Finally, a Judge Calls Shaken Baby Diagnosis an “Article of Faith”—and Frees a Woman Sentenced for Murder

The law, lawyers, and the court.
May 1 2014 10:55 AM

Finally, a Judge Calls Shaken Baby Diagnosis an “Article of Faith”

And frees Jennifer Del Prete, who was sentenced for murder 10 years ago.

(Continued from Page 1)

Shirley Smith, a California grandmother, received clemency from Gov. Jerry Brown in another SBS case. Smith was helping raise her daughter’s 7-week-old infant when he died in the middle of the night. The baby didn’t have the standard triad of symptoms—just  “minimal” subdural bleeding. That makes Smith’s case an outlier. Still, she was convicted in 1996 and spent a decade in prison before she was released by an appeals court. Brown later commuted her sentence to the time she had already served, citing “significant doubts” about her guilt.

Del Prete’s upcoming release from prison is crucially different from the cases of Witt, Smith, and Edmunds. Witt and Smith prevailed, but because of the less typical nature of their cases, no court expressly questioned the SBS diagnosis. In Edmunds' case, the state court was concerned about what it viewed as a “legitimate and significant dispute” about the cause of the baby’s symptoms. But the judges stopped there. Now for the first time, a federal judge has condemned the standard SBS diagnosis itself.

In a 97-page opinion, U.S. District Judge Matthew Kennelly held in January that Del Prete had established her “actual innocence,” paving the way for a full exoneration. Considering the testimony of doctors on both sides at an eight-day hearing, there was “abundant doubt, not merely reasonable doubt, regarding Del Prete’s guilt.” One reason for this doubt was that the baby’s subdural bleeding began well before she was left in Del Prete’s care. But another, hugely important, rationale for the ruling was that the SBS diagnosis had become, Kennelly wrote, “highly suspect.” Given what we now know, the judge continued, a diagnosis of SBS is arguably “more an article of faith than a proposition of science.”

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The prospect that Del Prete was wrongly incarcerated, while her children grew into adulthood, is profoundly troubling. But her case highlights problems that transcend her own tragedy—gross dysfunction in our criminal justice system. While Del Prete’s conviction is evidently unraveling, others just like it remain untouched. That can’t be right. Perhaps hundreds of inmates—people like Beverly Moore and Alma Calderaro—sit in prison because the mere presence of the triad of SBS symptoms was once assumed to prove their guilt. We have no mechanism in place for revisiting a category of flawed convictions. Our criminal justice system is too primed to stay the course.

One hope for these cases lies within prosecutors’ offices, which are beginning to create “post-conviction integrity units” dedicated to righting wrongful convictions. New York County and Dallas County have had such units for years, and now other offices are following suit. This past month alone, district attorneys in Philadelphia and Cleveland each added a section devoted to exonerating the innocent, and Brooklyn District Attorney Kenneth Thompson announced that Harvard law professor Ronald Sullivan would become the chief of another conviction review unit that will work with an independent panel of attorneys.   

To be sure, prosecutors should not have exclusive responsibility for identifying and correcting injustice in SBS cases (or potential wrongful convictions of any kind). A more comprehensive approach would include the formation of statewide innocence commissions, and it would certainly entail a greater role for the courts. But the work of prosecutors is critical in ensuring that injustice is remedied expeditiously and fairly. If one case unravels for want of solid evidence, those whose convictions rest on the same weak foundations should not continue to languish behind bars. Shirley Smith, the grandmother who served a decade, said it well: “Prison is so horrible. It’s just so horrible. It becomes even more horrible when you don’t belong there.”

Deborah Tuerkheimer, a professor of law at DePaul University, is a former assistant district attorney in Manhattan who has written widely on rape and domestic violence. Her new book is Flawed Convictions: “Shaken Baby Syndrome” and the Inertia of Injustice.

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