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Overcoming Untrue Defenses in Abusive Head Trauma

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Overcoming Untrue Defenses in Abusive Head Trauma Overcoming Untrue Defenses in Abusive Head Trauma Matthew J. Torbenson Deputy District Attorney Milwaukee County Special Thanks to… National Center on Shaken Baby Syndrome Mission The National Center on Shaken Baby Syndrome is committed to prevent shaken baby syndrome and to promote the well- being of infants generally through the development and implementation of programs, policy and research; and to support and educate families, caregivers and professionals. Copyright Notice This presentation contains the creative works of others which are being used by permission, license, or under a claim of fair use (17 U.S.C. 107). This presentation was prepared under the fair use guidelines for multi-media presentations and further use or distribution of it is not permitted. Who am I (not a wizard…) • Deputy District Attorney – 2 years • Assistant District Attorney – 12 years • Team Captain of Child Protection & Advocacy Unit • Prosecute complex child abuse and child neglect cases, with specialization in: • Child homicides • Abusive head trauma • Inflicted burns • Child sexual abuse • Child torture • Complex child neglect (medical neglect) • Presenting child testimony State v. Edmunds Audrey Edmunds - convicted of First Degree Reckless Homicide 1995 • Caring of 7-mth old Natalie when Natalie collapses • State • Presented numerous experts @ trial • Shaking and/or shaking + impact • Defense: • Expert agreed – abuse, argued “lucid interval” • Convicted of First Degree Reckless Homicide State v. Edmunds Post conviction motion 2007 • Motion for a new trial – newly discovered evidence • “Significant debate” within medical community as to whether SBS caused injuries – other potential causes • Trial court – evidentiary hearing: •State’s evidence [of defendant’s guilt] is as strong, if not stronger than it was at the original trial. State v. Edmunds “Indeed, the debate between the defense and State experts reveals a fierce disagreement between forensic pathologists, who now question whether the symptoms Natalie displayed indicate intentional head trauma, and pediatricians, who largely *392 adhere to the science as presented at Edmunds's trial. However, it is the emergence of a legitimate and significant dispute within the medical community as to the cause of those injuries that constitutes newly discovered evidence.” At ¶ 23. (2008 WI App. 33) J. Crooks: Dissent, ¶ 84, fn. 4 State v Ward, 2009 WI 60 “. This is especially troubling in this type of case. Medical evidence in so-called “shaken baby” cases is very much in dispute at the moment, and the risk of wrongful convictions based on powerful but ultimately discredited expert testimony is significant. Given the evidence of prior brain injury, it is relevant, but not dispositive, that Ward was the person who was with the baby when he died. .” Then cites to Edmunds Overcoming Untrue Defenses A small cadre of defense “experts” are working in conjunction with defense attorneys in an effort to create… •Courtroom controversy •False belief that there is disagreement within the medical community concerning the validity of an AHT diagnosis Overcoming Untrue Defenses Geddes & “The Unified Hypothesis” • Hypoxic event – lack of oxygen – causes brain swelling (edema), results in increased intracranial pressure = resulting in SDH & RH • Geddes – • Has testified that her theory was only a hypothesis • “… I would be very unhappy to think that cases were being thrown out on the basis that my theory was fact.” Overcoming Untrue Defenses Common Defenses: (1) SBS doesn’t exist; no evidence base; (2) Retinal Hemorrhages (RH) caused by many things; (3) Re-bleeding of a cSDH caused by incidental trauma (short fall/birth/rough-housing kids) (4) Short Fall (5) Bio-Mechanics: Can’t shake ‘em hard enough- need neck trauma Overcoming Untrue Defenses Common Defenses: (6) SDH caused by birth trauma (7) “SODDI” & TODDI (8) Lucid Interval/Can’t time injuries (9) Resuscitation efforts (CPR/CCR) (10) Temporary Brittle Bone disease & or Osteogenesis Imperfecta (11) Vitamin deficiency “K” “D” Overcoming Untrue Defenses Common Defenses: (12) Metabolic disease (13) Bleeding disorders (CVST v. Coagulopathy) (14) Clotting disorders (ITP) (15) Accidental trauma (16) The ‘Unified Hypothesis' of Geddes et. al. & (17) Dysphagic Choking etc. Barnes, Galaznik, Gardner, Shuman https://web.stanford.edu/~pbarnes/docs/publications/DysphagicChoking.pdf Irresponsible Testimony By Medical Experts In Cases Involving Physical Abuse and Neglect Of Children Chadwick and Krous, Child Maltreatment, Vol 2. No.4 (1997). Irresponsible Testimony By Medical Experts • Absence of proper qualifications • Unique theories of causation • Unique or unusual interpretations of medical findings • Alleging non-existent medical findings Irresponsible Testimony By Medical Experts • Flagrant misquoting of medical journals or texts • Making false statements • Deliberate omission of pertinent facts or knowledge John Lloyd: Biomechanic Specialist PANAMA CITY — The only witness for the defense in a recent child abuse case was arrested and charged with perjury this weekend. John Lloyd: Biomechanics “expert” Lloyd stated he was a “professor of medicine” at the University of South Florida College of Medicine. However, the interim chair at the institution told investigators that Lloyd is not now nor has he ever been a professor of medicine there and they are in the process of issuing a cease-and-desist letter to Lloyd regarding his claims. John Lloyd: Plea Deal John Lloyd won’t be serving as an expert witness anytime soon after he entered a provisional plea of no contest to two felony counts of perjury . But the provisional plea means that if he completes his probation the charges ultimately will be dismissed. Overcoming Untrue Defenses When the defense attacks the TIMING OF THE INJURIES $32,800 Why is this number up here? Dr. Janice Ophoven • Wisconsin taxpayers via SPD paid Ophoven $32,800 to testify for the defense in two cases, just in Milw. Cty • Makes over $180,000 per year – testifying for the defense Overcoming Untrue Defenses • Defense “Experts”: • Have testified many times – professional witnesses • You must have a working knowledge of the underlying medicine; • You must have the ability to dig into the “experts” background, history, and biases; • You must have good working relationship with your medical experts; • Review the defense expert reports with your experts • Develop a trial strategy to confront the defense experts • Decide on the best method of cross examination of the expert Overcoming Untrue Defenses State v. Jennifer Garcia Overcoming Untrue Defenses • “T” • By age 3, T has lived with multiple different relatives; • T’s parents constantly in/out of custody • Spring of 2014: • Both of T’s parents are in custody; • T is living with his paternal grandmother – ill equipped to care for a young, energetic child; • June 7, 2014: • T is dropped off at Jennifer Garcia’s home Overcoming Untrue Defenses • Jennifer Garcia – • Latin Queen gang member; • Has multiple children with T’s father, all girls; • T is the only boy, known to be father’s favorite; • T’s life = reminder of father’s infidelity to Garcia • By June 21, 2014: Overcoming Untrue Defenses • Upon admission to Children’s Hospital of Wisconsin: • Too numerous to count bruises, abrasions, hypopigmented injuries • Subdural hematoma with resulting mass effect, including midline shift of the brain & edema; • Grade II liver laceration; • Total of 161 photos taken to document T’s physical injuries • Many pattern injuries • Many suspected burn injuries Overcoming Untrue Defenses • 9 year old “Savannah” • Was staying with Garcia for the summer • Witnessed Garcia beat T regularly • June 20, 2014: • T asked for a cookie – in response…. • Garcia punched T repeatedly in the head • T threw up • Garcia took T into the kitchen • Savannah – instructed to get Mr. Clean from bathroom • Savannah – retrieves Mr. Clean and upon entering the kitchen… Overcoming Untrue Defenses “Savannah” • T – unresponsive • Garcia – put T into a bath in an attempt to revive T • T’s fists clenched tight to chest • “Decorticate Posturing” • June 21, 2014: • Garcia calls her mother and friend over to concoct a story that T was dropped off at Garcia’s house injured • Garcia attempts to convince “Savannah” to lie • For hours, T remains unresponsive on the floor Overcoming Untrue Defenses • Fantastic Investigation by Police • Cigarette Incident – witnessed by neighbor • Elaborate conspiracy to cover up abuse • Result: • Garcia is charged with: • 7 counts of child abuse (including two counts GBH) • 1 count of child neglect resulting in GBH • 1 count inflicting mental harm • 3 counts of conspiracy to intimidate a victim Overcoming Untrue Defenses Enter the wicked witch…. • Curriculum Vitae • “Pediatric Forensic Pathologist” • MD from U of Minnesota • Former Director of Children’s Hospital of Minn - Laboratories • Former Deputy Director – Hennepin County ME’s Office • Forensic Pathologist, St. Louis County ME’s Office • Former - Child Mortality Review Panel Member • Consultant – Midwest Resource Center for Child Abuse • “30 years of experience” in the evaluation, investigation, and interpretation of injuries in childhood Overcoming Untrue Defenses Ophoven’s “History”: • T was dropped off @ Garcia’s house 3 days ago (false); • “Savannah” took T into the kitchen, where T slipped on his vomit and fell (false); • Garcia put T to bed – T was alert (false); • Tramonte did not lose consciousness (false); • Morning of June 21, 2014 – T was alert and moving
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