Family Saved from Shaken Baby Theory

April 5, 2008 permalink

The Toronto Star features a family falsely accused by expert evidence from pathologist Dr Charles Smith. A twelve-year-old girl was babysitting when an accidental fall killed toddler Amber. Dr Smith claimed it was a shaken baby case. The accused girl's father was a professional chemist and used his own technical expertise to study medical literature on shaken baby. He spent two years gathering evidence at a cost of $150 thousand. His efforts saved his daughter, but left the family bankrupt.

As far as we know, shaken baby has been disproved in every case in which the defense has had adequate resources, but still many parents are in jail, and many more children are in foster or adoptive homes, on this now discredited theory.

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Father credited for acquittal in baby's death

ADRIAN WYLD/CANADIAN PRESS FILE PHOTO
Pathologist Dr. Charles Smith arrives with his legal team at the Goudge inquiry in Toronto on Jan. 28, 2008.

Dad dove into research on Shaken Baby Syndrome, sold house to prove disgraced pathologist wrong

April 04, 2008, Theresa Boyle, staff reporter

He knew it had to be a mistake.

His 12-year-old daughter was charged with manslaughter, accused of causing the death of a toddler she was babysitting. A renowned pathologist, Dr. Charles Smith, had said it was a case of Shaken Baby Syndrome.

The father knew better. His daughter was a straight-A Grade 6 student whose biggest concerns at the time – it was December 1988 – were singing competitions and basketball games. "I told her not to worry, I would straighten this out. They've made a mistake."

A chemist at a mining company, he put his scientific know-how to work for the next two years, determined to prove Smith wrong and clear his daughter. He committed most lunch hours, evenings and weekends to reading scientific journals on arcane subjects such as neuropathology and biomechanics, delving deep into the field of infant head injuries.

The efforts of the father would pay off enormously. His daughter was acquitted and the case became one of 20 botched by Smith and others that were examined at a public inquiry in which final arguments wrapped up this week in Toronto.

But the financial cost was heavy for the father – known only as DM at the inquiry because of a publication ban. The family remortgaged their house twice, eventually selling it. And they cashed in all their RRSPs. In all, $150,000 was spent on flying experts to Timmins, putting them up in hotels and paying for some of them to review the case.

The family's ordeal started in the summer of 1988 when the daughter, SM, got a job babysitting a 16-month-old neighbour, Amber, three days a week. Amber's parents had carefully checked SM's background and felt they could trust her with their daughter. She had taken the Red Cross babysitting course, was a good student, a little league baseball player and had "great reviews" from other families whose children she had babysat.

Tragedy struck on July 28. After awakening from a nap, Amber got out of SM's grasp and tumbled down the stairs, striking her head. She suffered a fatal brain injury, dying two days later at Toronto's Hospital for Sick Children.

Initially, a coroner determined the toddler had died of an accidental head injury. But after the child was buried, officials from Sick Kids, including Smith, requested an exhumation, suspecting abuse.

Smith did an autopsy and determined Amber died of Shaken Baby Syndrome. She had symptoms typically associated with the syndrome, including bleeding on the surface of the brain, brain swelling and retinal hemorrhages. But Smith discounted a bruise on Amber's forehead, wrongly determining it predated the accident. It was a critical error. Experts who later reviewed the case said it was evidence that the child had, indeed, died from striking her head.

On Dec. 15, SM and her parents were asked to come down to the police station. They piled into DM's Ford F-150 SuperCab half-ton, thinking perhaps that they were needed to help tie up some loose ends in the case.

Instead, they were met by a detective who formally charged SM with manslaughter. DM remembers the officer saying it was the hardest thing he ever had to do in his life.

"We were just dumbfounded, totally dumbfounded," DM remembers.

He recalls how vulnerable his daughter appeared. Bundled in her winter jacket, with her long blond hair tied back in a ponytail, the tall pretty girl protested her innocence.

"I didn't kill anybody. I loved that baby," she insisted.

"They put us in another room," the father recalls. "I don't think she even knew what that meant – being charged with manslaughter. She was 12 years old. She probably didn't really understand how serious that was."

DM's initial panic turned to anger. So he channelled his emotions into protecting his daughter, turning to what he knew best: science and research. At the time he was doing metallurgical analysis for Falconbridge Mining, now Xstrata. But during every break, he turned his attention to the science of infant head injuries.

"It certainly helped, working in the field I was in. That's all I was doing was research, and I knew you couldn't be 100 per cent certain of any theory. This one sounded like it was flawed," he says of Shaken Baby Syndrome.

So he set about finding out everything he could about the syndrome, infant head injuries and the biomechanics of falls. He read academic journals and called experts from around the world.

"I wanted to know how you could distinguish a shaking injury from an injury caused by a fall. Right off the bat I knew this was a biomechanical problem," he says.

Little did DM know that he had stumbled upon a major scientific quandary, one that still bedevils scientists today. Indeed, one of the recommendations coming out of the inquiry is for a review of old shaken-baby deaths. That's because cases once viewed as being caused by the syndrome are today often attributed to natural causes.

One of the papers he found was published in the Journal of Neurosurgery in 1987. The seminal study, which was led by Ann-Christine Duhaime from the Children's Hospital of Philadelphia, poked holes in the theory of Shaken Baby Syndrome. She and her colleagues argued that a blunt impact was necessary to cause such injuries.

The theory squared with DM's take on what happened to Amber – that the toddler struck her head during the accidental fall, acquiring a fatal brain injury.

DM tracked down the author and convinced her to take a look at the case and ultimately to travel to Timmins to testify on his daughter's behalf.

In the end, DM found 19 experts around the world whose studies and theories supported his daughter. He paid for nine of them – including neuropathologists, biomechanics experts and pediatricians specializing in child abuse – to fly to Timmins for the trial. Written opinions from others were provided to the court.

The family went bankrupt to cover the costs of SM's defence.

The trial took place over a period of almost two years, a difficult time for the family. SM's marks in school, normally high, dropped. The usually upbeat girl became despondent. Even though she was protected under the Young Offenders Act, Timmins isn't that big and residents were well aware of the identity of the girl at the centre of the trial. Some judged her harshly. Amber's parents still lived across the road.

By the time SM took the stand, she was 14. DM remembers going into the courtroom feeling worried for her, but he emerged feeling proud.

"The judge asked her if she had anything to say. She pointed to all the people behind the Crown – the police and Amber's family – and reminded them: `You believed me before Dr. Smith's shaking theory came out. I loved Amber and I'm innocent.'"

In his written decision acquitting SM, Justice Patrick Dunn said the defence's nine experts succeeded in convincing him that a child could sustain a serious head injury from a short fall.

"When first presented, the Crown's case appeared quite plausible. But after the evidence of the defence experts, it is riddled with reasonable doubts," he wrote.

The family's lawyer, now a judge, gave much credit for the victory to DM. In his 1995 swearing-in ceremony to the Ontario Court of Justice, Gilles Renaud gave a speech in which he lauded DM.

"No courtroom lawyer has ever enjoyed a better assistant than I did," he said.

The Dunn decision has been a key piece of evidence at the current inquiry, often cited by counsel for the commission and parties with standing. It marked the first time Smith and the Hospital for Sick Children were publicly rebuked for their work on the 20 cases under question.

"The case proved that the people at Sick Kids, particularly Dr. Smith, didn't seem to be aware of groundbreaking research," remarks Peter Wardle, lawyer for this family and others at the inquiry.

DM is now chief chemist at Xstrata, running the lab in which he once worked as a researcher. He half jokingly says he has to keep working because his retirement funds are sorely depleted.

SM declined to be interviewed for this story. She has endeavoured to move on from the case that has so consumed her family. Following the trial, her school grades returned to As. She moved away from Timmins to go to university, eventually acquiring two degrees. She now lives in a southwestern Ontario city and at age 32, has a highly successful career.

DM is well aware that it could have turned out very differently. "Innocence. There's no price for it. It's as simple as that."

Source: Toronto Star