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"We believe you harmed your child": Bad Science leads to wrongful convictions in Arizona

Thousands of cases nationwide involve the highly disputed Shaken Baby Syndrome Theory, a contsted science that is leaving parents to blame for a crime they did not commit.

The story of Drayton and Maria Witt

Drayton and Maria Witt watched their infant son Steven suffer for months. Born with his umbilical cord wrapped around his neck, Steven endured severe medical problems almost every day of his life. In May of 2000, Drayton and Maria, both Phoenix residents, visited Steven’s pediatrician constantly, returning with a new problem each time.

That May, Steven spent six consecutive days at Phoenix Children’s Hospital.

Then the seizures began. Shortly after taking antibiotics for flu-like symptoms, Steven’s eyes would begin to lack focus, his body would go limp on occasion, and he would shake. Steven repeatedly threw up, and the seizures became more frequent.

Steven died in the summer of June 2000. That day, Steven suffered yet another seizure in the back of the car as Drayton drove. Steven was rushed to Paradise Valley Hospital. Steven stopped breathing as the couple raced to the hospital, and Drayton began performing CPR as Maria drove. Upon arrival, Steven was later flown to Phoenix Children’s Hospital.

The next morning, the physician reported that Steven died.

Yet, despite Steven’s complicated medical history, the police questioned Drayton about Steven’s retinal bleeding, which suggested a non-accidental head injury. Eventually, the State of Arizona charged Drayton with Steven’s death. Oddly enough, Maria was not charged. Drayton maintained his innocence, but in 2002, he was found guilty and sentenced to 20 years in prison.

Much of the evidence at the trial revolved around the theory of Shaken Baby Syndrome (“SBS”)—a theory that originated in 1971.

Shaken Baby Syndrome in a Nutshell

In short, SBS is the combination of three concurrent symptoms: subdural hemorrhaging—or bleeding between the layers of brain tissue, retinal hemorrhaging—or ruptured blood vessels in the retinal tissue at the back of the eye, and cerebral edema—or swelling of the brain. According to SBS, rapidly shaking an infant back-and-forth and side-to-side creates these telltale symptoms.

Taught in medical school training, there are more than 1,000-1,600 SBS diagnoses per year. In fact, SBS is cited as the second most common cause of death in children under one year of age, right after sudden infant death syndrome.

SBS gained popularity during the 1990’s, and allowed medical experts to provide nearly the entire criminal case: the timing of the injury identifies the perpetrator, and the high level or force establishes the causation and the mental culpability of a least recklessness.

Recent SBS Criticism

As popular as SBS has become, it has also been heavily criticized too. Here are the biggest concerns regarding SBS.

Many from the medical community urge that shaking a baby does not lead to spinal or neck injuries

In Commonwealth v. Martin, Raymond Martin was found guilty of excessively shaking his 3 month old son. 290 S.W. 3d 59 (2008). SBS was the theory that the prosecution used during the trial to convict Raymond. Dr. Uscinki, who testified for Raymond, stressed that that shaking a baby alone could not produce enough force to cause the trifecta of injuries that would cause spinal or neck injuries. After much consideration, the Kentucky Court of appeals revisited whether SBS should have been allowed into the trial. Ultimately, the Court of Appeals reversed, having this to say:

The Court can only conclude that SBS has not gained wide or general acceptance in the scientific community for the purposes of allowing an expert to testify that a baby has been subjected to abuse when the baby exhibits a subdural hematoma, bilateral ocular bleeding with no other manifest injuries such as bruising, broken bones, etc.

The Court can further conclude that based on the medical signs and symptoms, the clinical medical and scientific research communities are in disagreement as to whether it is possible to determine if a given head injury is due to an accident or abuse.

The symptoms of shaken baby syndrome may be misdiagnoses

Another well-known criticism is that the SBS symptoms mentioned above are also signs and symptoms known to other diagnoses as well.

For example, Teresa Engberg-Lehmer, Joel Lehmer and Sean Ralston were all wrongfully convicted under the theory of SBS. Yet, later evidence revelated that their infant children in these cases all suffered from sudden infant death syndrome—a diagnosis that contains the exact same symptoms of SBS: retinal hemorrhages, internal bleeding and brain damage.

Other misdiagnoses include Hypoxic brain damage, found in the case of Krystal Voss, and sickle cell anemia, like in the case of Melonie Ware. According to a 2015 Washington Post investigation, 16 shaken baby syndrome murder convictions were overturned.

Despite heavy criticism, SBS is used today in criminal cases

In short, while the presence of these three signs was previously understood to be exclusively characteristic of SBS during the 1990’s and early 2000’s, new and emerging science suggests otherwise. SBS is one of many areas of forensic science investigation that is constantly called for renewed scrutiny.

Yet, as controversial as SBS is within the scientific community, courts nationwide continue to give deference to forensic expert testimony on this theory, making it appear more reliable than it really is.

Once law enforcement authorities preconceive assumptions that a child suffered from SBS, it employs SBS as the legal theory to prosecute, despite conclusions of other medical experts who also examined the baby. Arizona is no exception to the SBS theory, a fact all too familiar for Drayton Witt.

Drayton's post-conviction appeal

After his 2002 conviction, Drayton appealed his conviction and attracted much interest from doctors who oppose SBS. The medical examiner, who originally ruled Steven’s death a homicide, stated that if he were to testify in court again, he would have concluded that Steven had died of disease, not physical abuse. As the examiner stated:

“There is now no longer consensus in the medical community that the findings I reported in my autopsy report are reliable proof of SBS [shaken baby syndrome] or child abuse… Steven had a complicated medical history, including unexplained neurological problems. He had no outward signs of abuse. If I were to testify today, I would state that I believe Steven’s death was likely the result of a natural disease process, not SBS.”

In 2012, after 12 years of imprisonment, Drayton’s conviction was dismissed, thanks to the help of the Arizona Justice Project. Ultimately, Steven’s overlooked medical issues, coupled with a false confidence in SBS led to Drayton’s conviction. Maricopa County Superior Court Judge Robert Gottsfield dismissed Drayton’s case.

Today, Drayton and Maria continue to reside in the greater Phoenix area. They also continue to advocate for awareness regarding the SBS theory.

The importance of getting it right

These untrue stories of the wrongfully convicted are among the most difficult narratives to replace in the public consciousness. Today, our U.S. Criminal Justice System has taken 24,609 years of freedom from people who wrongfully convicted.

If the criminal justice system is willing to base its prosecution on unsettled science, then it must be also prepared to reexamine these same cases when new science or criticism emerges. Arizona Defense attorneys and prosecutors alike must walk the line of advocacy for their client, premised upon fairness, and transparency. Like any defendant, state prosecutions must be responsible with the evidence they present in order to avoid wrongful convictions like Drayton’s.

Our duty to the truth demands no less.

If you have a post-conviction claim, our office knows the importance of setting the record straight. Call (480) 545 – 0700, or visit Chuck Franklin

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