Posted 9/17/11

A DAY LATE, A WARRANT SHORT

An investigative delay puts warrantless electronic tracking in front of the Supremes

     By Julius (Jay) Wachtel.  Thanks to a goof by the Feds and a friendly appeals court Antoine Jones is for the time being an extremely lucky alleged drug dealer.  Whether his fortune will hold will soon be decided by the Supreme Court.

     In 2004 the FBI and Washington D.C. police were investigating Jones, the owner of a D.C. nightclub, for running a  cocaine ring.  Agents placed a camera outside the club and got a warrant to listen in to his cellular phone calls.  They also obtained a warrant to place a GPS unit on the Jeep Grand Cherokee he was driving.  Federal law has never required agents to get court approval to plant a tracking device on a vehicle, so the step was apparently taken as a matter of prudence.

     Agents had ten days to install the GPS, but they didn’t get it done until the eleventh, while the Jeep sat in a parking lot in Maryland, a different judicial district.  Within days they replaced the battery, again in Maryland.

     In 1997 the Ninth Circuit affirmed the conviction of two suspected marijuana growers, Christopher McIver and Brian Eberle.  Their movements had been tracked for about ten days by Forest Service agents who attached a beeper to the undercarriage of McIver’s vehicle without securing a warrant.  Justices ruled that McIver did not have a legitimate expectation of privacy in his driveway, where the car had been parked, and that placing a device on his vehicle’s undercarriage was not a “seizure” deserving of Fourth Amendment protection.

     As the century turned law enforcement agencies were transitioning from beepers to the more modern GPS.  Signals emitted by beepers must be physically tracked with portable receivers that analyze signal strength and direction.  They are far less effective than GPS units, which place targets on a map with up to 50 foot accuracy.  On the other hand both kinds of devices perform the same function: to help keep suspects safely under observation while minimizing the risk of detection and using as few resources as possible.  Trailing vehicles in an urban setting without getting “burned” (or being involved in an accident) is an art form, and to successfully pull it off over any distance without the benefit of a tracking device can require multiple ground units and, preferably, air support.

     At the time of the Antoine Jones investigation the issue of planting tracking devices on vehicles had not been specifically addressed by the Supreme Court.  But it got close in 1984 when it ruled in U.S. v. Knotts that agents did not need a warrant to hide a beeper in a container of chloroform that was provided to suspected illicit drug manufacturers during a narcotics sting.  Agents used the device to help them follow the suspects’ vehicle on public roads and ultimately to a remote cabin.  They got a warrant for the cabin, and the fruits of that search were ruled admissible.

     In Knotts the surveillance only lasted a few days.  Antoine Jones was a different matter.  Helped along by the GPS unit the Feds trailed him for a month.  Using information from fixed and GPS-aided surveillance and wiretaps they obtained search warrants for several locations, recovering large amounts of cash, drugs and related paraphernalia.

     At trial Jones objected to the GPS evidence.  Since the delay had rendered the warrant invalid the judge issued a split ruling.  Evidence that stemmed from mobile tracking was admissible.  But he disallowed GPS information for periods during which the Jeep was in a private garage for which Jones had a reasonable expectation of privacy, as that could only be offset by a valid court order.  Jones and his principal codefendant, club manager Lawrence Maynard were eventually convicted of a drug trafficking conspiracy and got life.

     Then one of them got lucky.  It wasn’t Maynard.  Being caught in a van full of cocaine-soaked cash is pretty damning, and on August 8, 2010 the D.C. Circuit Court of Appeals affirmed his conviction.  But Jones was a different story.  His conviction relied on observations made during a GPS-assisted surveillance that went on twenty-four/seven for a month:

    Knotts held only that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another,” id. at 281, not that such a person has no reasonable expectation of privacy in his movements whatsoever, world without end, as the Government would have it.

Paradoxically, the D.C. circuit’s argument that Jones wasn’t controlled by Knotts was inspired by a passage in the latter:

    Respondent...expresses the generalized view that the result of the holding sought by the Government would be that “twenty-four hour surveillance of any citizen of this country will be possible, without judicial knowledge or supervision”... But the fact is that the “reality hardly suggests abuse”...if such dragnet-type law enforcement practices as respondent envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable.

As far as the D.C. Circuit was concerned a “dragnet-like” situation had come to pass and they weren’t going to let the government get away with it.  Jones’ conviction was overturned.

     Prosecutors were flummoxed.  “Dragnets,” they insisted, are when cops don’t know who did it so they round up the “usual suspects,” not when they have particularized suspicion and focus on just one.  But the D.C. circuit insisted that Jones is special:

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    The whole of one‘s movements over the course of a month is not constructively exposed to the public because, like a rap sheet, that whole reveals far more than the individual movements it comprises.  The difference is not one of degree but of kind, for no single journey reveals the habits and patterns that mark the distinction between a day in the life and a way of life, nor the departure from a routine that, like the dog that did not bark in the Sherlock Holmes story, may reveal even more.

     One circuit that reviewed similar circumstances and came to the opposite conclusion is the notoriously liberal Ninth.   In U.S. v. Pineda-Moreno (1/11/2010) justices approved the warrantless planting of a string of devices on a drug suspect’s vehicle over a period of four months.  One of the gadgets was a GPS device that stored location information, enabling officers to sit back and wait, then download the data when their target returned.

     That’s the approach that cops took in Wisconsin.  Eager to nail a meth cooker who bragged that he couldn’t be caught, they affixed a memory-type GPS device to his car, then retrieved it days later.  Officers learned that the vehicle had been on a certain tract of land.  Its owner gave consent to search.  Sure enough, cops found an improvised meth lab.  All they had to do was hide and wait until the suspect returned.  According to the Seventh Circuit (U.S. v. Garcia, 2/2/2007) planting the device while the car was parked in a public place wasn’t a significant intrusion, thus not a seizure.  And under Knotts tracking a vehicle isn’t a search.  It was all perfectly legal.

     It’s unlikely that the Supreme Court will let Jones stand.  Fiddling with established notions about what is public and under what conditions could upset an entire area of law.  How to legally plant a device without having a warrant was settled by Knotts.  And what supposedly wasn’t – the appropriate length and intrusiveness of warrantless surveillance – seems far too vague a concept to be a useful guide, at least as articulated in Jones.

     On the other hand, planting a beeper or GPS is not a trivial act.  One can empathize with the D.C. Circuit’s grasp for a means to corral what could be a dangerous beast.   Only a handful of states, including Florida, Minnesota, Utah and South Carolina require court authorization for tracking devices, but all that must be shown is that the information being sought is relevant to a criminal investigation.  Even if the Supremes were inclined to take it a step further and devise a rule, say, that calls for reasonable suspicion, they would probably want evidence that police have been abusing surveillance technology.  That presents a conundrum, as most of what we know about tracking devices comes from court challenges, and with rare exception (check out the video for an embarrassing flub-up) law enforcement officers seem to have acted properly.

     One thing’s for sure.  With all the flack that’s been stirred police are likely to pay closer attention to the circumstances under which high-tech surveillance takes place.  And that’s clearly a good thing.

Update (1/23/12):   In U.S. v. Jones the Supreme Court ruled that attaching a GPS device to a vehicle and using it to track its movements is a “search” under the Fourth Amendment, and therefore requires a warrant.

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From Eyewitnesses to GPS


Posted 7/22/11

DON’T BLAME THE MESSENGER

When jurors say that a case doesn’t add up, we ought to pay attention

     By Julius (Jay) Wachtel.  Just when we thought it was finally safe to turn on the news comes word that Casey Anthony didn’t visit a website eighty-four times seeking information about chloroform as the D.A. had claimed.  John Bradley, a Canadian software engineer who analyzed the family computer for the prosecution, determined after returning home that the site had only been visited once.  Worried that someone’s life might hang in the balance, he called prosecutors while the trial was still in session and volunteered to come back at his own expense to clear things up.  But they weren’t interested.

     As it turns out, the D.A.’s men didn’t bother to pass on the startling little tidbit to the defense.  Oops!

     Of course, now that Casey’s dealing with the problems of being free, whether someone clicked once or a thousand times hardly matters.  (Her mother said she was the one, but her timecards show she was at work.)  Yet it’s another example of the leaky evidentiary bucket that Florida’s finest tried to pawn off as a forensic tour de force.  With the help of CNN, which covered the trial in exhausting if not always dispassionate detail, let’s take on three key items of physical evidence.

     A single strand of hair.  Eager to prove that the victim’s body was left to rot in a car for days, prosecutors had an FBI trace evidence analyst testify about a single hair found in the trunk.  She said that the hair was microscopically similar to Caylee Anthony’s hair but not her mother’s.  A darkened area at the root was also consistent with post-mortem banding, suggesting that the hair had been attached to a decomposing body.

     On cross-examination, though, the analyst conceded that her evaluation was hardly conclusive.  In 2009 the National Academy of Sciences reported that “there is no scientific support for the use of [microscopic] hair comparisons.”  Post-mortem banding is even more controversial.  Lawrence Kobilinsky, the head of forensic sciences at John Jay College later told Time magazine that banding can also be produced by air pockets and determining its real cause is purely subjective.

     Another FBI expert analyzed the hair’s mitochondrial DNA.  That narrowed the strand’s origin to anyone in the Anthony maternal lineage, from the victim to her brother, mother and grandmother.

     Vapor of decomposition.  To bolster its claim that Caylee’s body decayed in the trunk prosecutors called Dr. Arpad Vass.  A sprightly fellow with a Ph.D. in anthropology, Dr. Vass is the proud inventor of a process that analyzes air samples for the signature of decomposition.  He testified that when a container of air from the trunk was opened he “jumped back a foot or two” because the odor of death was so pronounced.  What his instruments detected, he said, could have “only” been produced by the decay of human remains.  He also said that there were very high levels of chloroform.

     Prosecutors called Dr. Vass’s techniques “state of the art.”  On cross-examination, though, it became apparent that Dr. Vass, who lacks a degree in chemistry, was speaking only for himself.  His secret recipe is his alone.  What’s more curious is that the results he’s reported have never been replicated.  According to Dr. Kobilinsky, the process is “not junk science, but it never should be brought into a courtroom at this stage.”  As for the chloroform, Ruth Smith, a forensic science professor told Time that unless improbably large quantities were used, detecting it after so much time had passed was improbable.  “Chloroform's quite a volatile liquid, and it wouldn't really stick around for that long.”

     The duct tape.  Three pieces were found: one was still adhering to the victim’s skull and two were on the ground nearby.  Medical examiner Dr. Jan Garavaglia testified that her finding of homicide was based on three reasons: the alleged accidental drowning wasn’t promptly reported, the body had been hidden, and there was duct tape present in sufficient quantity and of sufficient size to cover the mouth and nose and lead to suffocation.  Her conclusion seemed like plain old common sense: “There is no child that should have duct tape on its face when it dies.”

     Over defense objections prosecutors played a grisly video that depicted strips of duct tape superimposed over the victim’s nose and mouth.  Under cross-examination anthropologist Dr. Michael Warren conceded that there was no tape on the face when the body was discovered and that the video depicted only a “possible” means of death.  Still, the defense had to somehow neutralize the tape.  For that they turned to Dr. Werner Spitz.

     Dr. Spitz has a long and distinguished medical career.  He served as chief medical examiner in Detroit and assisted the commission that investigated the assassination of President John F. Kennedy.  As a pathologist for the defense his best-known work has been for Phil Spector, a music producer who was accused in the shooting death of a woman he invited to his mansion.  At the 2007 trial Dr. Spitz concluded that bloodstain patterns indicated that the victim’s wound was self-inflicted.  His testimony was credited for helping hang the jury.  (They voted 10-2 for conviction. Interestingly, the 2009 National Academy of Sciences report that discredited hair comparison did essentially the same with respect to bloodstain patterns.)

     Two years later, at Spector’s retrial, Dr. Spitz got into a prolonged argument with a prosecutor about his enormous fees.  Rattled by aggressive cross-examination, Dr. Spitz seemed evasive and unconvincing.  This time the verdict was unanimous: guilty.  Spector got nineteen years to life and remains imprisoned.

      At the Anthony trial, Spitz called the cause of death undetermined and criticized Dr. Garavaglia for conducting a “sloppy” autopsy.  He also insisted that the tape was only applied after Caylee’s death, perhaps to bind her jaw and skull.  Dr. Spitz later called the acquittal “the right decision.”

     Prosecution witnesses and trial observers ridiculed Dr. Spitz’s notions.  However improbable his testimony, though, it apparently resonated with jurors.  Interviewed after the trial, both the foreman and juror number three felt that not even the tape could prove that the child was murdered:

    ABC News:  I’m going to press you on this, duct tape, on a baby, in a bag, rotting in the woods.  Most people look at that, they put two and two together, they say it’s a murder.

    Juror #3:  Well, in our country, unfortunately, you have to prove it...But it’s someone else’s life, and if I’m wrong, and kill someone else, I can’t live with that...why be mad at me, the prosecution had to prove it, why is it my fault that they didn’t prove their case?

     Juror #3 said she was one of six who were initially inclined to find Casey Anthony guilty of aggravated manslaughter.  (According to the foreman the initial vote on the murder count was 10-2 to acquit.)  But she eventually changed her mind:

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    CNN:  So what convinced you and the five others to switch your votes...?

    Juror #3:  I think everyone will tell you the same thing, it’s just lack of hard evidence...like I said, the duct tape and the chloroform and things like that...if you took a hard, good look at it, you could kind of...there was a lot of doubt surrounding all those certain things so, there’s not enough to make anything stick.

     It wasn’t just the forensics.  Jurors had grave suspicions about Casey’s father, George:

    Foreman:  There was a suspicion of him. That was -- that was a part of our conversation that we had of the -- well, what I'd call the round robin topics that we had when we were doing deliberation. That was brought up.

    FOX News:  Suspicious that he was involved in covering up the death, suspicious he was involved with the -- an accidental death, or suspicious he was a murderer?

    Foreman:  All three. We don't know. We don't know. The suspicions were raised.

     And similarly, from Juror #3:

    ABC News:  What did you make of George Anthony’s testimony?

    Juror #3:  He did not help the state’s case

    ABC News:  Why?

    Juror #3:  Because he was clearly dishonest...he was evasive...his story seemed to change...if it wasn’t going to help the prosecution’s case, he was going to try...”I don’t recall”....

    ABC News:  Do you believe George Anthony had something to do with what happened to Cayley?

    Juror #3:  I don’t know if he had anything to do with it, but he was there.

     In an era when so many wrongful convictions have come to light it’s not surprising that there were concerns about calling it wrong, and especially in a capital case:

    ABC News:  How much did the fact that this was a death penalty case weigh on you...?

    Juror #3:  Well, it weighs heavily...it’s pretty, it’s the ultimate, the ultimate..it’s as big as you can get...someone else’s life in your hands...if they want to charge and they want me to take someone’s life they have to prove it or I’m a murderer too and I’m not any better.

     Unlike most states, Florida doesn’t give jury instructions about direct and circumstantial evidence.  (Click here for a discussion.  Click here for current Florida jury instructions.)  Accordingly, none were given at the Anthony trial.  So who could blame Juror #3 for weighing their relative importance herself?

    They had good strong circumstantial evidence, but at the end of the day it was circumstantial and there was no [one] strong piece of evidence that said something definitively.  Every piece of evidence could kind of [say] this or that, this or that way, there were many different ways you could have gone with each piece of evidence.

     Well, not every piece, at least not at first.  Until Dr. Spitz took the stand, that one “strong piece of evidence” that could have “said something definitively” was the duct tape.  Of course, once he was done there were doubts about that too.

     Not everyone was upset with the outcome.  Lawyers and forensic experts expressed dismay at the “experimental,” near-junk quality of much of the prosecutions’ physical evidence and applauded jurors for seeing through the fluff.  Some felt that a murder conviction would not have survived an appeal.

     What to make of all this?  The state had one undeniable jewel – the duct tape.  Its value, though, was likely diminished by all the questionable testimony about vapors and such.  Regrettably, the only DNA on the tape was matched to an FBI analyst who contaminated it during handling.  Yet considering that similar duct tape was found at the residence, prosecutors could have made tape their centerpiece and gone after Dr. Spitz’s improbable testimony with greater passion.  Instead, they threw in the kitchen sink and confused the jury.

     It’s possible that the case was doomed from the start.  Police ignored a tip about the remains for months, and by the time the body was found the cause of death couldn’t be medically determined.  So there’s plenty of blame to go around.  Meanwhile Casey Anthony faces an uncertain and highly problematic future.  As she’ll soon realize there may be worse things in life than being found guilty of murder.

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Posted 5/29/11

A NEW CRYSTAL BALL

Reliability concerns plague a widely-used test for  psychopathy

     By Julius (Jay) Wachtel.  Can someone be tested for psychopathy?  And if so, are the results useful?  These are some of the tantalizing questions addressed by a thought-provoking NPR report that examines the promises and consequences of trying to apply scientific knowledge to identify persons who assumedly pose the gravest threats to society.

     As used today, the construct of psychopathy was popularized by Dr. Robert D. Hare, a psychologist who was skeptical of the usefulness of Antisocial Personality Disorder (ASPD).  Unlike psychopathy, ASPD is officially recognized as a mental disorder by the American Psychiatric Association.  A diagnosis of ASPD, though, isn’t based on underlying traits such as impulsivity and lack of empathy but is wholly defined by behavior; for example, having an arrest record or being repeatedly out of work.  Dr. Hare worried that ASPD’s lack of a theoretical basis could lead psychologically dissimilar persons to be lumped together.  There was also no way to distinguish persons with ASPD from psychopaths, a character type that had drawn his interest.  So he decided to find one.

     Twenty-eight years ago, at a time when violent crime rocked the U.S., Robert Dixon Jr. was very much part of the problem.  Raised in Oakland, California, a community that remains one of the most dangerous in America, Dixon had been convicted as a youth for a beating and a rape.  Then one day he and a friend robbed a man.  Soon the victim lay dead of a bullet wound (it was supposedly fired by Dixon’s partner.)  Dixon was arrested and got fifteen to life.

     He became eligible for parole in 2009.  As part of the process a psychologist administered the Psychopathy Checklist-Revised (PCL-R), an exam that’s been found useful in predicting violent recidivism.  Dixon scored high, which in this test isn’t a good thing.  According to the psychologist, “Mr. Dixon obtained a total score on the PCL-R which placed him in the high range of the clinical construct of psychopathy.”  In other words, Dixon was a certified psychopath.  It’s a label that will likely keep him imprisoned for a good while longer.

     Dixon has one man to thank for that exam.  Dr. Hare’s research took him to penal institutions in his home country of Canada.  There he developed a scale to identify inmates who fit the ideal type of a psychopath: “remorseless predators who use charm, intimidation and, if necessary, impulsive and cold-blooded violence to attain their ends.”  His tests revealed that only 15-20 percent of prisoners scored high enough to make the cut.  Those who did also tended to be rearrested more frequently once released.  Indeed, a recent, independent meta-analysis of nearly 100 studies confirmed that higher PCL-R scores were associated with future antisocial and violent behavior.

1

Glibness, superficial charm

11

 Promiscuous sexual behavior

2

Grandiose sense of self-worth

12

Early behavior problems

3

Need for stimulation

13

Lack of realistic goals

4

Pathological lying

14

Impulsivity

5

Cunning, manipulative

15

Irresponsibility

6

Lack of remorse or guilt

16

Failure to accept responsibility

7

Shallow affect

17

Many short-term relationships

8

Callousness, lack of empathy

18

Juvenile delinquency

9

Parasitic lifestyle

19

Revocation of conditional release

10

Poor behavioral controls

20

Criminal versatility

     The PCL-R has twenty items.  Administering it is a two-step process that includes a lengthy, approximate 90-minute interview and an extensive review of the subject’s prison, police and clinical records.  Psychologists use this information to rate items on a 0-1-2 scale, with 0 signifying the absence of a characteristic and 2 its definite presence.  A score of 30 points or higher (the maximum is 40) defines a psychopath.  According to Hare, the average score for offenders is 22; for non-criminals it’s supposedly only 5.

     Hare’s scale has been subject to extensive validation.  Most studies agree that it identifies a select group of hardened offenders.  Really, the indicators encompass so many damning traits (cunning, manipulative) and behaviors (juvenile delinquency, criminal versatility) that it could hardly be otherwise.

     For sure, something’s getting measured.  But is it the construct of “psychopathy”?  To the extent that PCL-R items reflect behaviors (i.e., 11, 12, 18, 19, 20) rather than traits (i.e., 1, 2, 5, 7) the test seems vulnerable to the same objections that Dr. Hare flung at the ASPD: that it describes rather than explains.  Perhaps a psychopath is simply someone so screwed up that they manage to breach the PCL-R’s arbitrary threshold.

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     Factor analysis is a statistical technique that assesses the inter-connectedness of items.  When Dr. Hare and his colleagues applied it to actual sets of PCL-R data two underlying dimensions became evident.  Factor 1, which Dr. Hare defined as the “selfish, callous, and remorseless use of others,” includes items 1, 2, 4, 5, 6, 7, 8, 16.  Factor 2, “a chronically unstable, antisocial, and socially deviant lifestyle,” includes items 3, 9, 10, 12, 13, 14, 15, 18, 19.  (Items 11, 17 and 20 were the only loners.)

     Assume that these two latent mega-traits are real.  Does that suggest that the larger construct of psychopathy also exists?  Dr. Hare says “yes.”  Others aren’t so sure.  In “Psychopathic, not Psychopath” Edens and his co-authors argue that the case for a “taxonic” (meaning categorical, yes/no definition of psychopathy) is yet to be made:

    To the extent that our results undermine the implicit or explicit legal presumption that psychopaths are a discrete category of criminals, they suggest that it is largely arbitrary to draw precise categorical boundaries between psychopathic and nonpsychopathic offenders.  Although decision makers can and do use PCL–R scores to inform legal decisions that are by definition categorical (e.g., presence or absence of a behavioral abnormality, indeterminate commitment), there is no clear scientific evidence for a natural breaking point at which such categories should be defined regarding psychopathy.

     Even if psychopathy is a fiction, the PCL-R could be a cost-effective way to decide whether inmates such as Robert Dixon Jr. should be released, and when.  Since high scorers are notoriously unresponsive to treatment, the test might also help judges mete out more appropriate punishments.  Surprisingly, though, it’s when PCL-R is applied this way that its creator seems the most reticent.  Although Dr. Hare earns royalties from the sale of the test, its use outside the laboratory leaves him conflicted.  “I feel ambivalent about it,” he admits.

     Dr. Hare is right to be concerned.  Studies by Murrie, Bocaccini et al of sex offenders being evaluated for civil commitment suggest that when the PCL-R is administered and scored for penal purposes things can easily go wrong.  In one example mean PCL-R scores assigned by two “prolific” contract psychologists differed by nearly ten points.  In another PCL-R scores assigned by prosecution and defense psychologists were consistently biased in their client’s direction.  Of course, Pearson isn’t about to pull a popular and profitable test from the market just because a few researchers are whining.  And there’s no indication that Dr. Hare, who conducts training seminars on the PCL-R, has asked them to.

     Dixon’s family hired their own psychologist.  As one might expect, he contradicted the state psychologist:  “I concluded that [Dixon] has developed, among other things, a sense of caring, an ability to be compassionate with other people, that he’s matured in that way.”  But as long as that high score on the PCL-R stands, the expert’s opinion counts for little.  In March the California parole board formally rejected a request that the PCL-R and other psychometric tools not be used because they are unreliable.  PCL-R may be the psychological equivalent of a crystal ball, but it affords a patina of objectivity that is highly prized by those who make sentencing and release decisions.  If its use might occasionally exaggerate the threat posed by criminals and lead to their prolonged and unnecessary incarceration, it’s a cost that society seems more than willing to bear.

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Bibliography on PCL-R     Blog posting about Dr. Hare’s position on PCL-R


Posted 1/26/11

ONE SIZE DOESN’T FIT ALL

Overuse of Shaken Baby Syndrome may have led to many miscarriages of justice

     By Julius (Jay) Wachtel.  Things hadn’t been going well for Shirley Ree Smith.  After four years of bouncing from one relative’s home to the other, the grandmother wound up in a single-room occupancy “hotel” on Los Angeles’ infamous skid row.  Thankfully, she can finally leave.  Released in 2006 after serving ten years in a California prison, Ms. Smith recently received permission to relocate to Illinois, where she will stay with her daughter and three grandchildren.

     What makes the story unique is that Smith was convicted of killing her daughter’s 7-week old infant by shaking her to death.  What makes it extraordinary is that if prosecutors prevail Smith will be returned to prison to finish serving out her term of 15 years to life.

     “Shaken baby syndrome” (SBS) made its first appearance in the medical literature of the 1970’s.  Within a few years the concept had become an entrenched component of the prosecutorial arsenal.  In the first known appellate case on point, decided in 1984, an Ohio court affirmed a conviction based on expert testimony that retinal bleeding and a subdural hematoma indicated a baby was shaken to death.  There are 1,500 SBS diagnoses and an estimated 200 SBS-related convictions each year.  About 800 SBS cases have been argued before appellate courts in the last two decades, with 258 during 2005-2008 alone.

     SBS diagnoses have typically been based on:

    (a) The presence of a “triad” of symptoms – retinal hemorrhage, subdural hemorrhage and cerebral edema (brain swelling)

    (b) No evidence of another causal mechanism.  Experts have claimed that for a blow to cause the same trauma as SBS it would have to be equivalent to falling from a second or third-story window or being struck by a car traveling 25-30 miles per hour.

     It has also been widely assumed that the effects of severe shaking are immediate and catastrophic.  That’s why an SBS diagnosis virtually proves a case: not only was a crime committed, but the caregiver who had charge of the baby when symptoms appeared must be the one responsible.

     In 1997 Wisconsin day-care provider Audrey Edmonds, a mother of three, was sentenced to 18 years in prison for shaking an infant to death.  The victim had been dropped off at Edmonds’ home and reportedly began convulsing after drinking formula.  As usual, no one was present other than the caregiver.  Twelve years later a string of physicians – including the county pathologist who helped convict Edmonds – testified at her habeas hearing that modern techniques, including magnetic resonance imaging, had undermined if not completely disproved the “common medical wisdom” that once underpinned SBS.  When asked by the judge whether he now believed that “some” shaking took place the pathologist replied “I don’t know.”

     Edmonds was released.  A new trial was granted but the charges were soon dismissed.

     On July 1, 2001 the influential American Academy of Pediatrics issued its first official policy paper on SBS.  Its abstract highlighted the perceived severity of the problem:

    Shaken baby syndrome is a serious and clearly definable form of child abuse. It results from extreme rotational cranial acceleration induced by violent shaking or shaking/impact, which would be easily recognizable by others as dangerous. More resources should be devoted to prevention of this and other forms of child abuse.

     Various indicators of SBS were mentioned, including cerebral edema and subarachnoid and subdural hemorrhage.  However, the actual diagnosis was left to the judgment of physicians, who were encouraged to consider a host of factors including the caregiver’s “psychosocial” characteristics.

     Eight years later, in a superseding paper, the Academy supplanted SBS with the more inclusive diagnosis of Abusive Head Trauma (AHT).  It acknowledged the difficulty of distinguishing between the effects of shaking and impact and conceded that internal injuries caused by blows had been mistakenly attributed to shaking.  In passing it even mentioned that medical diseases can “mimic” the effects of trauma.  Physicians were encouraged to “consider alternative hypotheses” to AHT and to use “restraint” in making diagnoses where evidence of physical abuse was unclear.

     The old and new policies are in stark contrast.  The old was written during the waning years of a decades-long wave of child abuse hysteria that led to many wrongful convictions.  It emphasized the prevalence of child abuse and encouraged physicians to diagnose SBS.  The new policy takes a more measured approach; while physicians are urged to look into the possibility of child abuse, they are also cautioned about the devastating legal consequences of making a wrong call.

     Shirley Ree Smith’s release in 2006 was not an acquittal.  After exhausting her state remedies – she had appealed her conviction to the California Supreme Court without success – Smith filed a habeas motion in Federal District Court.  Turned away, she then appealed to the Ninth Circuit.

     Fortunately for Smith, the justices took her seriously.  Poring over the trial evidence they discovered some very interesting things.  Finding no sign of trauma during the preliminary examination, the admitting physician diagnosed SIDS (sudden infant death syndrome.)  But then the autopsy surgeon found a minor abrasion and a small amount of pooled blood in the brain.  Although these weren’t by themselves sufficient to diagnose SBS, a prosecution expert witness advanced the theory, unsupported in the medical literature, that violent shaking tore the brain stem, making death instantaneous and minimizing bleeding.  Circularly, that’s also why the tear wasn’t detected during autopsy.

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     Defense experts disagreed.  One attributed the death to SIDS, the other to a recent or old fall.  Both said that a torn brain stem would have caused significant hemorrhage.   Smith was nonetheless convicted, essentially on the expert witness’ uncorroborated speculation.  That, the Ninth Circuit decided, was so unreasonable as to warrant a new trial.

     State prosecutors appealed to the Supreme Court.  It granted certiorari, then sent back the case to the circuit for reconsideration in light of Jackson v. Virginia, which requires that Federal appeals courts evaluate the factual basis of state convictions “in a light most favorable to the prosecution.”  The Ninth Circuit did so and in 2008 reaffirmed its original judgment.  Prosecutors appealed once more, and a decision by the Supreme Court is pending.

     There is no doubt that severe shaking can harm or kill an infant.  There’s also no doubt that it has been over-diagnosed as a cause of death, and not only in the U.S.  Canadian prosecutors recently moved to set aside the 1992 conviction of Toronto man Dinseh Kumar, who pled guilty to shaking his newborn to death.  Kumar later said he confessed because the pathologist’s report made it unlikely that he could prevail and because he was offered a 90-day sentence, far less than what he would receive if convicted of murder.  Since then the pathologist has been thoroughly discredited and fourteen other child abuse convictions have been brought under serious question.

     In her 2009 article in the Washington University Law Review, “The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts,”  Deborah Tuerkheimer worries that the deference given to SBS by the criminal justice system may encourage scientists to shade their testimony in the direction of guilt:

    The construction and persistence of SBS raises the distinct possibility that our adversarial system of criminal justice may be corrupting science.  It may do so by placing pressure on scientists to articulate opinions more extreme — and certainly with more confidence — than those they actually hold.

     For Shirley Ree Smith the consequences of transforming SBS into the Swiss Army knife of child abuse prosecution are all too palpable.  When asked last month what she would do if her conviction was reinstated she was unusually blunt.  “I would never go back to prison.  I'll take my own life first, but I won’t go back there.”

UPDATE (04/06/12): California Governor Jerry Brown commuted Shirley Ree Smith’s sentence: "In light of the unusual circumstances in this particular case, the length of time Ms. Smith has served in prison, and the evidence before me that Ms. Smith has been law-abiding since her release from prison, I conclude that reducing her sentence to time served is appropriate."

UPDATE (11/01/11):  Shirley Ree Smith’s victory was short-lived.  On October 31 the Supreme Court set aside the Ninth Circuit’s dismissal of her conviction, finding that it was up to the jury and not appellate courts to decide between medical opinions, and that the original verdict of guilty was a rational interpretation of the facts and not unreasonable.

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