Shaken Baby Syndrome convictions rely on junk science and tunnel vision

As we have reported, the reliability of forensic evidence is increasingly questioned; and Shaken Baby Syndrome convictions rely on junk science and tunnel vision, writes Chris Brook* in this extract from his latest blog.

Earlier this month, Jesse Vinaccia was sentenced to 8.5 years jail for supposedly shaking to death his then girlfriend’s 17 week old son. The number of statements made by the expert witnesses during the trial that lacked any scientific foundation are too many to document in one blog post.

Dr. Jo Tully, Deputy Director of the Victorian Forensic Paediatric Medical Service at the Royal Children’s and Monash Children’s hospitals, wrote in her report that ‘The presence of sudden unexplained collapse, intracranial haemorrhages, retinal haemorrhages and cerebral hypoxic ischaemic injury in an infant indicates head trauma that was almost certainly caused by acceleration−deceleration and rotational forces.’

At trial, Tully stated that ‘When you have the pattern of subdural haemorrhage, retinal haemorrhage and encephalopathy seen in Kaleb, then I do not believe there is a medical controversy about that diagnosis, no.’

insufficient evidence

Never mind that one of the world’s premier medical evidence review organisations, the Swedish SBU, made an exhaustive two year review of all the literature and found that there was insufficient evidence to support such a diagnosis. Let’s just ignore that shall we? Not even mention it to the jury. No controversy here! No reasonable doubts! Those Swedes are being unreasonable! They don’t even constitute a controversy! Why mention the Swedes when we can draw on confession studies (see here) about which we have no expertise and know next to nothing! The Swedes are irrelevant and the jury does not need to hear about them! No mind that this was by far the most comprehensive review of the literature pertaining to Shaken Baby Syndrome made anywhere in the world!

The evidence of the experts against Jesse Vinaccia is not corrupt. But the fact that the experts are convinced of guilt, and the fact that they are convinced that they are fighting for helpless infants, leads to what I like to call ‘noble cause bias’, which leads to confirmation bias whereby they use very, very low quality evidence to support their views on shaken baby syndrome, and ignore all evidence that contradicts their view. Tunnel vision.

* Chris Brook is a scientist with a legal background, who is concerned about the way that science is mis-understood and mis-used in our criminal justice system.

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10 Responses to Shaken Baby Syndrome convictions rely on junk science and tunnel vision

  1. Another Peter says:

    For those of us like me who would like to try to understand the Shaken Baby Syndrome controversy better, this long read in The Guardian might help: https://www.theguardian.com/news/2017/dec/08/shaken-baby-syndrome-war-over-convictions.

    Moving on to the other topic mentioned by Chris….

    Between Gordon Wood’s conviction and his successful appeal many years ago, I went to The Gap where I spoke to a worker who had retrieved the bodies of hundreds of suicide jumpers in the previous couple of decades (not including Caroline Byrne – her body was retrieved from the bottom by Lisa Camwell and Mark Powderly if my memory of their nanes is OK). Almost all the suicide jumpers had jumped from The Gap onto the tessellated pavement area at The Gap, where only a metre of two of run-up is possible due to the location of the fence at that time. Not Caroline. The location of her body – not at the tessellated pavement but in the rocks to the north of it – and the angle of her feet made it clear that she left the cliff edge from Gap Bluff, just north of The Gap.

    Professor Cross assumed she had to run up in a straight line, which would make her maximum run-up less than 5 metres. There is no reason to make such an assumption. In my opinion the most likely way to commit suicide at Gap Bluff would have been to climb across the safety fence, run beside the fence towards the edge for about 6m, then veer slightly left for the last metre or two so you leave the edge roughly at right angles to the edge. Assuming Caroline did that, she would have been absolutely on target for both the possible landing spots which is quite likely, but with a 7 or 8 metre run-up, not the much shorter one that the trial, the appeal, the suit and the appeal against the suit all wrongly assumed. With this longer run-up, Caroline should have overshot comfortably both landing spots mentioned in the trial. I’m confident that the reason Caroline did not land even further out than she did (which is the real question once the wrong assumptions are corrected) is that she did not run up at full speed in her jump.

    The prosecution at his trial, and leading up to his appeal, would not provide the defence with a scatter diagram of where other suicide jumpers had landed, compared to Caroline. Instead, the prosecution and the media clung to the misleading concept that she landed much further out than the other suicide jumpers, without letting on that this was like comparing apples to oranges – Caroline had jumped from a different location, as the employee at The Gap told me. The entire trial, appeal and the two mire recent court cases are all based on wrong “facts”.

    There’s more, much more, to that case. Many other assumptions made at the Wood trial and in the media were as inaccurate as the “science” presented by the expert witness about the carbon monoxide levels at Jeffrey Gilham’s concurrent trial – “science” which was shown to be wildly incorrect at Gilham’s successful appeal.

    My point is that one of the big problems of the junk science used in Australian courts is wrong assumptions. “Garbage in, garbage out”‘ I was taught when I studied science. I can give more examples from other major Sydney trials, if anyone wants.

    • andrew says:

      Thanks Peter, this makes the prosecution’s speculation about Gordon Wood murdering Caroline Byrne even more reprehensible and Prof Cross’ evidence even more meaningless. And that was the key evidence against Wood. The legal system should be ashamed of itself – and not only over this case.

  2. Chris says:

    Hi Brian,
    your question of which experts know what they are talking about and which do not goes to the heart of forensic science problems. Experts are allowed to give their opinion, when they are supposed to inform the court about the science. Sometimes their opinion has no basis in science, but they are allowed to give that opinion anyway, and this opinion is very persuasive to the jury, even though it is unsubstantiated.

    As an expert witness, Jo Tully is an ‘officer of the court’ who is supposed to provide the court with objective information about these brain injuries. She said that she believes the brain injuries can only occur through shaking. But she neglects to say that the most thorough and comprehensive review done anywhere in the world to look into whether her belief has any evidentiary support, found that it did not. It found that there was no scientific basis to her belief. She has an obligation to the court to point that out very clearly. Expert testimony should be about science and evidence, not opinion and belief.

    • Peter says:

      I haven’t read about this case but I find it difficult to believe that a medical expert would say “that she believes the brain injuries can only occur through shaking.”

      I don’t have a medical background but I am very sure that a fall can cause a brain injury. So can a punch, etc. In other words, I am very sure that shaking a baby isn’t the only way that one can cause a brain injury. But all these other ways of causing a brain injury will also most likely cause an external injury to the skull and the tissue. Shaking a baby most probably won’t cause any external injuries.

      Can you please provide me with the relevant link where I can read what that expert said.

      • Chris says:

        Indeed short falls can cause the triad of brain injuries. As can many medical conditions including hydrocephalus and meningitis.
        But the doctors simply state that these alternatives are unlikely in the case and state that the only remaining possibility is shaking. Indeed in the Jesse Vinaccia case, the infant was hospitalised for 3 days with a condition that has all the hallmarks of hydrocephalus including a bulging fontanelle and rapid increase in head circumference. The infant was released from hospital so it could attend a baby shower (I kid you not) and then collapsed the following day. The doctors simply said it was not hydrocephalus, but shaking. They projected no reasonable doubt. In another case, that of Jesse Harvey, the infant was hospitalised for 3 days for meningitis. He was then released but collapsed 2 days later. On the second admission to hospital, the doctors again treated him for meningitis. Then the same child abuse doctor arrived and said it was not meningitis but shaking. Her assertive testimony at trial again resulted in a conviction. Again, if the possibility of it being meningitis was raised by the doctor at trial, it would have meant acquittal. Such a possibility was thus not expressed. The defence did not question the cause or raise the possibility of meningitis, because they focused their defence on the “timing” argument of whether the shaking could have been by someone else at an earlier time. This all may seem surreal. But it is true. Tunnel vision.

    • Peter says:

      Chris,

      This is from a published comment that offers a critique on the article that you used as a reference for your opinion:

      “There is a plethora of scientific evidence that indicates that retinal haemorrhages are a cardinal feature of abusive head trauma characterised by repeated acceleration–deceleration forces with or without blunt impact trauma (shaken baby syndrome) and have high diagnostic sensitivity and specificity in particular when they are multilayered, too numerous to count, extend to the retinal edge (ora serrata) and occur with macular retinoschisis with/without surrounding retinal folds 3. The latter two critical entities are not mentioned anywhere in the report and nowhere is anything other than generic ‘retinal haemorrhage’ considered, a concept which runs counter to the very fabric of ophthalmology and its tools which strive to distinguish and characterise specific types and patterns of haemorrhagic retinopathy. Multiple studies have shown that such details about retinal haemorrhage have great diagnostic significance 4-6. To ignore these descriptors is like saying that a rose is no different than any other ‘flower’.

      https://onlinelibrary.wiley.com/doi/full/10.1111/apa.13834

      • Chris says:

        Hi Peter. That statement you quote is simply not true. There is zero scientific evidence that “indicates that retinal haemorrhages are a cardinal feature of abusive head trauma characterised by repeated acceleration”. Zero. The paper he links to (which is his own paper I add) employs circular reasoning. As was pointed out by the Swedes. Circular reasoning is not science and it is strange that Levin does not understand that, I guess he was never trained as a scientist. Note that to continue to refer to circular reasoning in this debate, after it has been pointed out, goes beyond ‘bad science’ into the realm of scientific misconduct.
        https://www.ncbi.nlm.nih.gov/pubmed/28608979

    • Peter says:

      Chris,

      Further to my first reply to you:

      I was very curious to find out what the medical expert witness actually said at the trial so I decided to research the matter as I simply didn’t believe that anyone with a medical degree would say what you wrote she said.

      The paragraphs enclosed by the dashed lines below are from your blog:

      —————-

      “Dr. Jo Tully, Deputy Director of the Victorian Forensic Paediatric Medical Service at the Royal Children’s and Monash Children’s hospitals, wrote in her report that

      ‘The presence of sudden unexplained collapse, intracranial haemorrhages, retinal haemorrhages and cerebral hypoxic ischaemic injury in an infant indicates head trauma that was almost certainly caused by acceleration−deceleration and rotational forces.’[2]

      At trial, Tully stated that ‘When you have the pattern of subdural haemorrhage, retinal haemorrhage and encephalopathy seen in Kaleb, then I do not believe there is a medical controversy about that diagnosis, no.’[3]”

      ——————-

      My question is: how did you interpret any of the above to mean that Dr Tully said

      “that she believes the brain injuries can only occur through shaking.”?

      You left our the context and have totally misinterpreted by overinterpreting what Dr Tully meant.

      It is now clear to me that within the particular case she was offering her expert medical opinion on that she didn’t believe that there was any other reason for the pattern of the listed ‘symptoms’ other than being the result of the baby being shaken.

      As for Dr Tully not mentioning the study you are referring to: either she wasn’t aware of it or did know about it but was of the opinion that the study wasn’t correct with respect to some issues, such as the issue that was raised in my earlier comment. It is generally up to the defence to have its own expert to offer their own opinion.

      I am totally ignorant of the literature in this field other than what I read since my first reply to you this morning. Even so, I would be sceptical of fully accepting the study that you seem to have taken on wholeheartedly. You will find that even when an expert in a criminal trial provides evidence that is based on one of the best understood sciences (equations of motions that describe a falling body) that there are lawyers, judges, journalists and the general public who will call it junk science. Just read how the work of a former associate professor of physics was and is still treated in some quarters (the work of Rodney Cross in the Gordon Wood case).

      • Chris says:

        Peter. Please read more on the topic before jumping to conclusions or accusing me of not being on top of the topic. Firstly I can 100% assure you that Tully is, and was at the time, 100% aware of the Swedish study. Secondly, the quotes from Tully are not taken out of context, nor are they misinterpreted. She said that the injuries to the infant could only have been caused by shaking. That evidence is what got Jesse Vinaccia convicted. I am sorry if my blog does not include enough of the trial transcripts for that to be clear, I try to make my posts readable. I do not cherry pick or misrepresent, at least I try hard no to. If she did not say that, then there was no evidence against him. There is no scientific evidence linking those brain injuries to shaking. None.

        Finally, on a totally different topic, Rodney Cross’s work actually was junk science. And I am a physicist. Cross crossed the line from science to advocacy. He even admits that himself in his book where he describes how he reacted to the defense barristers questioning. His spear throw experiments make no sense whatsoever.

  3. Brian Johnston says:

    Are we supposed to believe that in the above case there were no haemorrhages and no cerebral injury. It just happened on its own or did not happen at all.
    I accept that Dr Jo Tully may be correct and what jury would know enough to say she is wrong.
    Some experts do know what they are talking about. Which ones?
    I am sure some cases are wrong and that Chris Brook raises valid points.
    I do not have faith in the justice/jury system.

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