WISCONSIN LAW REVIEW: SHAKEN BABY SYNDROME: MEDICAL UNCERTAINTY CASTS DOUBT ON CONVICTIONS

SHAKEN BABY SYNDROME: MEDICAL UNCERTAINTY CASTS DOUBT ON CONVICTIONS

Excerpts from pages 2-4 (702-704)

I. INTRODUCTION

On April 3, 2004, emergency personnel received a call that six month-

old

was “red in the face and breathing

heavily.”2 Later that day, despite rescue efforts, he died from symptoms

commonly associated with shaken baby syndrome (SBS).3 His father,

, was charged with first-degree reckless homicide.4 The

state’s medical experts testified that Riley suffered from the triad of

symptoms that traditionally lead to a diagnosis of SBS—brain

hemorrhaging, retinal hemorrhaging, and brain swelling.5 They

suggested, as is typically assumed with SBS,6 that the baby was probably

crying inconsolably, and that Dittberner became so frustrated that he

shook the baby to death.7 They concluded that only SBS could have

caused those symptoms.8

Dittberner, however, maintained that he did not shake his son.9 He

said that, when he was burping his son, the child had a seizure, 10

“stiffened up,” and slipped out of his arms.11 He asserted that the child

fell on the floor and landed on the top of his head.12 Dittberner was alone

with the baby, except for a two-year-old child he was babysitting at the

time.13 Upstairs neighbors—who claimed that they could hear everything

in Dittberner’s apartment—stated that they heard neither the baby crying

nor any yelling on the day of Riley’s death.14

Deborah Crawford was one of the first emergency workers to arrive

on the scene.15 Testifying for the prosecution, she stated that Riley’s

mother was upset, but that Dittberner was “emotionless.”16 She did not

think that the baby could have sustained such injuries from a short fall,

noting that “generally a baby doesn’t fall such a small amount and go

unconscious.”17

In his defense, Dittberner presented several experts who stated that

the type of injuries that Riley exhibited could have been caused by a

combination of other factors.18 Horace Gardner, “one of the country’s

foremost experts on the human eye,”19 testified that the baby would not

have sustained the type of injuries that he found if the child had been

shaken to death.20 Although Riley had retinal hemorrhaging,21 Gardner

explained that retinal injuries more commonly result from a lack of

oxygen.22 He testified that he had not seen any cases of SBS in which the

victim exhibited the particular type of retinal hemorrhages that Riley

had,23 and suggested that the injury could have come from an improper

insertion of the breathing tube during the emergency treatment.24

Apparently, the emergency personnel had serious difficulty trying to

intubate the baby, depriving him of oxygen.25

The defense also introduced the testimony of Patrick Barnes, a

pediatric neuroradiologist and child-abuse expert.26 He testified that

Riley had a history of health problems, including bronchitis and

pneumonia.27 Barnes stressed that doctors should not accuse a parent or

caregiver of child abuse until they have ruled out every other

possibility.28 Because the Dittberners had adopted Riley, doctors did not

know all of his medical history, nor did they perform certain tests that

might have helped determine Riley’s cause of death.29

Although Dittberner was ultimately acquitted,30 his case exemplifies

the difficulties with charges of child abuse based on allegations of SBS.

Often these cases become a battle of experts in which the state’s

witnesses claim that the child must have died from being violently

shaken, and the defense’s (if the defense can retain them)31 provide

alternative explanations for the symptoms.32 It may be difficult for the

fact-finder when there is no corroborating evidence, and only medical

testimony that the child suffered from the triad of SBS symptoms.33 The

jury, possibly confused due to the complicated nature of an SBS

diagnosis,34 might return a guilty verdict because of the nature of the

crime—the tragic death or severe injury of a baby35; on the other hand,

the jury might acquit, wanting to believe that no one could intentionally

harm an infant.36 Dittberner was fortunate because his neighbors were

able to testify in his favor and he had the support of some of the leading

medical experts in the country.37

Excerpts from pages 8 and 9 (708 and 709)

B. Summary of Significant SBS Convictions

The earliest SBS convictions happened about twenty-five years

ago,70 and the number grows each year.71 The Woodward case was one

of the most famous SBS cases, and the subject itself has been of growing

interest to the media and society.72

1. EARLIEST CASES

In another early appellate case,

was convicted of

second-degree murder for shaking her adopted daughter,

who had

a history of health problems at the time of adoption.81 Ostlund claimed

that, while alone with Maria, she turned her back, heard a thump, and

then saw Maria on the floor near the couch.82 The baby died from brain

swelling, and there was subdural bleeding.83 The state’s theory, based on

circumstantial evidence, was that “a violent shaking” caused Maria’s

injuries.84 Each side presented six expert witnesses, who provided the

primary evidence in the case.85 Despite the minimal and circumstantial

evidence against Ostlund,86 she was convicted of second-degree murder

and sentenced to 105 months in prison.87