by Matthew Clarke

The term “junk science” does not quite cover the revolution in our understanding of the diagnosis of shaken baby syndrome. Medical experts now know that their belief in how to diagnose a clear sign of child abuse based upon a determination of shaken baby syndrome was mistaken. This new understanding may cast doubt on hundreds of murder, assault, and child abuse convictions.

In the 1970s, pediatric neurosurgeon Dr. Norman Guthkelch advanced the hypothesis that babies showing a certain pattern of injuries had been violently shaken. He thought he was on solid scientific footing. He adamantly believed that such babies—especially those with the so-call “triad” of brain swelling, together with bleeding on the brain’s surface and behind the retinas—were victims of abuse even if there were no outward signs of injury. “Shaken baby syndrome” soon became a medical consensus. In court, it was accepted as a scientific fact and used to convict hundreds of defendants.

However, over the past two decades, newer scientific research has proven that accidents, diseases, and genetic conditions can cause the damning triad and other symptoms associated with shaken baby syndrome. This has undermined faith in the credibility of a shaken baby syndrome diagnosis to the point that, in 2009, the American Academy of Pediatrics (“AAP”) recommended that doctors cease using the term, especially in light of the potential legal, both criminal and civil, ramifications of such a diagnosis. The AAP explained that “advances in the understanding of the mechanisms and clinical spectrum of injury associated with abusive head trauma compel us to modify our terminology to keep pace with our understanding of pathologic mechanisms.”

But what does that mean for the people who have been convicted of assault or murder based on the triad? In 2015, the Medhill Justice Project in the Journalism Department at Northwestern University complied data covering the previous 20 years. The data showed that over 3,000 criminal cases in the U.S. involved shaken baby syndrome. A Washington Post investigation turned up 1,600 shaken baby syndrome convictions of parents and caregivers since 2001, 16 of which were subsequently overturned. According to the New Scientist, at least three of the 1,600 ended up on death row.

Zavion Johnson was one of the 1,600. The then-18-year-old Sacramento, California, father called an ambulance on the afternoon of November 21, 2001, and reported that his daughter had stopped breathing. At the hospital, doctors found internal head injuries and a fractured skull. Suspecting abuse, they called police.

Johnson would later tell his family that he accidentally dropped Nadia while they were taking a shower that morning. The baby’s head hit the back of the cast-iron tub, but she seemed okay thereafter. The frightened teenager didn’t tell this to police when they initially questioned him. That decision would cost him dearly.

Johnson was charged with murder. At the trial, multiple witnesses testified that he was a gentle and loving father who never mistreated the baby. None of the prosecution witnesses contradicted this. They didn’t need to. Instead, the prosecution had three medical experts who testified that the injuries Nadia received could only have been caused by violent shaking, not a short fall. The prosecutor used that testimony and Johnson’s inconsistent statements to the police to convict him. Johnson was sentenced to 25 to life in prison.

In 2017, two of the prosecution’s experts disavowed their trial testimony, and even the district attorney now supports Johnson’s attempts to have his conviction overturned. Dr. Gregory Reiber, the forensic pathologist who performed the autopsy on Johnson’s daughter, said based on significant changes in the understanding of childhood head injury, his opinion has changed, and he now believes her injuries “are consistent with the accidental fall in the bathtub described by Zavion Johnson.” Dr. Claudia Greco, a University of California-Davis neuropathologist who testified at the trial, now says the injuries do not prove that they were intentionally inflicted or that Johnson shook his daughter.

None of these revelations would have come out had Johnson not contacted the Northern California Innocence Project, after years of trying to get his case reversed on his own.

That’s when attorney Paige Kaneb got involved. “I’d been on another shaken baby case, so I’m a bit obsessed with the issue,” said Kaneb, who gathered evidence, got in touch with the prosecution’s experts, and eventually secured declarations disavowing their trial testimony.

On October 31, 2017, Kaneb filed a petition to have Johnson’s conviction overturned. The district attorney did not oppose it.

“Our decision … was not a difficult one,” wrote Chief Deputy District Attorney Steve Grippi in an email. “Had the information currently available on the topic been available then, there is a reasonable probability that the outcome of the trial could have been different.”

Although the ordeal cost Johnson 15 years of his life and so much more, he was eventually vindicated and set free. That’s the good news. The bad news is there are certainly more factually innocent men and women just like Johnson who are still in prison.  

That is all good for Johnson, but what about the thousands of other shaken baby convictions? Dr. Norman Guthkelch had said that it’s “high time every case of a parent in [prison] for this had his or her case reviewed” because “we went badly off the rails … on this matter.”

We at CLN couldn’t agree more. An automatic determination of abuse based on the presence of the so-call triad has been discredited by the medical community. Anyone convicted based upon the triad and in prison today should reach out to an innocence project, conviction integrity unit, or similar resource. In light of the medical and legal communities’ current understanding of shaken baby syndrome/abusive head trauma, people are listening and working to right the wrongs of the past. 

Sources: aap.org, medill.northwestern.edu, slate.com, washingtonpost.com

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