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.

Child's head x-ray
Doctors once believed that bleeding beneath the outer layer of membranes surrounding the brain, bleeding in the retina, and brain swelling always meant that a baby had been shaken. Above, an X-ray of a child's head.

Photo by Piotr Marcinski/Thinkstock

Almost a decade into a 20-year prison sentence for murdering a baby in her care, 43-year-old Jennifer Del Prete was ordered freed on bond late last week. The ruling is one of a growing number that reflect skepticism on the part of judges, juries, and even prosecutors about criminal convictions based on the medical diagnosis of shaken baby syndrome. The case is also a critical turning point. The certainty that once surrounded shaken baby syndrome, or SBS, has been dissolving for years. The justice system is beginning to acknowledge this shift but should go further to re-examine and perhaps overturn more past convictions. 

Doctors once believed that three neurological symptoms—bleeding beneath the outer layer of membranes surrounding the brain (subdural hemorrhaging), bleeding in the retina, and brain swelling—always meant that a baby had been shaken. Because it was accepted that a baby with these three symptoms would show the effect of brain damage immediately, the “triad,” as it became known, was also used to establish the identity of the abuser—the last person with the baby. SBS was, in essence, a medical diagnosis of murder.

Beginning in the 1990s, hundreds of cases were prosecuted based on this conception of SBS. The evidence of guilt was strikingly similar from case to case. This includes the Illinois prosecution of Jennifer Del Prete. In 2002, Del Prete was working at a small home day care in a Chicago suburb. One day, when she went to feed the 4-month-old baby in her care, she says she discovered the infant limp. Because the baby had the telltale triad of SBS symptoms, doctors were sure that Del Prete had shaken the baby to death. She denied it, and there were no witnesses. But based on the testimony of medical experts—primarily a pediatrician—she was convicted of murder in the first degree.  

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For my new book on the legal treatment of SBS, I focused on Del Prete’s case precisely because, among the hundreds of SBS cases that I had collected over the years, hers was so utterly typical. For instance, the case against Del Prete looked much like the case against a Wisconsin caregiver named Audrey Edmunds. In 1996, Edmunds too was found guilty of shaking to death a baby in her care, based on the triad, even though again there were no witnesses and she denied harming the child. She was sentenced to 18 years in prison. 

In 2008, in the first decision of this kind, a Wisconsin appeals court reversed Edmunds’ conviction. According to the court, a “shift in mainstream medical opinion since the time of Edmunds’s trial” substantially undermined the state’s case. New research (continuing since then) had identified other causes of the triad of symptoms that pointed away from abuse or away from the adult with the baby last as the abuser. There was now, the Wisconsin court found, a “legitimate and significant dispute as to how the infant’s injuries arose.” The changing science meant a jury might well entertain a reasonable doubt as to Edmunds’ guilt. After the court vacated her conviction, the state dismissed all the charges against her.

Since then, a few others accused of shaking babies to death have managed to unwind their convictions. Among the exonerated is Drayton Witt, an Arizona father whose conviction for the murder of his 4-month-old son came undone in 2012 partly because the medical examiner recanted his testimony—after Witt had served a full decade in prison. Expert review of the medical records uncovered a plausible cause of the baby’s death. It appeared that the infant, who had experienced seizures throughout his life, died from an ongoing disease, one that led to a kind of stroke.

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