McMahon, McMahon & Lentz - Homicide - Shaken Baby Syndrome
Debunking the “Last One Holding the Baby is Guilty” Theory in Shaken Baby Cases
In almost all reported “Shaken Baby Syndrome” criminal prosecutions, the evidence is entirely circumstantial butressed by expert medical testimony which is often misleading and unreliable in important respects. There are rarely eyewitnesses to a shaken baby incident. Hence, the last person holding the baby closest in time to when acute visible distress is first observed, will almost always be law enforcement’s immediate and sole focus of its investigation. This is due to a climate of collaboration between law enforcement and the pediatric medical community in which the relevant medicine presented to juries is often grossly overstated and tailored to fit the prosecution’s theory in baby shaking cases.
A typical “shaken baby” incident occurs when the perpetrator vigorously shakes the baby in anger or frustration, which causes the baby’s head to be violently thrust backwards and forward. This whiplash-like mechanism of injury, arises from the baby’s under-developed neck muscles and the disproportionate weight of the baby’s head. The result is that the child’s brain, through the forces of physics, careens back and forth, within the hard, boney interior cavity of the skull which causes rupturing of blood vessels in the brain and resultant hemorrhage.
It is not the initial injury to these blood vessels which is the immediate cause of death or permanent neurological injury. Rather, a direct consequence of the initial trauma and resultant hemorrhaging from the ruptured blood vessels is severe brain swelling which deprives the brain of oxygen causes; outward manifestations of the baby’s physical distress, and often ultimate death. Therefore, the lynchpin medical-legal issue in baby shaking cases is: how long is the time-line between the moment of the baby shaking incident until the baby manifests noticeable indicia of physical distress such as lethargy, crying, difficulty breathing and/or blueness of skin color.
The convenient consensus answer of law enforcement and the mainstream pediatric medical community is that the time-line is immediate or almost immediate. However, this black and white conclusory approach summarily dismisses any shades of gray by not fairly taking into consideration a basic, crucial medical principle as well as important relevant factors particular to the specific baby and incident. First, the process of brain swelling from hemorrhage in a baby arising from a shaking incident is not instantaneous, but takes time to develop measured in at least hours before the resultant brain oxygen deprivation causes outward physical signs of distress in the baby. This in large part is due to the fact that a baby’s skull is not yet fully formed as an adult, and will expand under swelling pressure which may further prolong the time-line of physical manifestation of distress. Secondly, the nature and severity of the particular shaking incident will vary in degree and force on a case by case basis. Thirdly, the particular baby’s outward physical manifestations of the shaking incident may be masked by a normally fussy baby, crying baby or a baby who sleeps often on a case by case basis.
Based on all of the above factors, the “Last One Holding the Baby” Theory routinely utilized by police and prosecutors in baby shaking prosecutions is fundamentally flawed as a blanket “one size fits all approach”. As such, it may place any innocent person last holding the baby at grave risks for prosecution and punishment for a crime actually committed earlier by another care taker of the baby.
A case in point is the criminal prosecution in Commonwealth of Pennsylvania vs. Owen Johnson, in which the Commonwealth sought the death penalty against Owen Johnson for the baby shaking death of his five month old baby Samantha. Owen Johnson and the baby’s mother, were the sole caretakers of Samantha. They were also both deaf and Samantha was their first child. A Lancaster County jury, after it heard dramatically conflicting medical testimony from the prosecution and defense as well as testimony from Owen Johnson, found Owen Johnson innocent of all charges. The baby’s mother who was home during the entire day of the incident never took the witness stand.
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