of medicine was amore refined and ostensibly gentileendeavor, when learned men publishedcase studies in journals, and gave defer-ence, rather than challenged, one anoth-er’s assumptions and conclusions. It wasall very gentlemanly and polite, but rarelyscientific. Most senior physicians then,and even now those currently in practice,were trained under the old system thatstarted with an undergraduate degree inalmost any field followed by years ofintense training by professors of medi-cine. The professors taught by impartingtheir years of anecdotal experience andtheir beliefs to the new medical students.Experimental medicine (evidence-basedmedicine) used to be mentioned onlyoccasionally, and the conclusions of thelimited number of experiments (clinicaltrials) often were of limited validity orwere even incorrect because of poorlydesigned clinical trials and poor under-standing of the statistics of clinical trials.The development of “evidence-basedmedicine”—large medical studies, apply-ing the scientific method in study design,testing and interpretation of results—wasstill at least two decades away whenCaffey published his 1972 paper.


36 T H E W A R R I O R • F a l l 2 0 0 3

Even today, a bias toward reliance onanecdotal rather than on evidence-basedmedicine continues in this field. Only inrecent years has the concept of medicineas a research science (evidence-basedmedicine) been introduced into the med-ical school curriculum. Current medicaltraining, on the other hand, emphasizesthe science of medicine (evidence-basedmedicine) and addresses the validity ofspecific clinical trials and of differenttypes of clinical trials in making medicalrecommendations.

The entire concept of “shaken baby syn-drome” arose when most physician-train-ing was based on the medical culture ofthe mid-twentieth century, a time whennew ideas did not require rigorous scien-tific validation to survive. The same con-cept, if introduced de novo today, wouldnot survive scientific evaluation andwould not have become established aspart of our medical and legal folklore.

The biomechanics of head injury was notconsidered by pediatricians who contin-ued to rely on Caffey and others and to“recognize” their own cases of “shaken

baby syndrome.” Many of themjoined the parade by reportingtheir own anecdotal and self-confirmed theories in the med-ical literature. Today, there areseveral hundred such articles.Most of them refer and rely onCaffey, Kempe and Guthkelch.

It is a legal and moral outragethat even though the SBS “diag-nosis” is a statement of causationpediatricians are not required tostudy the science of head injurycausation either in medicalschool or in their pediatric resi-dencies. This is also true offorensic pathologists who are fre-quently called to testify aboutissues of force.

One forensic pathologist testify-ing in a murder trial in a case ofalleged SBS haughtily told aKansas jury in November 2000,“I have no interest in[bio]mechanics. I am a doctor.”Yet she was there to testify abouthead injury causation in relationto the manner of death:Homicide by violent human

shaking, alone. She was there for the Stateto refute the defendant’s account of thechild who fell head first down concretesteps. The child’s injuries were causedwhen the defendant violently shook himand then slammed him down, the med-ical examiner claimed. The SDH’s, theRH’s, could not have been caused by this,she further reasoned before the jury. Shehad not even bothered to calculate theimpact velocity (if she even could) withwhich the child would have hit theground to rule out foul play. She hadread the medical literature about SBS andwas confident and satisfied that she wasan expert in shaking as a cause of braininjury in babies.

The Kansas forensic pathologist had, ofcourse, read Caffey’s 1972 article. Thatarticle now forms part of the “scientific”foundation of the American Academy ofPediatrics’ [AAP] technical report affirm-ing that human, manual shaking, alone,without impact, causes baby brain injury.The AAP reaffirmed its position asrecently as July 2001.

The American Academy of Pediatrics’

(AAP’s) reliance on Caffey’s work to justi-fy the existence of “SBS” is at best negli-gently misplaced and at worst ideologi-cally infected. Caffey’s article containswithin itself an absence of reliable andcomplete data to support his hypothesisand conclusions about Virginia Jaspers’alleged shakings:

“The most gruesome and, at thesame time, the most significantexamples of proved…whiplash-shak-ings and of burpings are recountedin the story of an infant nurse…Sheis reported to have killed threeinfants and maimed 12 others dur-ing a period of eight years, largely byshaking and jolting infantile brainsand their blood vessels…. In oneinstance she was invited back by theparents to care for their secondinfant after she had shaken their firstchild to death.” (Emphasis added.)

Caffey ignored the fact that the firstinfant showed evidence of blunt traumaand continued: “Eventually, she admittedkilling three infants and maiming twoothers.” Not only was Caffey’s 1972 arti-cle heavily dependent on Jaspers’ descrip-tion of how she believed (once accused)that she injured the babies, but it alsolacked any detailed autopsy (then called“necropsy”) information on which any-one could make an independent judg-ment about the validity of the scientifichypothesis, i.e., that by shaking a childviolently, an adult could inflict braininjury.

In 1974 Caffey wrote more about Jaspers“whiplash shaken” baby cases and thistime included some autopsy informationabout one of the babies. One very haunt-ing problem about the case of the (11-week-old) baby whom Jaspers wasaccused and convicted of killing is that,based on the autopsy information thatwas provided, this child may well havehad birth injuries. (Obstetricians knowonly too well that even babies born bynormal birth sometimes have subduralhematomas.) In that autopsy of the 11-week-old, shaking was not ruled out byexamination of the brain stem or uppercervical spine. The age of the subduralblood was not tested to see if Jasperscould be ruled out as a killer by compar-ing the age of the initial injuries with thenursemaid’s care of the child. And, blunt

The scattergram from the 1987 Thibault study shows thethresh hold for injury from human shaking, alone. Note

that by shaking the model baby without impact, theresearchers were not able to generate the forces Ommayareported are necessary to cause brain injury. The circles

in the bottom, left corner are the measurements from theaccelerometer on the baby’s neck from the pure shaking

experiment. No one got over 11 G forces. But, when themodel baby was slammed (the slams are represented bythe triangles) the force generated was about 50 times

greater than pure shaking.


T H E W A R R I O R • F a l l 2 0 0 3 37

impact was not conclusively ruled out.There was a clear effort to prove thehypothesis that the baby had been shak-en, and shaken by none other thanJaspers, rather than to falsify it by search-ing inquiry. In some of Caffey’s reportedcases were there was no evidence of skullfractures or external scalp injuries and,based on this, he reasoned that thesebabies were victims of whiplash shaking(WLS). On the “data” provided byCaffey, it is clear that no one investigatedwhether there were internal injuries to thescalps of those children. Certainly, no onementioned the fact that some bluntimpact injuries do not cause external orinternal scalp damage. And no one men-tioned the pliable nature of the infantskull or considered what might happen tothe underlying brain on impact.

Although shaking as a cause of injury isblindly accepted by segments of the med-ical establishment, this hypothesis of howbabies’ brains are injured has never beenvalidated by pediatric head injury biome-chanicians, i.e., by the relevant scientificcommunity to whom the science of injurycausation belongs.

Quite the contrary.

SBS FALSIFIED BY

RELEVANT SCIENTIFIC COMMUNITY

It would be 15 years after the 1972Caffey article before an experimentwould be performed that would provethat a human being could not possiblygenerate the forces necessary to causeinternal head injury by human, manualshaking, alone. It appeared that Jaspershad confessed to something she had notdone or, more sinisterly, she had donemore than that to which she confessed.

Unlike physicians, biomechaniciansexperiment with the forces needed tocause human injury. In 1987, a biome-chanician and a group of neurosurgeonsset out to prove that SDH’s and otherbrain injuries in babies were not causedby shaking, alone, but by impact.

The biomechanician was Lawrence E.Thibault. The Thibault team membersmade a model baby and attached anaccelerometer to its neck. First, theyasked some burly “Penn State” footballplayers to shake the model as hard as theycould. The most force these hulks were

able to generate was a mean of 1,138radians per second (squared). That was afar cry from the required 6,000 to 7,000radians per second (squared) whichOmmaya established were needed tocause brain injury by whiplash to man,i.e., shaking without impact, in the 1968monkey experiments.

Secondly, the experimenters asked theathletes to slam the model baby on threedifferent surfaces. Only when it wasslammed on hard metal and padded sur-faces did the accelerometer on the modelbaby’s neck register the forces needed tocause concussion, SDH’s and diffuseaxonal injury. In fact, the forces generat-ed by impact were 52,475 radians per sec-ond (squared).

The experiment had falsified thehypothesis that a human being, bymanual shaking, alone, could injure ababy’s brain. The results of the experi-ment have never been invalidated, butprior and subsequent studies are consis-tent with them.

Critics of the 1987 Thibault experimentclaim that the results are invalid becausethe baby was not real. But, that was notthe point. The 1987 Thibault biome-chanical experiment focused on the ques-tion of whether it was possible, as a mat-ter of physics, for the shaker to generatethe forces Ommaya determined were nec-essary to cause brain injury withoutimpact. Football players capable of inflict-ing tremendous physical violence couldnot do so.

If anyone really wants to reproduce thisexperiment with biofidelic models, it canbe done using finite element analysis, atechnique through which head injury canbe simulated on a computer. It’s a tech-nique based, in part, on US military pro-grams released into the public domain,and has been used by the auto industry,among others, to make safer products.But, the cost of this is high, and funds foralleged child abusers are not.

Following the release of the 1987Thibault study the hypothesis of “shakenbaby syndrome” has sometimes beenrecycled as the “shaken-impact-baby syn-drome” (SIBS), but pure shaking is oftenstill used as the theory of causation incriminal indictments regardless ofwhether there is evidence of impact.

RECENT STUDIES DEBUNK SBSOther more recent studies have also refut-ed that shaking is the cause of braininjury. In June, 2001, two British neu-ropathologists, Jennian Geddes andHelen Whitwell, announced their find-ings after studying a number of childrenwho, it was claimed, had been victims ofshaking. They found that there was a sig-

Nursemaid Virginia Jaspers: when she confessedin 1956 to shaking a number of infants in hercare, Jaspers opened floodgates that are still dif-

ficult to close, despite the fact that the 1987Thibault study conclusively invalidated the

Caffey-Kempe-Guthkelch hypothesis that shak-ing, alone, injures babies’ brains. Did she really

do what she confessed to doing?


38 T H E W A R R I O R • F a l l 2 0 0 3

nificant association between shaking andbrain stem injury or upper cervical spineinjury. The term “association” in medi-cine is loaded. It means that if one sees“A,” one will expect to see “B.” If a childhas been shaken, there should be corre-sponding brain stem or upper cervicalspine injury. The physics of this proposi-tion make sense and are supported byother head injury research by Ommaya,and others. At least one biomechanicianhas compared the neck to a straw, and thehead to a grapefruit. When shaken, themore fragile neck is the first part to beinjured. This analogy is consistent withthe work of Ommaya and others whofound that the tolerance criteria for neckinjury is exceeded long before that forhead injury. So, if there is intracranial orintercerebral injury and RH’s, but noupper cervical spine or brain stem injury,one has to assume another cause, such asblunt impact. British neuropathologistsGeddes and Whitwell found that brainstem and upper cervical spinal cordinjury were rare findings. If shaking is socommon, one must wonder why thefinding is not more common.

Proponents of SBS also claim that diffuseaxonal injury (DAI)—axons injured dif-fusely in the brain—is a “diagnosticmarker” for shaking. As with shaking asthe cause of intracranial and intercerebralinjuries, the DAI-by-human-shakinghypothesis was also falsified in 1998 byGerman pathologist ManfredOehmichen. He studied the brains of252 people, some of whom had beendeprived of oxygen, a common, second-ary effect of head injury referred to ashypoxic or anoxic insult. Oehmichenfound that people who had been on res-pirators to help them breathe all haddamaged axons, which he termed “axonalpathology.” In cases of oxygen depriva-tion, there is no way to tell whether theperson’s axons were injured by the pri-mary trauma, such as, by whiplash, or bythe cascade of events following primarytrauma known as secondary injuries, suchas, anoxia or hypoxia. It’s critical to notethat in forensic medicine, the finding ofaxonal pathology is “non-specific,” mean-ing that one cannot infer anything aboutits origin or cause. British neuropatholo-gists Geddes and Whitwell also con-firmed this in another study in 2000.

CONFESSIONS DO NOT

EQUAL SCIENCE

A common theme in SBS cases is that theaccused confessed to shaking.

Even though Virginia Jaspers confessed in1956 to shaking some of the babies in hercare, it is clear she did not kill them thisway, if at all. After being told by a pedia-trician that she murdered the infants inthis way, she may well have believed shedid. However, the science of head injurydeveloped since her confession tells a dif-ferent tale. Today, after serving manyyears in a State prison, Jaspers still liveswith her “crimes,” an elderly woman whois afraid and wants to slam the lid on thecoffin of her past. She actually believesshe killed the babies, and in this she is notalone. Many people are actually made tobelieve they killed. The doctors told themso.

Some of these, like Jaspers’ confessions,are included the medical literature andare used to provide ammunition againstothers. Jan E. Leestma, M.D., a Chicago-based forensic neuropathologist, recentlyreviewed 324 cases of allegedly abusedinfants whose cases had been variouslyreported in more than 100 medical arti-cles about shaken baby syndrome. Of the324 cases, Leestma analyzed 57 of themspecifically because they involved confes-sions to shaking. These cases had enough“data” on which he was able to make anindependent judgment about the author’sclaim of scientific and medical reliability.Of those, Leestma found that only 11had both a confession to shaking and noevidence of impact. Eleven cases, whichwere gleaned from three decades of med-ical literature, hardly add up to enoughevidence-based medicine to prove thehypothesis that the babies were injuredby human shaking, alone. And, keep inmind that not all blunt impact injuriesresult in evidence of external or internalimpact, especially if the baby’s skullchanged shape on impact and resumednormal shape after.

To any serious scientist or physician, andto judges, it should be common sensethat confessions are not reliable indica-tors of the science head injury causation.

The circumstances of the confessions inthe eleven cases were not included in the

articles. A person, perhaps like Jaspers,might confess to shaking alone, becausethe impulse behind it is emotionallyunderstandable. Hitting or slamming ababy’s head is much less forgivable. Aconfession to shaking, alone, is more like-ly to help in plea negotiations and at sen-tencing than if the defendant were to say,“I shook the baby violently then slammedher head against the mattress.” Simplyput, as with other areas of criminal law,many confess out of sheer terror—orbecause they are actually made to believethey did cause the injury. A sentencingdeal gets a defendant a lower sentence,instead of risking life without parole orthe death penalty after jury conviction.

Others, who have found a baby notbreathing and blue (cyanotic) confess toshaking the baby to revive them. Oneyoung father in Erie, New York weptbefore grand jurors in 1999 telling themthat when he shook his baby boy to revivehim on finding him not breathing, he didnot know he was causing the terriblebrain damage the doctors told him killedhis son. In fact, the father’s own injuriescorroborated that had fallen down thestairs with the child and the baby’s headhad been banged. But, no one wanted torule out SBS. Why bother?

The fact is no one has ever confessed toshaking a baby with force equivalent tomore than 6,000 to 7,000 radians persecond (squared) necessary to cause braininjury in the absence of impact. If theyhave confessed to injury by shaking,alone, the 1987 Thibault study provesthey are lying or have been manipulated.In fact, some biomechanicians and neu-rosurgeons believe that because the baby’sbrain is smaller than an adult’s, it wouldtake even more force to injure a baby’sbrain by “whiplash.”

DOCTORS DESTROY

THE PRESUMPTION OF INNOCENCE

“Confessions” to revival shaking are usu-ally recorded and repeated in medicalrecords by doctors and nurses who,because of their training thatSDH’s+RH’s=SBS, are presuming foulplay when the child comes to the emer-gency room. Most states—as a require-ment of federal funding for all kinds ofchild-centered programs—have enactedstatutes mandating that doctors and


T H E W A R R I O R • F a l l 2 0 0 3 39

nurses (and others) report child abuse. Inmost states, the standard for reportingabuse is a mere “suspicion” that an injurywas caused by abuse. A mere suspicion isdangerous to report when it involves a“syndrome” like SBS that is both a state-ment of diagnosis and a statement ofinjury causation. As the machinery of theState gears up, this mere suspicion-cum-diagnosis quickly morphs into probablecause and, by the time of trial, hasbecome a diagnosis to a reasonable degreeof medical probability or certainty. Ineffect, what frequently happens is thatthis systemic glitch allows self-appointedjudges and jurors wearing white coats topull the plug on the presumption ofinnocence.

A QUESTION OF INTENT

Why, in face of the increasing scientificflap about shaking, doesn’t the State justdrop the “violent shaking” language fromits indictments, opening statements andclosing arguments? Why, like the Salemwitch trials, does the State insist on spon-soring only one side of the scientificdebate? The answer lies in the need forintent. The argument goes that there isno way a person could accidentally andviolently shake a baby to death. And, justin case someone should claim diminishedintent for such an act, in at least onestate, parents of newborns are now madeto watch a video in which they are taughtat the hospital—and sign a declarationthat they understand—that shaking caus-es brain injury to babies. Should theirchild appear in the ER with injuries “con-sistent with SBS,” the prosecutor’s cross-examination of the testifying defendant-parent with this document is not hard toimagine.

Philosopher Thomas Kuhn in his book,“The Structure of ScientificRevolutions,” explains that scientific rev-olutions happen when people start think-ing outside the box, in what he calls “newparadigms.”

In the area of SBS, we are locked in anold and destructive paradigm that, as inthe times of Aristotle, is promoted by theauthority of the speaker—in this casesome ideological segments and membersof the medical establishment—and notthe quality or reliability of the headinjury science.

The federal and state governments andprivate foundations currently pump mil-lions of dollars every year into “recogni-tion and prevention” programs to stop so-called SBS. It has become a self-perpetu-ating industry of child abuse ‘expertise.’Money for much-needed research intothe actual cause of pediatric head injury,the results of which could end the risk offalse accusations and, possibly, free somemoms and dads from behind bars andreunite them with their children, is fun-neled into the wrong pockets for thewrong cause. Physicians who have stakedtheir careers on SBS being a real diagno-sis, who have published, received grants,and who have testified in countless trialsare understandably reluctant to buck thesystem that feeds them. And, in face ofthis powerful lobby, accused and convict-ed child abusers are not much of a match.

When Illinois Governor George Ryanfreed some of that state’s death rowinmates and commuted the death thesentences of others in January, 2003, hesaid: “I started this issue concerned aboutfairness. Fairness is fundamental to theAmerican system of justice and our wayof life.”

Unfortunately, the topic of SBS, while nomore important, is much more complexthan ruling someone out as a culprit byDNA testing. And, there may be morepeople in prison wrongly convicted ofchild abuse than any other segment of theprison population. Nevertheless, when itcomes to the relationship between par-ents and children, as well as questions ofliberty, it is perhaps even more importantto be patient in unraveling this mess as itis with DNA innocence cases.

Fairness is fundamental, and junk scienceused to convict is fundamentally unfair.

SBS is a ‘diagnosis’ from Hell for it sets inmotion the machinery of the Stateagainst parents and others who merelywent to the hospital desperately seekinghelp for a sick child and ended up inprison and, more often than not if thechild survives, with their parental rightsterminated.

If you have a case of alleged SBS, there isa defense. The evidence is that humanshaking, alone, does not injure babies’brains. The evidence is that short fallsmay cause catastrophic and sometimes

fatal brain injury. The evidence is thatthere are many other causes of intracra-nial and intercerebral injury and retinalhemorrhages in babies that are just beingignored and that other potential causesare not being researched.

Instead of applying the scientific methodto this area and using the evidence, manyphysicians seem content merely to gazeupon the elephant in the moon. Aslawyers, it is our job to expose themouse’s tail in the telescope. q

ENDNOTES

1 This is part of a book currently being writtenby Elaine Whitfield Sharp. Copyright byElaine Whitfield Sharp, July, 2003. Permissionto publish given to The Warrior.

2 Huber, P. W.,“Galileo’s Revenge—JunkScience in the Courtroom,” p 27, BasicBooks,1991.

3 Credit for this excellent discussion of thedevelopment of the scientific process goes to,“The Five Biggest Ideas in Science,” Chapter1, Wynn, C.M and Wiggins, A.W., (Wiley,1997).

4 Squared: With each passing second as anobject falls the force of gravity, which isapproximately 32.2 feet per second, is doubledor “squared.” Thus, for the first second, thespeed of the fall is 32.2, and for the nextsecond, it is 64.4, and so on.

5 The “dura mater” is a meningeal covering ofthe brain beneath which “sub” dural bleedingoccurs.

Next Issue:

When it comes to protecting children, itmight seem like scientific sophistry to arguethat only impact is capable of causing braininjury to a baby. But, it has critical impli-cations. Many accused of shaking a childhave explained that the child suffered ashort fall. According to the 1987 Thibaultexperiment, and all the other head injuryresearch, these accused people were tellingthe truth about one thing: they had notcaused these injuries by shaking. Bluntimpact, on the other hand, could just aswell be caused by an accidental fall from ashort height as it could from being hit. Itone falls three to four feet, one hits theground at 10 miles per hour. This intro-duces the notion of accident in an areawhere the State claims only intentionalshaking caused the injuries. In the next issuein Part II, the science of blunt impact andissues of timing of the injury will be dis-cussed. Part III will outline how to chal-lenge the State’s ‘science’ using the state ver-sions of Daubert and Frye.


Documents

I The Elephant On The Moon Law Review On Sbs