What Does the Exoneration of an Arizona Father Mean for Shaken-Baby Prosecutions?

The law, lawyers, and the court.
Oct. 31 2012 5:55 PM

The Exoneration of Drayton Witt

An Arizona father convicted of shaking his infant son to death can rebuild his life.

Drayton Witt and his wife.
Drayton Witt and his wife, Maria

Courtesy Arizona Justice Project.

Drayton Witt was convicted 10 years ago of murdering his 4-month-old infant son, Steven, by shaking him to death. His conviction was thrown out last spring after years of appeals that called into question the science behind it. This week, an Arizona judge dismissed the charges against Witt with prejudice. That means Witt will never go back to prison over Steven’s death: Prosecutors will not be permitted to retry him, as they’d said they planned to. Witt, who always insisted he did not hurt his son, has been fully vindicated in a case that helps mark a turning point for a certain kind of shaken-baby prosecution.

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

As I explained when I wrote about this case last spring, when Witt was first tried, Steven’s death looked like a typical case of abusive shaking to the doctors who treated the baby at the hospital and to the medical examiner who did the autopsy. Based on their testimony, Witt was sentenced to 20 years in prison. But Steven had been born with health problems that plagued him through his short life. His umbilical cord was wrapped around his neck at birth, and a few weeks later, after he went home from the hospital, he had the first of several bouts of fever and vomiting. When Steven was almost 4 months old, his mother, Maria, took him to the emergency room where he was diagnosed with pneumonia. He took a dose of antibiotic, and afterward one of his eyes couldn’t focus, and he went limp. He threw up and started shaking the next morning. Maria and Witt (who was not Steven’s biological father but gave the baby his last name and was helping to raise him) rushed the child to the hospital.

There, the baby had a grand mal seizure and then more seizures. He went home a week later with medication, but his mother says that from then on, he wasn’t healthy. His eyes would lose focus, and he had fevers and projectile vomiting. A few weeks after the seizures began, Witt was taking care of Steven while Maria was at work and thought Steven was having another seizure. He picked up Maria at work, and they drove the baby to the hospital. Steven had a major seizure along the way, and at the hospital, it took doctors 32 minutes to get his heart restarted. He died the next day. Despite the infant’s terrible medical history, doctors had seen the evidence that traditionally pointed to a shaken-baby diagnosis: subdural and retinal bleeding.

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The medical examiner, A.L. Mosley, ruled the death a homicide. Since Witt was the last person with Steven, he was charged with murder and convicted after a two-week trial in February 2002.

In the intervening 12 years, doctors have learned that ongoing medical problems like Steven’s can account for the retinal and subdural bleeding they used to assume was caused by shaking, or by shaking and blows to the head. So Witt’s appeal attracted a flurry of interest among the small group of doctors who testify for the defense in such cases. Most importantly, perhaps, medical examiner Mosley recanted. “There is now no longer consensus in the medical community that the findings I reported in my autopsy report are reliable proof of SBS [shaken baby syndrome] or child abuse,” Mosley told the court. “Steven had a complicated medical history, including unexplained neurological problems. He had no outward signs of abuse. If I were to testify today, I would state that I believe Steven’s death was likely the result of a natural disease process, not SBS.”

Witt also had on his side Norman Guthkelch, the 97-year-old pediatric neurosurgeon who helped come up with the shaken-baby syndrome diagnosis in 1971. Also Patrick Barnes, chief of pediatric neurology at Stanford University who testified against Louise Woodward, the English au pair tried in 1997 for the murder of an 8-month-old baby in her care. A decade later, Barnes reversed his position in that case, and he has been skeptical of many shaken-baby prosecutions since then.

As Richard Ruelas of the Arizona Republic pointed out in an excellent article about Witt’s case, it’s the second recent setback for Maricopa County prosecutors in a shaken-baby case. In February 2011, the 1998 murder conviction of Armando Castillo was overturned in the death of toddler Steve Young Jr., his girlfriend’s child. When prosecutors said they would retry him, Castillo pleaded guilty to a lesser charge. “Maricopa County Attorney Bill Montgomery said that his office still believes that Witt was responsible for the death” of Steven, Ruelas wrote in September. But with the judge’s order this week, Witt and Steven’s mother can get on with rebuilding their lives. (They have since married.)

I started writing about the questions surrounding shaken-baby cases almost two years ago. Now, as then, many pediatricians and prosecutors believe that in many cases in which babies have unexplained head trauma, abuse by shaking or impact is the cause. Across the country, between 1,200 and 1,400 children, most of them infants, sustain head injuries attributed to abuse each year. Much of the time, external injuries—cuts, bruises, burns, fractures—leave behind telltale marks of the abuse. The much harder subset are the cases in which there are no external injuries, prompting a difficult debate over whether abuse is the only plausible cause of the baby’s internal retinal and subdural bleeding. And the flimsiest group of all are the old ones in which the medical consensus that supported conviction has since fallen apart, such as Witt’s case or that of Shirley Ree Smith, a grandmother accused of shaking her grandson to death in California in 1996 and who was pardoned by Gov. Jerry Brown in April.

Numbers of prosecutions are difficult to come by, but the best estimate I’ve heard is about 200 shaken-baby cases a year. It’s not clear how many convictions are solid and how many should be reconsidered. What I can tell you is that the fight over this diagnosis will continue to be intense and unremitting. For prosecutors and for doctors who treat abused children, the prospect of adults getting away with doing awful harm to babies is appalling. At the same time, for doctors who are skeptical of the theory that shaking alone can cause these internal injuries and for the defense lawyers who think their clients have been wrongly accused, the idea that innocent people could be in prison is just as troubling. In the end, Drayton Witt and Shirley Ree Smith will look like the easy cases in a sea of harder ones.

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