"Experts" -

Solicitors Journal UK

John Batt http://netk.net.au/BabyDeaths/Baby23.asp

Fifty years ago, Matron at the Cottage Hospital smiled: Charlie again? Born in 1958 he was accident-prone as a child. Cuts and broken bones were the norm for him. His wounds were healed and the family went home. Would that happen today? Probably not. Social services would be called, a doctor would report suspected abuse – they fear disciplinary charges if they fail to do so - and Charlie and his siblings would be taken into care.

In May 2008, Suzanne Holdsworth was 3 years into a life sentence for the murder of her neighbour’s two-year-old Kyle, when the Court of Appeal  (C/A) heard that he had pre-existing brain damage making him susceptible to epilepsy. This was not revealed to the jury.  Holdsworth won her appeal and faces a new trial. False allegations of baby killing were almost unheard of 50 years ago. In recent years there have been many: Sally Clark, Angela Cannings, Trupti Patel, Ian and Angela Gay, Marianne Williams, Donna Anthony, Colin Kendrick. Cathy Henderson served 13 years on death row in Texas and Kenneth Marsh, 21 years in a California jail, before being cleared. In May 2008, Tomas Klamo’s appeal was upheld by the Victoria (Australia) C/A (1). At Reading Crown Court, in August 2007, Keran Henderson was convicted of shaking a baby to death and is appealing. Other cases are in the pipeline. The sheer numbers suggest that something endemically is wrong. Is it, as the Royal Colleges of Medicine claim, faults in the Legal System, or are doctors repeatedly getting it wrong?

Influential paediatricians claim that there is a hidden epidemic of child abuse. A number of theories have supported the claim: the Rule of Three, that 3 infant deaths in one family must mean murder, sometimes called Meadow’s Law, Shaken Baby Syndrome (SBS), and Munchausen’s Syndrome by Proxy (MSbP) a mother fabricating her child’s symptoms. Thousands of family and criminal cases have turned on these theories.

The first case to ring alarm bells was Sally Clark, in 1999. Daughter of a senior police officer, a solicitor herself and married to a lawyer, she seemed an unlikely suspect for murder. All three theories plus a statistic, that the chance of two cot deaths in her family were 1 in 73 million, helped convict her of killing her babies. Medical evidence withheld from her trial and first, failed appeal, proved her sons died of natural causes. She was freed. How could  theories, almost chapters in the ‘Bible of Medicine’, prove 2 murders, when the babies died of natural causes? It is said that for a scientific theory to be valid, it must be factually based. For a medical theory, all that is required is that doctors believe it.

The Rule of 3 began life as a post-script to an erudite book on Sudden Infant Death – it was speculation.  The Rule of 3 was soon believed by virtually every American doctor. It convicted Tennessee mother, Vernica Ward of the murder of her 3 babies.  Pathologist, Dr Vincent DiMaio testified:’ It’s when you get to the third one, then you’ve gone beyond reasonable doubt and you have to call it homicide.’   In  2002, the Tennessee Court of Appeal (2) found the theory inadmissible, as no more than speculation. Sally Clark’s second appeal heard that the real chances of a 2nd cot death having had 1, is between 1 in 60 and 1 in 200.

Shaken Baby Syndrome (SBS) first appeared in 1971 and 1972. For over 100 years, pathologists had certified that the Classic Signs of a Shaken Baby  – retinal haemorrhages, swelling and bleeding in the brain - were caused by impact, large or small. Then, American Doctors Guthkelch and Caffey, wrote papers proposing shaking as the cause. Paediatricians believed it worldwide.  The American National Center for SBS, in Utah, claims that shaking is the’ leading cause of death in head trauma cases:1200/1400 killed or injured every year’.

American parents, Jack and Jenny Jones* watched as Samantha, their 3 year-old, played on a gym set. She fell, 3 feet on to carpet and soon lost consciousness. The pathologist found the Classic Signs of Shaken Baby Syndrome: Slam-dunk 1st Degree murder!’   But Granny filmed it on video. The District Attorney dropped the case.  Without that video Jack and Jenny would almost certainly be on Death Row. [*Not real names.]

Twenty-five experts testified to appeal court judges in London when, in July 2005, (3) Lorraine Harris, Raymond Rock, Alan Cherry and Michael Faulder appealed their shaking convictions.  Among the issues were: it could not be SBS unless there were retinal haemorrhages in the baby’s eyes; shaking alone could not cause those haemorrhages unless there is structural damage to the neck which is seldom found; a fall from 3 feet on to carpet can cause the same symptoms as a fall from 40 feet on to concrete. If 25 experts cannot agree that shaking a baby can cause death, how can any criminal jury find SBS murder beyond reasonable doubt? The C/A in Cannings (7) ruled that where the only real evidence is experts, competing for the verdict, there should be no trial.

Biomechanics, the causation of injuries, is not routinely taught in medical schools. Research in 2005, in America, established that shaking can create only half the g. forces required to cause the Classic Signs of a shaken baby. Yet a fall of 3 feet, onto carpet, generates five times the g. forces of shaking. Many families experience such falls, which rarely result in death. It was Colin Kendrick’s explanation. He was acquitted. Some pathologists have found retinal haemorrhages in many babies at post mortem where there is no suggestion of abuse.

A judge in Missouri, USA, in 2007 (4) upheld a submission based on a comprehensive analysis of the medical literature on SBS. It concluded that SBS has no scientific credibility. The judge’s decision was not appealed. Some states now refuse to admit SBS in evidence.

Munchausen’s Syndrome by Proxy, (MSbP) - now renamed Fabricated or Induced Illness – was first described by Professor Sir Roy Meadow. A  mother is said to suffer from MSbP when she fabricates symptoms in her child to draw attention to herself.  It is officially recorded 1,200 times a year in the U.S.A. It can be fatal:

An American mother, accused of MSbP, fled the state to avoid arrest and the loss of her child.  It took her 2 years to find the right doctor. Her child had a rare but fatal liver complaint. He would have lived if he had been treated 2 years earlier. The mother will get millions in damages but it will not bring her baby back.

Doctors can be disciplined if they make diagnoses outside their qualifications and experience.  MSbP is most frequently used by a paediatrician, with no experience of treating adults and no qualification in psychiatry, to diagnose a potentially killer disease in an adult. That, prima facie, is Serious Professional Misconduct.  It is strange that neither the General Medical Council, nor the judges have noticed this. In 1993, The Supreme Court of South Australia (5) held that no paediatrician is qualified to give an opinion on MSbP.  In 2004, the Queensland (Australia) C/A (6) found that MSbP ‘does not relate to an organised or recognised reliable body of knowledge or experience’. These decisions may not be binding on our courts, but raise serious doubts over hundreds of family and criminal court decisions.

Salt poisoning is the latest theory to come under the microscope. Meadow first described it.   Ian and Angela Gay were jailed for it, then freed at a re-trial. Marianne Williams’ jury produced a Not Guilty verdict in 90 minutes after a 6-week trial. The prosecution medicine was completely wrong. Police are investigating whether criminal offences were committed at the hospital.  

For 2000 years, cot deaths have defeated every attempt to identify their cause. Fifty years ago there were 30 every week. In 1981, the Back-to-Sleep Campaign was effective but a baby still dies of unknown causes nearly every day. How can murder be beyond reasonable doubt in any but the most obvious cases of deliberate injury? Child abuse is abhorrent. But that does not justify a witch-hunt of innocent mothers.

What can be done? With so much doubt about these theories surely every court should rule them inadmissible.  At voir dires, judges must ensure that experts are properly qualified. They must advise juries which theories are pathologically proven and which are mere speculation. Medical schools and colleges of law must address these issues. Students of criminal law must be taught the high risk of convicting the innocent in child abuse cases. Doctors must not be sent out into the world propagating speculative theories that can convict the innocent. 

There are faults in the Criminal Justice System. Baby murder is so disgusting that ordinary people, who sit on juries, tend to say: ’what is she doing in the dock if she did nothing wrong?’ That can lead to a presumption of guilt! How many innocents still languish in jail because appeals so seldom succeed? Twelve prosecution experts were called against Keran Henderson, The defence called only one. Is this because legal aid unduly restricts the defence to save money? False economy? Miscarriages of justice cost millions. Lawyers who have successfully handled such cases believe that only by proving the client’s innocence beyond doubt is there a chance of an acquittal or successful appeal. Choosing experts is fraught with problems. Any who still subscribe to the 3 theories must be avoided. Only those with the very best reputations should be instructed. Solicitors should only instruct counsel who have experience of such cases. Solicitors must not treat these cases as just another poorly paid job for an assistant. It needs the very best brains in the office. That may be expensive but won’t cost as much as a negligence action.

Nothing better illustrates the dangers of continuing these ill-conceived prosecutions than the case of Sally Clark. She died in March 2007 at the age of 42. The family believes her death was the result of her miscarriage of justice, caused by experts. 

Trust in Doctors and the Rule of Law is undermined by miscarriages of justice, criminal or civil; they destroy families. It must stop.

(1) R –V- Klamo [2008] VSCA 75 (9 May 2008)

(2) State of Tennessee –v- Vernica Ward (M2002 01816 CCM R33 CD)

(3) Court of Appeal (Criminal Divison) [2005] EWCA Crim 1980 Case Nos: 200403277, 200406902, 200405573, 200302848.

(4) State of Missouri –v- Kathy Hyatt 5/11/07

(5) DPP –v- Stephanie Williams 92/595 (1993) SASC 4118

(6) R –v- LM (2004) QCA 192

(7) [2004] EWCA Crim.01 Case No. 200201711D3

John Batt is a solicitor. His book Stolen Innocence, telling the Sally Clark story, is published by Ebury Press.

A masterful analysis of the value to be placed on medical evidence in  child abuse cases is in the judgement of Charles J.,  in Lancashire County Council and D & E [2008] EWHC 832 (Fam), a shaking case.  Briefly His Honour says that medical evidence is only opinion – a possibility – no matter how many doctors concur in that opinion. It should not override facts particularly a realistic, but favourable assessment of the character and reliability of the accused carers.