Thursday, November 3, 2011

United States Supreme Court affirms Shaken Baby Syndrome as valid diagnosis and basis for conviction in Cavazos v Smith

In a very important decision today for the shaken baby syndrome (SBS) community and lawyers who handle SBS cases, the United States Supreme Court affirmed the conviction of a person convicted of causing the death of a baby by SBS.  The decision is important because six (6) members of the court approved of the decision to affirm the jury’s conviction (i.e. meaning not only the conservative 5 justice block of Alito, Roberts, Thomas, Scalia and Kennedy, but also Justice Kagan, a recent appointee of President Obama).  In affirming the conviction, the court held as follows:

“The jury was presented with competing views of how Etzel died.  It was made aware of the various experts’ qualifications and their familiarity with both the subject  of SBS and the physical condition of Etzel’s body.  It observed the attorneys for each party cross-examine the experts and elicit concessions form them.  The State’s experts, whom the jury was entitled to believe, opined that the physical evidence was consistent with, and best explained by, death from sudden tearing of the brainstem caused by shaking.  The Ninth Circuit’s assertion that these experts ‘reached [their] conclusion because there was no evidence in the brain itself of the cause of death’ is simply false.  There was  ‘evidence in the brain itself’  The autopsy revealed indications of recent trauma to Etzel’s brain, such as subdural and subarachnoid hemorrhaging, hemorrhaging around the optic nerves, and the presence of a blood clot between the brain’s hemispheres. The autopsy also revealed a bruise and abrasion on the lower back of Etzel’s head.  These affirmative indications of trauma formed the basis of the experts’ opinion that Etzel died from shaking so severe that his brainstem tore.

“Defense counsel made certain that the jury understood that the prosecution’s experts were unable to identify the precise point of tearing itself. But as Judge Bea noted in his dissent from the Ninth Circuit’s denial of rehearing en banc, the experts explained why the location of the tearwas undetectable: “Etzel’s death happened so quickly that the effects of the trauma did not have time to develop.” Smith v. Mitchell, 453 F. 3d 1203, 1207 (2006). According  to the prosecutions’ experts, there was simply no oppor­tunity for swelling to occur around the brainstem before Etzel died. In light of the evidence presented at trial, the Ninth Circuit plainly erred in concluding that the jury’s ver­dict was irrational, let alone that it was unreasonable for the California Court of Appeal to think otherwise. See §2254(d). Doubts about whether Smith is in fact guilty are understandable. But it is not the job of this Court, and was not that of the Ninth Circuit, to decide whether the State’s theory was correct. The jury decided that question,
and its decision is supported by the record.*” 

“*The dissent’s review of the evidence presented to the jury over seven days is precisely the sort of reweighing of facts that is precluded by Jackson v. Virginia, 443 U. S. 307, 324 (1979), and precisely the sort of second-guessing of a state court decision applying Jackson that is precluded by AEDPA, §2254(d). The dissent’s views on how “adamant­ly” experts would testify today as opposed to at the time of trial, post, at 6 (opinion of GINSBURG, J.), are of course pure speculation, as would be any views on how a jury would react to less adamant testimony.”

The decision also recounted some of the factual findings of the experts who performed the autopsy.

The prosecution presented the testimony of two (2) physicians involved with the autopsy of the deceased 7 week-old child, Etzel Glass, namely, Eugene Carpenter, MD (forensic pathologist) and Stepahnie Erlich, MD (neuropathologist).  Additionally, they presented David Chadwick, MD, a legendary SBS expert from San Diego.

Justices Breyer, Ginsburg and Sotomayor were the three (3) dissenting justices, and they cited numerous published articles which concern the pathophysiology, biomechanics and scientific basis of SBS – intending by referencing the literature to support the dissent’s position that the jury’s conviction should be overturned.   

You can read the entire decision at

If you have any questions or concerns about what can be done to help babies who have been shaken, or families of babies who have died, please call Christopher Keane and The Keane Law Firm toll-free for free consultation at (888) 592-5437 (KIDS), click on contact us here, or use the web form provided at

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