Emily Bazelon has a long, well-reported feature in the New York Times Magazine on new doubts about the diagnosis of shaken baby syndrome.
I wrote about this issue in 2009, and my column then inspired some spirited email responses. There is a small but growing part of the medical community that is skeptical of the diagnosis, and a very adamant larger group that says there’s no legitimate debate, here—the diagnosis is sound, and the skeptics are either nuts or are guns for hire.
I’m obviously not a doctor, but it strikes me that there’s something tantalizingly easy about the shaken baby diagnosis. It is based on just three symptoms, all internal, and can be made even when there are no external signs of abuse. Some experts and prosecutors claim that the diagnosis is enough by itself to prove (a) a crime has been committed, (b) who committed it (conventionally, the diagnosis implicates the last person who was alone with the child before the death or injury), and (c) the suspect had the requisite intent (the diagnosis includes the conclusion that the injury could only be caused by intense, vigorous shaking, which prosecutors usually argue in court shows anger and intent to harm).
If doctors find the triad of symptoms, there’s really no defense, unless the suspect attempts to show that someone else was also alone with the child shortly before the symptoms began to appear. (The symptoms are bleeding at the back of the eye, bleeding in the protective area of the brain, and brain swelling.)
The emerging group of skeptics attack both the diagnosis itself and how it’s used in court. They argue the triad of symptoms can be caused by incidents or medical conditions other than shaking, and that the injury itself could occur days before the symptoms begin to appear, instead of the hours or minutes often claimed in court. If true, both of those claims would destroy the half to two-thirds of shaken baby diagnoses in which the child showed no other signs of abuse.
One other note: It’s interesting how quickly the skeptics are dismissed as defense experts for hire. I’m sure there are no shortage of quacks offering their services to criminal defense attorneys. But regular readers of this site have seen enough horror stories by now to know that there’s nothing about testifying for the state that cleanses an expert of bias, either. If they’re outside consultants, they too are paid for their services. And if they actually work for the state as a medical examiner or in a state crime lab, the biases are built into the system.