The XX Factor

“Whether Someone Can Actually Shake an Infant to Death Remains Hotly Disputed in the Medical Community.’

A few weeks back, when Emily pointed out this disturbing David Grann New Yorker article on a wrongful execution Texas, it occurred to me that I didn’t see it as a piece about the death penalty. I read it instead as a piece about the terrifying commonality with which prosecutors rely on soi-disant “experts” who prefer self-aggrandizing mysticism to verifiable science. While he amasses bogus “evidence” of a man’s arson, a fire investigator in Grann’s piece sets himself up as a mysterious medium through which the fire speaks. And now the man he helped convict is dead.

None of this will seem surprising to anyone familiar with the work of my colleague Radley Balko, whose crime reporting has exposed a Mississippi “bite mark expert” and taken down corrupt medical examiner Steven Hayne . (Both of these guys are responsible for putting men on death row.) Today Balko has a column on the dogma of “shaken-baby syndrome ,” and the pattern looks somewhat similar. The three symptoms once taken to be irrefutable proof that a baby was shaken to death turn out to mean nothing of the kind. Nor can doctors say whether it is possible to shake an infant to death.

Where there is consensus, however, is that the triad of symptoms traditionally associated with SBS are not exclusive to it. A number of other things can produce these symptoms, including falls, head impacts, infections, birth defects, reaction to vaccinations, and surgical procedures. That’s a significant departure from what prosecutors have been telling juries for the past 20 years. In other words, there are almost certainly a significant number of innocent people in prison today who were wrongly convicted of shaking a baby to death.

Unlike the examples above, SBS is an instance in which the prosecutors were actually pushing the (now-discredited) assumptions of the medical community. Science, inconveniently, evolves. As Balko points out, jurors are apt to confuse consensus with certainty, and courts can be unwilling to revisit past cases when the science advances.

Photography of a baby by Barbara Penovar/Photodisc