Oklahoma Criminal Defense Blog

Any criminal defense lawyer in Oklahoma will tell you when the police get a call for domestic abuse, there’s a guy who is headed to jail.  It doesn’t matter what his spouse or girlfriend says at that time about what happened and certainly doesn’t matter what she says in the days or months later.  Law enforcement and prosecution have set their ears to “deaf,” and will push to prosecute no matter what.  What the police report says, however much disputed by the witnesses who were there, is written in stone for the prosecution, which will always put the worst spin on any nuance of fact and only that worst interpretation.

The U.S. Army is different.  The Army recognizes there are problems in their communities, but they take an approach that involves listening to what happened and involve social workers, chaplains and physicians in an administrative process that is apart from criminal charges.    It does not replace criminal proceedings, but not all suspected cases are prosecuted in criminal proceedings.

The Defense Authorization Act of 2000 provided for the creation of a Domestic Violence Task Force, which created a Case Review Committee (CRC) at most major Army installations.  The CRC is a multidisciplinary team appointed by the installation or garrison commander and supervised by the Military Treatment Facility Commander.  The CRC is overseen by the Army Facility Advocacy Program (FAP).  The purpose of the FAP is “to prevent child abuse, to encourage the reporting all instances of such abuse, to ensure the prompt assessment and investigation of all abuse cases, to protect victims of abuse, and to treat all family members affected by or involved in abuse.”  The purpose of both the FAP and the CRC is to promote and encourage stable and productive families in the Army.

The Case Review Committee (CRC) is composed of the Chief of Social Work, Services, who serves as its chairperson, the installation chaplain, a physician, a representative from the CID (Army Criminal Investigation Command Division, as the Army’s detective organization is known), the Army Substance Abuse Program Clinical Director, the Provost Marshal (also known as the military police), a judge advocate, the Family Advocacy Program Manager, who oversees the Family Advocacy Program at the installation, and the case manager.

The committee meets regularly to review cases of domestic violence and recommend treatment and prevention programs.  It conducts hearings, and that is where judge advocates play an important role.

There is a two-part procedure, first to investigate whether an allegation can be substantiated and determine the best avenue to protect the alleged victim and to properly treat and rehabilitate the alleged offender.  Judge advocates must advise on the legality in obtaining evidence, weighing evidence, and making proper findings and recommendations.  Judge advocates are attuned to ensuring that soldier’s suspected of committing a criminal offense are advised their Miranda rights pursuant Article 31 of the UCMJ (Uniform Code of Military Justice), unlike the police and criminal prosecutors who always push the boundary as much as they can, fully committed to the adversary system.

Of course, the CRC is an administrative process.  It provides for a burden of persuasion that is common to administrative proceedings and civil matters generally, unlike a criminal prosecution.   Findings are made when the finders of fact are persuaded by a preponderance of the evidence, rather than beyond a reasonable doubt.

Also unlike the civilian criminal proceedings, the Army regulations provide that when a soldier refers himself to a social worker or counselor, that person should stop the interview and call CID or an MP for advice about advising the soldier of his rights.  The Army regulation is clear in pointing counselors and social workers to the importance of obtaining legal advice when they are involved in witnessing a communication that might be privileged.   The Army takes literally the Fifth Amendment privilege against self-incrimination, and, in Army criminal prosecutions, requires for a valid arrest the reading of the Miranda warning.

The committee is directed to balance soldier rights and family member protection.  When it votes on the evidence to find a “substantiated” charge, it must recommend a treatment plan and provide family protection if necessary.  In deciding the treatment plan, the CRC refers to an “incident severity index” found in the Army Regulations.   This index is not an answer to every case but a tool the committee can use for classifying different levels of severity.

The CRC responsibilities continue after it makes its rulings.  Reconsideration of its findings can be sought from a soldier, his family, the commander or the CRC can.  This is completely different from the civilian criminal prosecution juggernaut that never veers away from trying to convict from the moment the police arrive at the scene of the call.

The CRC process and its wide mission of healing all parties may change.  In 2000, the Task Force on Domestic Violence recommended creation of a Domestic Violence Assessment and Intervention Team (DVAIT).  It would be managed by the FAP, but unlike the CAC, it would not make any findings to substantiate allegations but focus exclusively on assisting the alleged victims and leave the commander and law enforcement to decide on prosecution options.

It is axiomatic when a baby is seen at a hospital emergency room.  The child has no marks or apparent injury.   The child is examined, and when they find the triad of symptoms, it is axiomatic: Child abuse.   The triad of symptoms is: subdural hemorrhaging,  retinal hemorrhaging, and swelling of the brain.  Subdural hemorraging is bleeding in a space between the skull and the brain.  Retinal hemorrhaging is bleeding at the back of the eyes.

Law enforcement describes it as “suspicion” of child abuse, but that may sound like this is just a starting position from which an investigation begins and is conducted with an open mind.   Not really.  Because law enforcement has been indoctrinated that these symptoms are almost necessarily caused by child abuse.  Any suspect who says they don’t know what caused the symptoms will be arrested and prosecuted.  Unless someone can otherwise explain those symptoms, criminal charges will be filed and any investigation is narrowed to gathering more evidence to convict, nothing else.

Since the 1980s, something called “shaken baby syndrome” came into medical literature ansd soon into criminal prosecution.  It arose from some experiments made on rhesus monkeys in the 1960s by a neurosurgeon named Ayub Ommaya.  He subjected the monkeys to acceleration experiments but never experimented with shaking them.  Obviously, he never experimented on children.   Nevertheless, pediatric specialists wrote papers citing that study as evidence that unexplained subdural bleeding in babies could occur without direct impact to the head and without or without visible neck injury.

Prosecutors began to call doctors to testify that shaking a baby could generate the same force as throwing a child from a second story window.  This is a very dramatic illustration to generate the jury’s anger.  But it was not true.  A neurosurgeon named Ann-Christine Duhaime published a paper that discussed her study with biomedical engineers who used infant-sized dummies for acceleration studies.  They equipped the dummies with sensors to measure the acceleration.  Shaking the dummies as hard as they could never produced the force earlier claimed.  This and subsequent experiments raised doubts in the minds of some doctors and biomedical engineers that shaking alone could cause severe brain damage or death.   However, the experiments did not rule it out since the dummies are not live children and the effects of acceleration on brain tissue are hard to model.

Some doctors are now called to testify by criminal defense lawyers to testify.  Skeptical of the “shaken baby syndrome, ” based on the later research, they believe shaking alone could in theory cause the triad of symptoms, but only if there is an injury to the neck or spinal cord.   This is a critical departure point between the prosecution experts and the defense experts.

When Audrey Edmonds was prosecuted in 1996 for the child abuse death of a child, the triad of symptoms was observed but no spinal cord injuries.  She denied ever harming the child, but the prosecution witnesses testified she had to have been the person to inflict the injuries on the child because, as she told authorities, she had care of the child and observed the child to go limp.   Robert Huntington, a forensic pathologist, was one of the prosecution witnesses testified the child had to have been injured two hours before the child collapsed.

Of course, Edmonds was convicted and sentenced to 18 years in prison.   Then, ten years later, Edmonds was granted  a hearing to determine whether she should get a new trial.  Her defense attorney called as a witness the same Robert Huntington, who had now changed his opinions and now testified he had since observed a child with subdural hemorraging and retinal bleeding yet was lucid for some time between a brain injury and collapse.   His earlier testimony had been that the collapse would necessarily be within two hours of injury.

After that observation, Huntington revisited the medical literature in the field and found research that supported the new observation.   He now believed that a lucid interval between injury and collapse is a real possibility, and he could therefore no longer precisely time the injury that caused the death of the child for whom Edmonds was convicted.   He testified he simply could not say when the injury had occurred.

Some of that newer research includes a 2001 study by British neuropathologist named Jennian Geddes.  That study found most babies with the triad of shaken-baby syndrome symptoms suffer from a lack of blood to the brain – not from a rupture of the nerve fibers of the brain.  The lack of blood is caused by oxygen deprivation.  Rupture of brain nerve fibers is immediate.  It causes an instant coma.  Oxygen deprivation, on the other hand, can have slower and subtler results.  This could explain how a baby with shaken-baby syndrome triad of symptoms could seem fussy or lethargic or stop eating or sleeping well for some time after the injury.  Even Cindy Christian, a leading proponent of the triad of symptoms alone as indicating shaken baby, conceded in a 2005 paper that, “although infrequent,” victims of fatal head injury may appear lucid for a period before death.

Audrey Edmonds was granted a new trial by the Wisconsin Court of Appeal in 2008.  The court wrote that the disagreement among physicians was a shift in medical opinion, and therefore Edmonds deserved a new trial.

Among the alternative explanations for the triad of shaken-baby syndrome are infant stroke related to an infection, such as meningitis, resulting in thrombosis.    Defense experts concede that severe retinal bleeding is far more common in cases of abuse but assert that does not mean it is never found in other circumstances.  At last year’s meeting of the American Academy of Forensic Sciences, Evan Matshes, a Canadian forensic pathologist, presented a study of 123 autopsies performed in Miami, Florida, on infants who died from natural or accidental causes or homicides.  Of those with retinal hemorrages, 53 per cent died from accidental or natural causes and 47 per cent from homicide.  Severe retinal hemorrages were found in some of those who died from accident.  Those in the homicide group were more likely to have severe retinal hemorrages, but this could be explained by factors other than abuse.  For instance, the children in the homicide group had isolated head injuries and were more likely to be resuscitated, and, thereafter, they were more likely to develop brain swelling and bleeding disorders.  Matshes concluded, “It is simply incorrect to state that severe retinal hemorrhaging is diagnostic or abuse or shaking.”   He is now investigating whether infants with subdural bleeding and brain swelling might actually have neck injuries that have not been discovered.

Patrick Barnes, a pediatric radiologist who began as a believer in the prosecution theory, even an author of a chapter of a textbook espousing the traditional prosecution theory, but converted, after much reflection and study, to the other side and sees other possible explanations for the triad of symptoms.  He testified for Audrey Edmonds in her bid for a new trial.  He says most of his colleagues in the field do not simply present the science dispassionately, that they have built their whole careers on this one issue.   One of those is Robert Block, an Oklahoma City testifying doctor and this year’s president of the American Academy of Pediatrics, who has made his name by complete commitment to the single-explanation prosecution theory without a shred of doubt.   Block was critical of Deborah Tuerkeimer, a law professor and former prosecutor, when she wrote an Op-Ed piece last September in the New York Times that warned of wrongful convictions and sought the involvement of the National Academy of Sciences to referee the dispute between the experts.   Block appears not to welcome other scientists to the debate.

Texas’ plan to hire hundreds of child abuse investigators with law enforcement backgrounds did not work out. The idea was to improve the investigative power of Child Protective Services with caseworkers who had better investigative techniques. After four years of trying, hundreds of the “special investigators”have quit the agency.

One-third of the positions are now vacant. Two hundred seventy three of the 431 investigators hired in the last 4 years have left. Those who have left have claimed the agency was ineffective. They claimed the job description was confused

Last year, three children from the Houston area died after they had been reported as possible abuse victims.  A child from Arlington died from being left in a hot car as the agency was contacting the family repeatedly.  The mother had a history of abuse and neglect, but no action had been taken to protect the child.

Spokesman Patrick Crimmins said the agency knew there would be difficulties assimilating law enforcement types into the agency. He admitted there had been friction but said the special investigators make the agency stronger. Some of those who have left claimed there was a major culture clash between the older, law enforcement types and the usually-younger, less experienced agency caseworkers.

One of those who left was Thomas Davidson, is a 40-year veteran of law enforcement.  He was a special investigator for 2 months with the agency in 2007.  “It just wasn’t the job I was led to believe,” he said. “It’s more of a caseworker than an investigator…”

The agency obviously envisioned making their caseworkers into better investigators, so they hired people with investigator backgrounds.  But those with investigator backgrounds were former police detectives whose former jobs gave them much more free rein.  “Book ‘em, Danno,” was not part of the Child Protective Services culture.