If you find yourself defending an accusation that you or your client have violently shaken or otherwise caused a brain injury to an infant, you will quickly be overwhelmed by medical jargon and seemingly endless theories. Terms like “the Triad” or a “period of lucidity” can be hotly debated in academia and in courtrooms alike. Like most people wrongly accused or defending a person accused of such a heinous crime; there is a natural tendency to want to believe that there must be some explanation for the infant’s brain bleed or other damage other than abuse. You will soon find theories such as “short distance falls” causing brain damage; “re-bleeds;” that shaking hard enough to cause brain damage would necessarily cause detectible injury the neck or cervical spine, and, many, many more that all seem to suggest there may be countless other explanations for the child’s injuries.
You may read about the controversy regarding “the triad” and, especially, regarding the presence of retinal hemorrhaging. These issues are both real; and, yet, often irrelevant to a particular case. It is true, for instance, that not all doctors agree that the existence of retinal hemorrhages automatically means that an infant suffered SBS/AHT. What is difficult to appreciate, however, is how granular the issue is in the medical community. Put succinctly: not all retinal hemorrhages are created equal and understanding whether the retinal hemorrhages in your case fall into a controversial category will ultimately necessitate independent expert review by a supremely qualified expert. Similarly, there are many other legitimate disputes surrounding these cases that are easily misunderstood; too easily embraced; and, occasionally, too easily dismissed. The flood of information and theories that need to be explored often result in overlooking the most obvious – and simplest – question involved in these cases: Who could have hurt the child?
The misconception about SBS/AHT cases that is more likely to result in a wrongful accusation is the idea that an infant sustaining serious, perhaps fatal, brain damage would be immediately comatose upon the event causing the damage. In other words: if you are the one with the baby at the time the infant becomes symptomatic, then you are automatically the guilty party. This outdated misconception is often still taught to medical residents and fellows and testified to in courtrooms. The truth is; however, you would be hard-pressed to find a single neurologist in the country that believes an infant would necessarily become immediately comatose, or even symptomatic. There is a great deal of variance – if not outright speculation – as to how long an injured infant could be asymptomatic (or essentially so) after sustaining a brain injury of one magnitude or another. That variance in opinions may be critical in your particular case; but, often, it is the mere understanding that a serious head injury would not automatically cause immediate symptoms that turns a wrongful accusation on its head.
Almost invariably, the doctor or nurse who coordinates with law enforcement in the early stages of an investigation tells law enforcement that the child would necessarily have been severely symptomatic or comatose upon the event causing the injury. This inaccurate information reduces the case to a simple matter of determining who had control of the infant at the time the infant became symptomatic to investigating officers. When confronted with the “medical facts” that the child “had to have been injured” in their care; such false information can even lead to false “confessions” of grief-stricken care-takers trying to make sense of what could have happened.
Once the truth is known – that the injury could have occurred hours or, in some case, even days before the child became obviously symptomatic – these cases have an entirely different dynamic. Frequently the number of people who “could have” injured the child goes from the defendant alone to 2, 3, or more people. Once it is realized that others had the opportunity to commit the crime, other people with access to the infant suddenly share the microscope with the defendant. Often, when viewed with equal and objective suspicion, others with access to the child appear to be more likely suspects that the defendant who was merely left literally “holding the baby.”
In my experience; when beginning to defend against a false accusation of SBS/AHT, we want to ask “what else could have happened?” While that question is not to be ignored; sadly, the simpler and frequently more helpful question is “who else could have done it.”