I was introduced to shaken baby syndrome over a decade ago as an attorney for a local father in a family court case.  He was accused of seriously injuring his child by violent shaking.

I doubted the theory then, and I doubt it now.

After years of appeals and delays, the Texas Supreme Court last month ruled that the execution of a man convicted of the death of his child in a high-profile shaken baby case can go forward.  It seems that little has changed in either medicine or law.

A 2013 Texas law (colloquially known as the Junk Science Law) allowed prisoners to challenge criminal convictions by arguing that the convictions were secured by using now-disputed forensic evidence such as bite marks, hair-particle evidence, and arson investigations formerly thought unassailable by the medical and legal communities.  Shaken baby syndrome (SBS), also known as abusive head trauma (AHT), is a worthy candidate for the list.

SBS was coined in the early 1970s to describe what adherents contend is a characteristic set of head injuries found in infants who have been subject to violent shaking — swelling of the brain, bleeding around the brain and bleeding in the retinas — but who show no visible sign of abuse. 

The American Academy of Pediatrics continues to embrace “shaken baby syndrome” as a valid subset of the AHT diagnosis.

In the Texas case, Robert Robinson was sentenced to death in the 2002 killing of his two-year-old daughter, Nikki.  Medical experts for the prosecution testified about internal head conditions and other factors that they interpreted as evidence that Robertson had shaken Nikki so violently that she died.

Robinson’s attorneys argued that the child, who was ill at the time, died from complications from double pneumonia.  She had fallen from her bed not long before Robinson brought her to a local emergency room.

The Dec. 2011 edition of the American Bar Association Journal cited the case of a Wisconsin appeals court granting a new trial to a woman convicted years earlier of the shaking death of an infant neighbor on the grounds that a “significant and legitimate debate” had developed as to whether babies can be fatally injured through shaking alone, whether a baby with a traumatic head injury can experience a significant lucid interval prior to death, and whether other causes may mimic the symptoms traditionally associated with shaken baby syndrome.  

A 2006 British study suggests that paroxysms of coughing associated with feeding difficulties or choking may lead to subdural and retinal hemorrhage.

My client (in my opinion) credibly denied injuring his child.  Nonetheless, the court agreed with the medical expert that violent shaking caused the injuries.

I later discovered that the child had experienced severe constipation while spending a long weekend with relatives.  Was it possible, I theorized, that the child’s arduous efforts to have a bowel movement that weekend caused brain swelling and bleeding that did not evince SBS symptoms until the child was later returned to the child’s father?

Fortunately, no criminal charges were filed, and the child eventually returned home, but the case has bothered me since.

Although I do not pretend to be an “expert,” I would caution the “experts” in these cases about the risk of confirmation bias: the tendency to interpret new evidence as confirmation of one’s existing beliefs or theories.

As I wrote a decade ago, “as in the laboratory, so in the courtroom, so-called settled science may be neither settled nor science.”

Gerald McOscar is a West Chester, Pa. attorney and occasional author.  His work has appeared in numerous newspapers and periodicals, online and in print.

Image via Pixabay.