Oklahoma Criminal Defense Blog

Pedro Hernandez confessed last month to the murder of Etan Patz, a 6-year old boy who disappeared in New York in 1979.   Indeed Hernandez worked at a small grocery on the corner where the boy was supposed to catch his bus, but some experts are raising questions about the credibility of the confession.

Hernandez is now a family man, confessing to a crime 33 years old.  So, did he commit this crime only and then walk around with the guilt for three decades, or has he killed other people in the interim?  Psychiatrists say it is an odd case.

Hernandez was 18 at the time, and that is about the age when psychiatric conditions such as schizophrenia and bipolar disorder first manifest. It is possible Hernandez committed this murder and then got treatment for the rest of his life, and that could account for his going 33 years without being noticed by the police.  If he started medication, he could have then controlled his symptoms.  People who know Hernandez say he is taking Zyprexa, which is often prescribed for schizophrenia and bipolar.

But back in the 1970s, psychiatric treatment was rarely accessed by someone like Hernandez, a teenager from a large working-class family.  Effective treatment so quickly after first symptoms would have been rare in the ‘70s.  And, for him to avoid the symptoms, Hernandez would have had to stay consistently on his medication consistently, often not done.

His case does not fit known patterns.  For one thing, Hernandez told police he killed the child but did not admit any sexual motives.  Forensic psychiatrists say, however, adult men who kill strangers of school age almost always do it for sexual reasons.  One psychiatrist’s studies cover reports of 1,500 serial killers.  Of those, 50 involved an adult male killing a child who was a stranger.  In all but 3 of those cases, there was evidence of a sexual motive.  Further, in all of those 3 cases, the killers were clearly recognized before their crimes as dangerous people. People noticed them as dangerous.

Hernandez, however, was known to his family and neighbors as married and two children.  Psychiatrists say someone who kills a child at age 18 was likely already crazy- dangerous for a year or two and is not likely to improve a lot by age 42.   If Hernandez was a sexual predator, it would have been very hard for him to silence those urges for a lifetime.

We are reminded that over 100 people confessed to killing President John F. Kennedy when he was assassinated.  Hernandez may be one of these.  But if he did not kill young Etan Patz, who did?

Another suspect did surface, and the Petz family brought a civil case of wrongful death against him in 2004.  The family won the lawsuit against Jose A. Ramos, who said he believed he had molested Etan but did not kill him.  Ramos is in prison in Pennsylvania from a conviction for child molestation in a different.

Details of the confession Hernandez gave are still now known in detail, but as those details are revealed, more of Hernandez will come to light, as well as the details he gave to police – or failed to give.

Trayvon Martin was shot to death in Sanford, Florida last April.  Fred Zimmerman shot him.  That much is known, but too little else is known for sure.

The shooting made national headlines because it involves the “Stand Your Ground” law that allows Floridians to use deadly force in self-defense under certain circumstances.  It also made headlines because Trayvon was African American and Zimmerman was not, and Zimmerman was not initially charged with any crime.  The African-American community and its sympathizers cried “foul.”  Eventually, even the President of the United States came down to make a statement.

Now that Zimmerman has been charged with second degree homicide by a second prosecutor appointed by the governor, the jury will have to decide most importantly what was in the mind of Zimmerman just when he pulled the trigger.  Intent and state of mind are always proved or disproved by circumstantial evidence, and ultimately by arguments about the tiniest details.  The problem in this case is that a lot of details were lost due to the haphazard investigation by the small-town police force.

Zimmerman told police he thought Martin, 17 yrs old, was an intruder in his gated community.  Investigation has shown he was not an intruder.  Martin was a guest at the Retreat at Twin Lakes and his girlfriend was exchanging text messages just before he was shot. Most critically, there were no witnesses to the beginning of the fight between the two, the fight ended with Martin’s getting shot to death and Zimmerman receiving a broken nose and lacerations on the back of his head.  Witnesses saw the two fighting and heard one of them crying, “help,” but it’s uncertain which of them cried out.

Police interviewed Zimmerman only 15 minutes before concluding the shooting was justified.  They never looked for his car, the location of which might have given some perspective on how far he walked to Martin.

Also significant, as reported from the first, was the fact that Zimmerman followed Martin and reported his following to the 9-11 call center.  When Zimmerman made this call, the 9-11 operator told Zimmerman to get back in his car, not to confront Martin.  It is this fact, that Zimmerman disregarded the 9-11 dispatcher, that Martin sympathizers claim makes Zimmerman an aggressor and therefore guilty of causing a confrontation and of killing Martin unnecessarily.  Zimmerman sympathizers claim that a 9-11 dispatcher has no authority to give any directions or legal advice, and that Zimmerman simply continued to follow Martin until Martin attacked Zimmerman.

That would be the nub of the case if Zimmerman were facing a jury in Oklahoma.  The jury would be given an instruction of law as follows: “ A person is an aggressor when that person by his/her wrongful acts provokes, brings about, or continues an altercation.” The instruction also provides the following additional language where appropriate: “The use of words alone cannot make a person an aggressor.”  OUJI-CR 8-53:  Defense of Self-defense – Aggressor Defined.
The jury in Oklahoma would also be given an instruction of law that provides:
“A person is justified in using deadly force in self-defense if that person reasonably believed that use of deadly force was necessary to protect himself/herself from imminent danger of death or great bodily harm. Self-defense is a defense although the danger to life or personal security may not have been real, if a reasonable person, in the circumstances and from the viewpoint of the defendant, would reasonably have believed that he/she was in imminent danger of death or great bodily harm.”  OUJI-CR 8-46: Defense of Self-defense – Justifiable Use of Deadly Force”

The Court of Criminal Appeals has further explained regarding this law:
“Fear alone does not justify a homicide, nor may a homicide be justified because of threats or insults by the decedent, nor may a defendant kill and be justified when acting simply on subjective honest belief. Rather, a homicide is justifiable when a reasonable person would have used deadly force. A homicide is also justifiable when the use of deadly force is reasonably necessary because the danger appears imminent.”  And finally, “The jury should view the circumstances from the viewpoint of the defendant.”

Moreover, if Zimmerman was not the aggressor (as defined above), he would have no duty to retreat in Oklahoma.  “A person who (was not the aggressor)/(did not provoke another with intent to cause an altercation)/(did not voluntarily enter into mutual combat) has no duty to retreat, but may stand firm and use the right of self-defense.”  (OUJI-CR-8-52)

When this case finally goes to trial in Florida, it will be difficult for observers to follow the evidence in the media because the smallest details in evidence can be significant, and the contexts of those details matter a lot.  It requires considerable time and patience to present all that is necessary for a full understanding of those details and those contexts, and headline news does not have that patience nor give that time. This is one of the reasons trial judges warn juries not to read or listen to news reports of the case they are hearing.

Everyone knows from thousands of television programs that someone has a right to silence when arrested.  On television, that right is rarely exercise since it makes better theater to include an interrogation scene.   In real life as well, the right to remain silent is rarely exercised, often because people believe they will look guilty.  But t he right to remain silent is commonly understood to exist

How to exercise the right to remain silent is not commonly understood, however.  Most people are afraid that if they declare their wish to remain silent can be used in evidence against them.  It cannot.  The very existence of a right to remain would be meaningless if its use were presented to a jury as prosecution evidence.

So, when someone is read his Miranda Rights, does he just remain silent, and that act of silence constitute the exercise of the right to remain silent?  Some people have thought so.  It could make sense for it to operate that way, but it depends on the courts say.  Now the U.S. Supreme Court has told us, and the answer is no.

Van Chester Thompkins was accused of shooting another man in in Michigan in 2000.  When he was read his Miranda rights, he refused to sign the acknowledgment form which would have given acknowledgment that he understood his rights.   He then remained silent for three hours of police interrogation.  Finally, a police officer asked a few questions of Thompkins, the last one of which which was, “Do you pray to God to forgive you for shooting that boy down?”

Thompkins answered affirmatively to that question, and that response was used as evidence against him at his trial.  He was convicted of first-degree murder.  His appeal of that conviction found favor at the U.S. Court of Appeals for the Sixth Circuit in Cincinnati.  That court agreed Thompkins’ response should have been excluded as protected speech under the Fifth Amendment right to remain silent on the rationale that the prosecution could not prove Thompkins had knowingly and voluntarily waived his right.

After winning that round, however, Thompkins lost the final round at the U.S. Supreme Court in the decision entitled Berghuis v. Thompkins.  In a 5-4 decision, Justice Kennedy wrote that decisions from the Court issued since the Miranda decision had diminished the language of the original Miranda decision.  A more sensible rule, Justice Kennedy wrote, would be to put the burden on suspects to invoke their rights, affirmatively.   “A suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police,” Justice Kennedy stated.

Justice Kennedy was joined by Chief Justice John Roberts, Justices Scalia, Thomas and Alito in the opinion.  Justice Kennedy said that someone who knew their rights and acted “in a manner inconsistent with their exercise might be presumed to have waived their rights.  The point he made was that responding to police questioning is itself an implied waiver of the right to remain silent.

But Justice Sotomayer in her dissenting opinion, then picked up that point from the majority opinion and questioned it as a paradox.  “A suspect who wishes to guard his right to remain silent must, counterintuitively, speak.”

She went on in her dissent, joined by Justices Stevens, Ginsburg and Breyer, to urge that the principles in the majority’s decision “flatly contradict” earlier decisions from the Court.  She said the better practice when faced with ambiguous responses from a suspect, as in this case, would call for the police to ask follow-up questions like, “Do you want to talk to us?”

The verdict in the Casey Anthony should have been no surprise.  Of course, the jury might have found her guilty given the wealth of scandal, emotion, teeth-gnashing, finger-pointing and the undeniably tragic death of the child.  But evidence beyond a reasonable doubt-where was it?

Casey Anthony was evasive, untruthful and certainly exhibited reprehensible behavior for a grieving mother.  The prosecution offered some fragments of evidence that might, slightly be incriminating.  But evidence of murder?  Beyond a reasonable doubt?  No.

Juries are given an instruction of law that requires them, in order to bring back a verdict of guilty, to find the evidence persuasive beyond a reasonable doubt.  Juries sometimes do and sometimes do not follow that instruction, so you never know.  But here, the evidence did not even establish the fact of a homicide.   The remains of the child were so old the medical examiner could not even give an opinion as to a cause of death.  Thus, the child might have died naturally.  Duct tape on the child’s mouth was extremely suspicious, but it could have been put there after the death.

There was a death. So the prosecution filed a murder case.  The prosecution might have had the courage to decline to file the case.  That is hard to do when the media is clamoring for SOMETHING to be done.  And those who clamor the loudest are usually the first to blame the prosecution for a poor job when the not guilty comes back.   Here, no cause of death, no link to Casey Anthony to the little girl’s body, no one who could say Casey did anything except act strange and heartless and without any seeming care for her missing/deceased daughter.

The prosecution can always brag they held Casey Anthony in jail for two years before she could get to the jury.  That is the power of the prosecution: the defendant must wait in jail unless bail is set in an amount the defendant can pay.   But that’s not much of a brag; having kept someone in jail who was innocent all along.   Threaten someone with the death penalty based on innuendo like this?   This case took circumstantial evidence to an extreme, but propped it up with lots and lots of weird behavior by the accused.

Casey Anthony’s criminal defense attorneys tried to explain the child’s disappearance by blaming Casey’s parents.  Their evidence was thin, and, of course, the parents denied it.  Much of the coverage of the trial was about this evidence and about Casey’s claim that her father abused her as a child to explain her bizarre lack of emotion.  The defense’s claim that Casey was abused as a child was so little supported by evidence that the trial judge did not allow Casey’s criminal defense lawyer to mention it during closing argument.  The jury was likely not persuaded by this defense theory, but the burden of persuasion never leaves the prosecution in a criminal case.  If the jury was not persuaded by the State’s evidence, it did not matter what else the jury thought or wondered or doubted or speculated about.

The State’s case was built on a death, a few odd facts of a superficial nature, and primarily character assassination greatly assisted by the defendant herself.  Casey Anthony was not a sympathetic figure, and juries often punish those whom they do not like, especially a mother who shows absolutely no grief for her missing daughter.  That is something one could imagine a jury could punish, even without evidence. even though the law prohibits it.  Likely the prosecution was banking on that.

But the prosecution failed in other ways.   The child’s body was missing for so long arguably because of law enforcement laxity.  The bungling of the Sheriff.   The body of Casey’s daughter, Caylee, was not found for six months, and by then was so decomposed that no evidence could be found from it, not even the cause of death.   Sheriff’s deputies had been alerted to something unusual at the place where the body was found by a meter reader who called them for 3 days straight.  When the deputies finally responded, they went through the motions and found nothing.  And so everyone wondered for another six months.

Crime declined last year to the lowest rate in 40 years.  The findings reported by the F.B.I. has baffled experts for a number of reasons.  This drop in crime continues declines in previous years, and that continuation of decline also baffles the experts.

The statistics, reported to the F.B.I. from 13,000 local law-enforcement agencies, show that in small towns with populations under 10,000. the number of murders declined more than 25 percent from the year before.  Nationally, violent crimes declined by 5.5 percent from the previous year, and that previous year (2010) had also witnessed about a 5.5 percent decline from the year 2009.  Nationally, murder declined while property crimes, including larceny, burglary, car theft, and arson, dropped only 2.4 percent last year, following a drop of 4.6 percent drop the year before.  Last year in all regions of the country, the odds of being murdered or robbed were not even half what they had been at the statistical apex of reported violent crimes in the 1990s.

New York and San Antonio were the only cities of over a million to witness an increase in violent crimes.  These increased in New York 4.6 percent last year to the total number of violent crimes reported of 48,489.  In New York last year, rapes reported increased 24.5 per cent, murders 8.24 percent with an increase of 65 murders over 2009, which had been the lowest number since the 1960s.  The further historical backdrop for this that 2,245 murders were recorded in New York in 1990, but less than 900 for the last 9 years.

Some of the standard explanations are that, when crime statistics go up, they are explained as the result of better reporting due to more effective police “encouraging victims to come forward, “ and when crime shows a decrease, it’s a result of good police work.   Criminal defense attorneys hear that all the time.

Crime is supposed to increase in times of economic distress and recession, such as we are, in periods of higher unemployment.  The experts are therefore puzzled.  Neither can they explain how crime has dropped another year after the previous declines.

Another popular theory, certainly among the public, is that higher incarceration rates are supposed to lower crime, yet these drops are taking place as the country has been lowering incarceration rates.

Everyone old enough remembers the attempted assassination of President Ronald Reagan.  There was no dispute on who the shooter was.  But, Richard Hinkley, charged with the shooting, was found not guilty by reason of insanity.   He was then held in a mental facility instead of a prison.  A few years later, to great publicity, Hinkley requested and was granted weekend leave from the facility.  Weekend leave:  There was public outrage to the verdict of insanity and added outrage that Hinkley was let out for the weekends.

No wonder things the laws regarding the insanity defense changed after Hinkley.  Now, Jared Loughner is likely going to face the death penalty, and his anticipated insanity defense faces much higher hurdles.  Loughner is charged with shooting U.S. Congresswoman Gabrielle Giffords at a political rally in Tucson, Arizona.  Rep. Giffords, mortally wounded, continues to survive in the hospital, but an aide to the Congresswoman, a federal judge, and four other people were killed, including a nine-year-old girl.

The federal government will have first crack at prosecuting Loughner.  He has been charged in federal court with one count of attempted assassination of a member of Congress, two counts of killing an employee of the federal government, and two counts of killing a federal employee.  The government will make its decision whether to file for the death penalty after Loughner is given a mental examination.

Since the federal death penalty was reinstated in 1988, only three people have been executed, include the Oklahoma City bomber, Timothy McVeigh, who was executed in 2001.   The other two were Juan Raul Garza, a drug trafficker, who was executed in 2001 for the murders of three other drug dealers in Texas, and Louis Jones, who was executed in 2003 for the kidnaping and murder of a female soldier.   There are sixty others who are awaiting execution in prison under a federal death sentence.  Some others who have been charged with murder in federal court but against whom the death penalty was not sought include Ted Kaczynski, the Unabomber, Eric Rudolph and Susan Smith.  Representing all of these was Judy Clarke, who has been appointed to represent Loughner.

Clarke is unlikely to succeed in negotiating the government away from seeking the death penalty in this case, however.  This a mass killing, including that of a federal judge, a little girl and attempted killing of a member of Congress-it does not get any more serious than that.  But, just in case the federal government doesn’t seek the death penalty, the state of Arizona will.   In fact, even if the federal government does seek the death penalty, state charges will likely be filed and the death penalty sought.

Oklahoma witnessed this scenario in the Oklahoma City bombing trial.  The federal jury found Terry Nichols guilty but declined to give him the death penalty.  Convinced he was a better lawyer than the team of federal lawyers that had tried Nichols the first time, then-District Attorney of Oklahoma County Robert Macy insisted on trying Nichols again, insisting he could  get him the death penalty.  After countless legal maneuvers back and forth, the prosecutors from Oklahoma County were forced to present their case in McAlester, Oklahoma.  Of course, the jury did not care how much of the taxpayer’s money had been wasted in this extra prosecution, including the funds to pay for a team of court-appointed attorneys, and the jury gave Nichols a second life sentence.  Nichols has never spent a day in state prison, and he never will.  His co-defendant, Timothy McVeigh, was not tried in state court because the federal jury had given him the death penalty, and the state prosecutors did not waste taxpayers’ money seeking a second death penalty sentence.

Arizona does not provide for a verdict of “not guilty by reason of insanity.”  Instead, an Arizona jury can deliver a verdict of “guilty but insane.”  That way, someone under such a judgment would be sent to a mental facility, but, should they ever regain legal sanity, they would never leave custody but would be sent to a prison, already sentenced.

In addition to an insanity defense, Loughner could defend on the theory of “diminished capacity.”  His attorneys would argue Loughner was mentally impaired, which concedes some responsibility for his actions but less than would qualify him for the death penalty.  As one would expect, there is plenty about Loughner to make that argument.  He was a loner, and his ideas posted on the internet and communicated to those who knew him describe beliefs that are a jumble of incomprehensibility.  But he left a trail of evidence that could indicate he was planning the shooting, all of which the government will use against him to prove intent.

The State of Illinois has abolished the death penalty.  Governor Pat Quinn signed the bill passed by the legislature in January.  At the same time, he commuted the death sentences of 167 prisoners sitting on death row.  Their sentences were commuted to life without parole.

Quinn was elected governor in 2009.  During the campaign for election, he supported the death penalty when “applied carefully and fairly.”  Only upon the announcement of his signing the bill did he reveal whether he would sign the legislature’s bill.

Governor Quinn’s own words explain his actions better than paraphrase.  He said, among other things:

As a state, we cannot tolerate the executions of innocent people because such actions strike at the very legitimacy of a government.  Since 1977, Illinois has seen 20 people exonerated from death row.  Seven of those were exonerated since the moratorium was imposed in 2000.  That is a record that should trouble us all.  To say that this is unacceptable does not even begin to express the profound regret and shame we, as a society, must bear for these failures of justice.

Since our experience has shown there is no way to design a perfect death penalty system, free from the numerous flaws that can lead to wrongful convictions or discriminatory treatment, I have concluded that the proper action is to abolish it.  With our broken system, we cannot ensure justice is achieved in every case.  For the same reason, I have decided to commute the sentences of those currently on death row to natural life imprisonment, without the possibility of parole or release.

I have found no credible evidence that the death penalty has a deterrent effect on the crime of murder and that the enormous sums expended by the state in maintaining a death penalty system would be better spent preventing crime and assisting victims’ families in overcoming their pain and grief.

The debate in the legislature focused on more than a dozen death row prisoners who were found to have been wrongfully convicted, including one who was within 50 hours of execution.  Opponents of the death penalty also focused on its costs.  Legislators had help from well-known death penalty opponents like South African anti-apartheid leader Bishop Desmond Tutu and Sister Helen Prejean.  Also among them were actor Martin Sheen, whose son has saturated the airwaves lately proving how much psychological help he needs by his exaggerated denials that he needs any help, intervention, or drug rehab.

Proponents of the death penalty focus on the victims’ families, argue fairness and claim it is a deterrent.   Deterrent is an issue Governor Quinn addressed.  Clear conclusions of cause and effect in human behavior issues like this are hard to come by.   Each side insists their side is the intuitive, obvious path, but empirical proof is thin.  Criminal defense lawyers will tell you that defendants in homicide cases think they will never be caught, if they had any thoughts about any penalty at all.

Fifteen other states have abolished capital punishment.  Illinois is one of several states that have lately reconsidered the death penalty.  New Jersey abolished it in 2007.   New Mexico’s legislature abolished it in 2009, but there have been some efforts to reinstate there.  Connecticut’s legislature passed a bill last year to abolish it, but the governor vetoed the bill.

Did the F.B.I. just take advantage of the suicide of Dr. Bruce Ivins by closing the case and pretending to have solved a crime?  Some think so, and the recent report by a panel from the national Academy of Sciences ads fuel to the claim.   The panel concluded the F.B.I. overstated the strength of their analysis to a supply kept by Dr. Ivins, a microbiologist employed at the U.S. Army Medical Research Institute of Infectious Disease.

The report from the panel of experts concluded that genetic analysis done by the F.B.I. did not definitely demonstrate that the mailed anthrax spores were grown from a sample taken from Dr. Ivins’s laboratory at Fort Detrick near Frederick, Maryland.  However the panel did state the evidence was “consistent and supports an association” between anthrax taken from Dr. Ivins’s laboratory and anthrax used in attacks.  The report addressed only the scientific aspects of the investigation.

The crimes Dr. Ivins was suspected of were the mailings letters in Princeton, New Jersey, in September and October,2001, with anthrax which killed 5 people and sickened an additional 17.  Coming just after the Al Qaeda attacks on September 11, 2001, they caused a panic over bioterrorism.  At the time, many feared the mail attacks were the work of Al Qaeda.

Dr. Ivins committed suicide in 2008.  The F.B.I. concluded he was the solely responsible for the attacks.  The panel, which was paid $800,000 for their study to assess the F.B.I.’s work,  concluded the F.B.I. failed to take advantage of new scientific techniques, molecular methods to identify and characterize anthrax samples, developed between the 2001 mailings and Ivins’s suicide.

The F.B.I. in a joint statement with the Justice Department did not dispute the weaknesses reported by the Academy panel.  It said the scientific panel stated what “is and is not possible to establish through science alone in a criminal investigation.  It said the F.B.I. relied, not only the scientific evidence, but all the evidence from its investigation to conclude “Dr. Ivins was the perpetrator of the deadly mailings.”

Some investigators insisted Ivins was guilty based on circumstantial evidence, such as working unusually late hours just before the two mailings were made and a recorded conversation with a collegue in which Ivins was ambiguous in his responses as to whether he was the anthrax mailer.  But Ivins’s fellows at the laboratory insist he was eccentric but innocent.

Critics suggest the F.B.I. took advantage of Ivins’s suicide by closing the investigation.  New attention is called to another possible perpetrator, the possible evidence of anthrax found at a rudimentary Al Qaeda laboratory in Afghanistan.  Investigators reported having investigated the laboratory thoroughly, including interviews with those who used the laboratory, that there was no evidence it could have produced the anthrax used in the mailings.

The mailings generated the most expensive and manpower-intensive investigation in American history.  The F.B.I. and the Postal Inspection Service devoted 600,000 work hours in that investigation.  It entailed 80 searches, 5,750 grand jury subpoenas and 10,000 witness interviews.  It involved 29 laboratories at government, university and commercial facilities.  It also began a new branch of science now called microbial forensics, which uses genetics and other evidence to trace the source of biological pathogens.

The Army psychiatrist accused of gunning down fellow soldiers at Fort Hood, Texas, is facing the death penalty.  Major Nidal Hasan now faces death in the court martial charging him with 13 counts of premeditated murder.  He is also facing 32 counts of attempted murder.  Colonel Morgan Lamb,  Hasan’s brigade commander acting as the convening authority in the case, has just recommended the death penalty be sought for the alleged shootings in 2009.  The presiding judge who presided over Hasan’s Article 32 hearing had also made that recommendation.

Hasan’s defense attorney was not surprised, he said, though he was disappointed by the decision to seek the death penalty.  John Galligan said he knew the Army had made this decision long ago.  The convening authority is supposed to make its own, independent decision in the matter.  Galligan and his fellow defense team members met with the convening authority a month ago and urged him not to seek the death penalty because it would be less costly, less time-consuming and would allow the defendant to plead guilty without the death penalty.

Galligan declined to discuss whether he had discussed any plea bargains with prosecutors or whether he is contemplating an insanity defense on Hasan’s behalf.  Col. Morgan also reviewed an Army mental health panel’s evaluation of Hasan’s mental condition before recommending to seek the death penalty.   The evaluation described Hasan’s mental condition at the time of the Fort Hood shootings in 2009.   It also gave an opinion whether Hasan is now competent to stand trial.  Galligan would not discuss that evaluation, but he did say the report would not prevent the Army from proceeding with a court-martial.  That suggests the report found Hasan sane at the time of the events in 2009 and is now competent to stand trial.

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.