You're Wrong About - Shaken Baby Syndrome

Episode Date: October 8, 2018

Mike tells Sarah how an over-simplified diagnosis, over-confident doctors and over-zealous prosecutors combined to get thousands of innocent parents thrown in prison. Digressions include food poisoning, Sherlock Holmes and 1950s medical ethics. Mike wanted to mention Louise Woodward but he forgot. Continue reading →Support us:Subscribe on PatreonDonate on PaypalBuy cute merchWhere to find us: Sarah's other show, Why Are Dads Mike's other show, Maintenance PhaseSupport the show

Being born is actually really traumatic. I did not know this. You know, it looks traumatic. Welcome to You're Wrong About, the show where we probably ruin a mid-90s episode of Law & Order for you. Or like a season, I think that's a good start. Or just, you know, the whole premise of the show. I came across a alternate tagline in my reading this week. I was going to say, welcome to You're Wrong About.

More is missed by not looking than not knowing. Which is a nice sounding line. I'm not sure I know exactly what it means, but it's quite cute. What was that from, though? That's great. It's from the man who invented shaken baby syndrome and later denounced it. Oh, okay. This is going to be one of those things where the person who discovered it denounces it. That's one of my favorite subgenres of Deep Bunkery.

It's like a nice twist. Yeah, I'm really excited about this one because shaken baby syndrome is something that I've heard of. And I know that it's something that has led to a lot of wrongful convictions. Yes. But I really don't know any of the details of it. And I feel like having you go out and research it and then come back and tell me about it this week, it feels like sending out a study bot or something. I can be your jeevs. I can be jeevs today.

But I feel like I imagine this involves a lot of interesting legal and scientific wrinkles. And I'm really happy that you are going to explain it to me because I don't know that I would be able to figure it out by myself. Well, so I want to start with three real cases that actually happened. So the first is in the early 1970s. There's a woman and her baby is coughing and it sort of keeps coughing and almost sounds like it's choking on something. And so she lifts it up and she shakes it a little bit to sort of help it with its choking. And then a couple hours later, the baby starts not doing great, starts choking a little bit more. It starts vomiting. It starts sleeping.

She rushes to the hospital. The baby is diagnosed with shaken baby syndrome. But before they called it that, the second case is from 1998. There's a baby that is crawling across the floor. Its parents look away for a second. All of a sudden its head sort of flops downward and it bangs its forehead on the floor. And again, it starts after a couple hours. It starts vomiting.

It starts not looking too great. They take it to the hospital. The baby is diagnosed with shaken baby syndrome. The third case is from 2005. I got it from actually from your favorite podcast, Coroner Talk. Oh, I love Coroner Talk. Yes, which is an extremely like dark and disturbing podcast, but is also very interesting. One of the disgusting things they talk about is a man who's looking after his girlfriend's baby.

She goes away for a little while. He gets frustrated with the baby. He violently shakes the baby and he throws it six feet across the room. And then the baby is unconscious in a coma. He goes into the hospital. The baby eventually dies. The cops come. He shows them to the house, to the room where he did this.

And there's a mark on the wall where he's throwing the baby. And then they kind of book him into prison. It's Canada, so he serves a life sentence, but not the death penalty. And so I think what's really interesting in these three cases and what really struck me about them is that they're actually very different. So all three of these babies are diagnosed with shaken baby syndrome. But one of them is a baby that's coughing and the mother shakes it a little bit sort of to help it like in a loving, non abusive act. In the second case, the baby that bunks its head, it's an accident, right? And the parents weren't there.

The parents were not malicious. It just sort of happened. And then the third case is extremely violent, extremely vicious behavior that everyone would classify as abusive. And so you've got a huge range of behavior, both deliberate and accidental and severe and mild that are all being put into this exact same diagnosis. And so this is sort of the central you're wrong about with shaken baby syndrome that we're going to come across again and again is the vast range of symptoms of behaviors of people of aftermath that are all going to get the same diagnosis. And then the minute you get that diagnosis, the same thing happens. Everybody goes to jail. Huh.

Okay. So that leads me to a question about the formulation of the diagnosis itself, which is if you have a baby come in to be autopsied and you diagnose it with shaken baby syndrome. Does that mean that you're also making a statement about the behavior of the parents? I mean, this is one of the biggest challenges with shaken baby syndrome is that first of all, the name implies a baby has been shaken. It doesn't imply that there's an accident that takes place. The second thing is that throughout the years, it gets renamed as abusive head trauma, A-H-T, which again, abusive head trauma. So right there in the diagnosis. Right.

It implies intent. What's really interesting about the history of shaken baby syndrome is that it really comes out of the history of child abuse. So as we've talked about with the satanic panic, child abuse was kind of discovered. There was a really long period of time in history where people spanked their kids or whatever and we knew that there were maybe some alcoholics or whatever who knocked their kids around. But this idea that people were severely harming their children wasn't seen as plausible. And the idea that even minor abusive children had big psychological effects on them also wasn't really taken seriously. And so a lot of the literature on shaken baby syndrome actually refers back to this 1962 article that's called the battered child syndrome where it's basically, and I've read it. I found a PDF of it online.

It's basically like, hey, you guys, when you treat children badly, they have symptoms of it. And it lists off things like when children come into the ER with broken bones, you should consider abuse as one of the causes. Wow. Before that, doctors really weren't taking it seriously. And so I think in the same way that this explains so many other things that we've talked about on the show, there's this huge pendulum swing where we learn, oh my God, children are being abused. Then it becomes, oh my God, we have to protect the children. And one of the things that happens almost immediately is that we find ourselves believing completely insane things because we feel like we have to make up for all of these years when we weren't taking child abuse seriously. Yeah.

And so the origins of actual shaken baby itself come first from these super grim experiments where they basically didn't know what whiplash was until the 1950s and 60s because nothing had ever traveled that fast. God, where is this going? Did they just take a bunch of babies and throw them in a heap in the back of a Chrysler and slam them into walls? No, it's worse. In the 1960s, they took 50 Reese's monkeys and they basically made a car for them and they crashed the car and just were like, what happened? It's grim, dude. Mid-century America was a terrible time and place to be a Reese's monkey. Yeah.

I mean, I think medical ethics back then were basically, let's do something to monkeys and see what happens and that was about it. And so there's all these studies in the 1950s and 60s where they do this over and over again to Reese's monkeys and they learn basically that there's this thing called whiplash because it used to be a head injury was by nature something that happened to the outside of your head, right? You run into a tree on your bicycle or something. Oh, we're bad noticers, aren't we, as a species? Yes. We didn't actually know before then that the brain sort of slides around in the skull. Well, we didn't know that this idea that you can have a severe head injury but no bruises was something that was created by cars and seatbelts. And so before then, we just didn't really know what whiplash was or that you could get brain damage without any external injuries.

So this guy, Norman Gutkelch, reads all this research on monkeys and sort of is like, well, I wonder if the same thing happens in children. He's a pediatric neurosurgeon in whole Britain. And so for years, he goes around his hospital and he collects cases of babies that come in with brain damage. Interesting. And he's like, well, what happened? Were they dropped? Were they shaken around? What did their parents do with them?

So he eventually compiles 23 interviews, 23 babies, and he talks to the parents about, OK, what happened with them? I found his papers. The paper is only two pages long. It's this very quick thing that basically says, hey, this happens in babies too. You can have brain damage without any external injuries. That's essentially his entire premise of the article and the finding that sparks the entire shaken baby syndrome craze. Oh, all he basically says in all these cases, he just kind of tells stories one by one. And his study is actually where that case of the mother whose child was coughing and shook him a little bit to try to keep him from choking.

That's where that comes from. He also has another case where a woman is watching her child. He's sleeping like on a table and she looks away for a second. And the child sort of rolls over and it's about to roll off the table. And the mom's like, ah, and grabs its arm jerks the baby back onto the table. And then eventually it turns out this baby has quote unquote shaken baby syndrome. But of course, this term hasn't been coined yet. And basically, you know, he's not trying to panic anybody.

He's just kind of saying, you know, this is a thing you can shake a child and cause injuries without external injuries. And in some cases, you might want to look at the caretakers. This is in the conclusion of the article. One must keep in mind the possibility of assault in considering any case of infantile subdural hematoma, even when there are only trivial bruises or indeed no marks of injury at all and inquire, however, guardedly or tactfully, whether perhaps the baby's head could have been shaken. So he's not trying to sort of whip up a panic here. No, he's not an American.

Exactly. He's just like very calmly. He's like, well, this is a possibility. Let's, you know, everybody keep your knickers on. He doesn't know that across the pond, prosecutors will be sending the wind sniffing their nostrils flaring as they think this is something I can be tough on crime with. Yes. Basically, he identifies this thing that does not have a name yet.

And is it essentially baby whiplash? It's essentially baby whiplash. It has three components. So subdural hematoma, retinal hemorrhage and encephalopathy. So I don't understand what any of those words mean. So it's basically bleeding a little bit of bleeding on the brain. And then your retina gets kind of detached from shaking, bleeding behind the retina. And then your brain is actually swollen.

Sometimes you can see that in people's heads and sometimes you can't. And so do you die from pressure on the brain? Well, this is the thing is you don't necessarily die. Only about 25% of babies with shaken babies. See, I was always, I always believed growing up that shaken baby syndrome was 100% fatality rate thing. Interestingly, just attached to that, if we're going to talk about nineties fear, which I think this is part of. I also believe that if you slept with someone who had AIDS, you would 100% contract AIDS.

Well, I mean, shaken baby syndrome kind of follows that in that not every single baby dies. Most of them have severe brain damage later on. So in some of the future cases that come up after there's, you know, a conviction, somebody goes to jail, these parents will talk about, you know, my kid is far behind his brother who's three years younger than him. You know, he's not reading. These are real developmental disabilities. And these are real things that show up on a CT scan.

So the actual condition itself that eventually comes to be called shaken baby syndrome, that's a real thing. It's just the myth is more around who did it and how it happens. Yeah, because I feel as if I have also always associated it with abusive intent. Yes, that's what it becomes. But what's really weird, though, in 1971, this random two page article comes out and then people are like, huh, and then everybody else starts doing all these studies. And then what follows is essentially a field of shaken baby syndrome researchers.

The term is coined in 1974 by an American named John Caffey, who writes another couple articles and sort of tries to understand the mechanism. And, you know, is it rotational or is it back and forth and how does it work? He says in his article in 1974 that he's concerned that parents and caretakers do not realize the dangers of shaking. And he recommends a nationwide education campaign. So again, he's not whipping up tough on crime stuff. He's just like, hey, guys, this is a thing.

Doctors, you know, if a baby comes in with this stuff, think about it. But, you know, consider other options too. And, you know, if it's accidental and like tell the parents maybe not to do it in the first place. Yeah. And maybe, you know, maybe they don't know or, you know, maybe they're like the woman who shakes her baby to get it to stop coughing. It's like, well, if your baby won't cough, try, you know, patting it on the back or something like he's doing. He's operating in good faith. Yeah.

But then what's really interesting to me, and this is this strange, slow thing is that over the next 20 years, the medical literature has three modifications that it makes to this original diagnosis because the original two articles in the 70s are very moderate. And then slowly but surely it adds these three modifications without really any basis to them. So the first modification is that whenever a baby has these symptoms, it has to be shaken baby syndrome. So it's not just that shaking a baby can cause these symptoms. It's that every baby with these symptoms was shaken, which is when you think about it a huge conceptual shift. Yeah, it's acting as if there aren't any potential other causes that doctors just haven't figured out yet,

which if you maybe accept the humility that would be reasonable if you take in the fact that you didn't notice that shaking babies was bad for them until pretty recently. Right. And it's one of those things that that huge conceptual shift happens without anybody ever really arguing for it or anybody really saying we should all make this diagnosis every time a baby comes in. That never really happens. It's just sort of like we've learned about this possibility and then it becomes an imperative really quickly. And so it's basically like we know that teenagers can sprain their ankles skateboarding and then eventually we shift to every single

teenager that sprains their ankle must have been skateboarding. And no matter how strong the evidence is that they were jogging or they fell down some stairs, we're like, no, you were skateboarding. And that's essentially what happens with shaken babies that eventually it becomes one or two of these symptoms, not even all three, but it has to be shaken baby syndrome. There's nothing else that would ever explain it. I can also see that connecting in some way, not necessarily consciously on anyone's part with the general difficulty of prosecuting child abuse and how with a lot of child physical abuse, you don't have any physical evidence.

It's based on the testimony of a child, potentially a very young one that can be tampered with really easily or very easily and persuasively argued unreliably. So I feel like the idea of any kind of diagnosis that offers the potential for legal tidiness seems like it would be something that people would really attach to. And that legal tidiness is really I think what people are going after here is that basically once that term gets attached, it's almost impossible to refute that term no matter how good the evidence is against it. And so the second modification that gets made, and this one is maybe even worse, is shaken baby syndrome happens immediately. So if a baby is shaken within minutes, it will be vomiting and unresponsive and can't follow a pen, you know,

when you hold the pen and move it back and forth and for the baby's eyes and it goes unconscious immediately. What this does is this idea that there's no such thing as a lucid interval, a period between having the accident being shaken and having the symptoms of shaken baby syndrome means that by definition, the last person who was with the baby is at fault. Oh, that's a very dangerous game of roulette. Exactly. And so again, you get this huge certainty around this idea and you don't get this thing like, you know, when you get food poisoning, everyone's like, oh, it's the fish I had at lunch. But we know with food poisoning that it's anywhere from, I think it's like three to 72 hours. So you don't really know what the food was that made you sick.

Yeah. What we do with shaken baby syndrome is we're like, no, no, this happens in minutes. It has to be whoever was with the baby that did this to them. I find worrisome any kind of actual or alleged scientific finding that allows a prosecutor to like say that thing while pointing at someone. Do you know what I mean? Anything that boils down that nicely where it's like, and she was the last person seen with baby Jessica. Yeah. Like anything that you can sort of rhythmically say while pointing at someone that's often too simple for actual scientific evidence to support.

It feels like reality is always, if not always, and at least most of the time way more complicated and results simultaneously suggesting contradictory things than we would like. Well, that's the thing. And so it just becomes this moral imperative by doctors to report every time they see this to child protective services and whoever was with the baby last. It becomes this thing where because of mandatory reporting requirements. And when does that start happening? This is very quick. I mean, as far as shaken baby syndrome that happens in 2001 that the American Academy of Pediatrics puts out a document that says you must you must report. And then it even has because this is still online or the old version of it is online.

It basically says, you know, there's mandatory reporting and you could be held liable if you do not report. Oh, okay. So everybody kind of airs on the side of, oh, shit, I'd better tell somebody about this. Right. The third modification, these are all really profound and nobody sort of comments on them until like decades later. But the other modification that happens is that to cause shaken baby syndrome, the baby has to be shaken extremely violently. So this is another huge modification from the early studies. Yeah.

They've realized that to detach a retina, you have to shake a baby extremely violent. And they actually do these tests later on where they put like they make a doll like a realistic doll and they actually, you know, shake it like a paint can to see like how much shaking you have to do to detach the baby, you know, to cause these three symptoms. And what they learn is that you have to shake it as violently basically as a car crash. Some of the cops compare this to a baby falling 15 feet. This completely changes the original intent of the shaken baby syndrome diagnosis where in the 1970s, it was like, well, this can be done accidentally. And this can be done, you know, as a caregiver, someone with love, right, of doing it to keep them from falling off a table or something. But then this slowly morphs into, no, you're shaking them so hard that you're trying to kill them. Okay.

So it becomes something where you essentially have to want to harm the baby in order to accomplish it. Yes. And so in one of the best articles I found about this was a 2011 law review article by this woman named Deborah Turkheimer, who was one of the first legal people because no one in the legal profession gave a shit about shaken baby syndrome until like 50 years later. And she was one of the first people in law to be like, guys, we have to actually be talking to the medicine people about this. And so she says, shaken baby syndrome is a convenient diagnosis since it provides prosecutors with a method of homicide, shaking, a likely suspect, the last person alone with the child and intent. All elements of the charge are proven by the claims of science. Testimony regarding the force necessary to cause the infant's injuries establishes the mechanism of death as well as the perpetrator's criminal state of mind. In essence, shaken baby syndrome is a medical diagnosis of murder.

And then what a great person to prosecute, someone who tried to kill a baby. I mean, that's... Exactly. That's a nice cartoonish evil that you can easily explain to a jury. Yes. And so it becomes really easy to funnel people into the criminal justice system with this because we know it was you. We know why you were doing it and we know how you did it. So what's really interesting is that nearly every medical institution just swallows this. Really?

There's this technical report from the American Academy of Pediatrics. The Committee of Child Abuse and Neglect of the American Academy of Pediatrics. The AAP paper recommended a presumption of child abuse whenever a child younger than one year suffers an intracranial injury. So essentially, every time there isn't a car crash or some other reason why a baby would have these symptoms, it's the parents. Okay. I say this as a complete layperson who knows nothing about anything, but I just... I really feel like it's not a great idea to base law on science because law is really hard to change. And science is something where the most frequent finding is, oh, fuck, wait, we were wrong about that thing we said before. Totally. This whole thing gets into a much bigger structural issue that the legal system and the medical system have no institutional way to speak to each other.

And so what very quickly forms around shaken baby syndrome is these experts, quote-unquote experts, that are professional medical testifiers. And they go around and they go trial to trial, and they give exactly the same testimony at every trial. Eventually, we've got 200 prosecutions a year of shaken baby syndrome, and the same dudes show up at like all of them. And they'll show up and they'll say, we know it was her. We know it was severe. We know she was trying to kill this baby in the absence of any other evidence. And so one of the law review articles I found, it quotes some of the questions that the prosecuting attorneys... You know, prosecuting attorneys have to ask yes or no questions to these medical experts. And so one of the questions is, given the injuries that you've described with this case doctor,

have you any doubt they were inflicted with intent to kill or with total disregard of that possibility? And the experts answer yes. So they're answering yes to these ideas that they have no... They've never met these people. They have no way of knowing if this is what they're actually trying to do. And yet they're answering with confidence, oh yes, she was trying to kill this baby. I find it really troubling to think about taking seriously the expert testimony of anyone who professes to have no doubt about anything.

I mean, come on. And the bigger structural thing here, and I think that this is just ripe to get this wrong over and over again, is that basically each one of these scientific debates is left up to jurors. And so what happens with almost every trial is that the prosecution shows up with five or six doctors that say, yes, this is how shaken baby syndrome works. Yes, it was the nanny. Yes, she tried to kill the baby. And then the defense has their own five experts to say, no, it wasn't the nanny.

No, there's many other things that could cause this. No, it doesn't matter. And so then you're just leaving these crucial scientific debates up to 12 people who presumably have no scientific training and it's essentially up to them to weigh all this evidence and make a determination. There's no systemic way or systematic way for the medical system to just say, hey, you're going to lose your license if you keep giving this testimony or to change these recommendations to say, look, nobody should be testifying to these facts anymore. The expert witness racket seems like it's really lucrative, really easy to do well in if you're terrible at everything. Yes.

I'm actually curious about how hard it would be for me to somehow con my way. Like, I wonder if, given a year, I could con my way into being an expert witness in like graphology or hypnotherapy. You know, some somewhat real, perhaps slightly also made up thing in a criminal trial. Like, I think I could do it. I mean, according to the people that get courted on shaken baby syndrome, you can be an expert on shaken baby syndrome in about 15 minutes. I mean, some of the people that end up on the stand in these cases are dire. Tell me about the shaken baby experts. Well, there's one who's really famous.

This guy named Stephen Hain, Mississippi medical examiner, who was never given a license, first of all, because he he failed the test. When that information came out, he says, no, I walked out on the test because I was so offended at how simple the questions were. Which is a pretty good way of saying why you don't have a license to do the thing that you're doing. And so his thing was he was performing between 1200 and 1800 autopsies a year, which the National Association of Medical Examiner says the maximum should be 250 a year. So he's doing five times more. I feel like if you're doing 1800 autopsies a year, you're not really taking time for self care. And that is the least of your concerns.

Yes, he also at this time has another job. So he's doing this at night. What kinds of autopsies? I mean, this is actually a really good case to start with because there's a 2002 case where this poor guy named Jeffrey Havard was convicted in Mississippi of it was his girlfriend's baby and she vomited on herself. And so he gave her a bath and then he was taking her out of the bath. She slipped out of his hands. Her head hit the toilet and she went unconscious.

He takes her to the hospital. Then the cops show up at the hospital. He originally lies to the cops. He's like, oh, no, I never dropped her because, you know, you kind of would, you know, it's understandable that he would do that. That seems like the most natural response to me is to just like freak out and lie a little bit because the cops are so terrifying. Totally. And so he, you know, this then becomes evidence of his criminal intent and his criminal mastermind in this and whatever. And so eventually it's always the masterminds that can't afford a good lawyer.

Isn't that interesting? Why are the masterminds so poor? But because of this medical examiner, basically they have a problem with this case because this guy, they've got the shaking baby syndrome diagnosis, which requires, you know, violent shaking. But there's this guy who's like a nice guy. He has no history of anything. And yet they've got these symptoms and they need to have some sort of explanation for it. So enter this Stephen Hain medical examiner guy who says that the baby was penetrated in the rectum by an object.

So he starts talking about this stuff that we've talked about before with satanic panic of the anal dilation. Oh, the anal winking. That you can tell from the anal winking that this baby has been raped, essentially. The very anal winking data that was debunked in a later study, Michael, that showed that Anas's wink regardless of previous penetration. Yes. And a lot of people even at the time are pointing out that an anus, like when you die, like your anus dilates. Like that's a normal thing that happens to people who die. So the idea that this random dude who doesn't have a license is saying, oh, he must have raped an infant because of this anal dilation is just completely insane.

There's an article that gets written about this in 2007 that basically does the oh, really defense of this that we've talked about with Anita Hill. So it's worth considering the plausibility of the state's theory about the crime. So on the night the baby died, Havard gave Rebecca Britt his girlfriend $20 to run to the grocery store. He did this so he could rape for six month old daughter. According to the state, in the time it took Britt to buy some burrito supplies, Havard anally raped the infant, orally raped her, shook her violently enough to cause injuries that would later but not immediately kill her, then bathed and cleaned her, dressed her, tucked her into bed as if nothing had happened. The bath also would have had to be thorough. None of Havard's hair, skin cells, or semen was found on or inside the girl.

There is no evidence of this. And this entire scenario makes no sense because if you were going to do all this, why would you do this in the whatever 15 minutes that your girlfriend is running to the store? Right. And it doesn't make any sense if you were premeditating this in any way. No. So the only evidence is the testimony of this medical examiner basically. And the guy goes to jail. He's still in jail.

He's on death row now. You know, I kind of blame Sherlock Holmes for this because isn't one of the Sherlock Holmes-isms, you know, if you rule out the impossible, the improbable becomes the thing, not those exact words. The inherent argument of that phrase is if you have hard facts, if you have hard evidence, then human behavior has to fit around that. And even if it involves humans behaving in ways that make absolutely no sense, then, you know, it's what the medical facts support. And we love having scientific evidence for that reason because it allows us to be like, well, these decisions make no sense. I mean, one of the other things I think about a lot is that human behavior often makes less sense than narrative.

You know, we don't live narratively and we have a hard time explaining our decisions even to ourselves. You know, if you're defending someone's actions at trial, you can have an innocent person who still behaved weirdly and have a hard time being like, look, my client behaved weirdly. Sometimes people do that. I know it's hard to accept, but even you have been known to do it probably. Well, that's what happens with this poor Havard guy is that the fact that he lied to the cops originally is then seen as he's such a monster. What kind of a monster would lie about lied to a bunch of cops about dropping their girlfriend's baby? His case takes, the entire case takes two days.

The prosecutor calls 16 witnesses. The defense only calls one witness and it's like some random dude who's a nurse at the hospital. So they call no character witnesses. God. I mean, that's the thing is that if he had a good lawyer, this thing never would have stood up. How many people in America do you think have good lawyers? Like seven. Yeah.

One kind of myth to bust about this is that 65% of the people convicted of shaken baby syndrome are men. Really? I'm surprised by that. I'm surprised by that too. And a lot of it is non-relatives of the babies. It's easier for us to believe that you would mistreat, you know, your girlfriend's baby. It is not getting easier trying to get men to feel more comfortable holding babies. I'll tell you.

Exactly. And so this does happen to a lot of caregiving dudes. It also happens to a lot of nannies. Like when you look at the list of people that are convicted of shaken baby syndrome, it's a lot of like, like Latin American nannies, dude. It's really depressing. Like there's one in New York, Trudy Munoz-Rueda, who doesn't speak English. And so she basically is taking care of this rich white people, upper East side type couple.

She's taking care of their kids. She has three kids of her own and she's, she lifts up their baby. His name is Noah. She's patting him on the back. She's doing like normal caregiver stuff. The baby all of a sudden goes unconscious, starts vomiting. You know, all these symptoms that you always hear, she dials 911. She's doing CPR.

She's losing it. As soon as the cops come, they're like, oh, let's give them a CT scan. They find the triad, all these things. And then immediately put her into the system. And so there's this thing where, you know, she's alleged to have confessed, but the interpreter that they got for her, misinterpreted like the verb that she used. Oh my God. There's all this kind of ridiculous stuff.

And then, you know, when she testifies, they make her testify in English and she's trying, she doesn't understand the prosecutor's questions and she can't express herself all that well. And so one of the weird things, one of the sad things about shaken baby syndrome is that just like in conspiracy theories and multi-personalities, sort of the lack of evidence becomes evidence, right? If you don't have any kind of run-up or smaller abusive acts that lead up to this extremely violent car crash abusive act, that is then evidence of how two-faced you are, right?

That you've been living this lie and there's no sense that you're pretending to be this nice. And then it's like, well, we can't possibly release you on bail because if you're capable of acting completely harmless in one moment and then shaking the baby to death in the next, how can we know that you won't go off and be your mastermind, two-faced, criminal, genius, violent baby killer thing again? Yeah. And eventually, I mean, one of the women that goes to jail for 12 years, I think, is a grandmother that she's sleeping over at her daughter's house.

She puts her grandson on her as she's lying on the couch and she falls asleep. And then the child somehow kind of rolls over and falls off of her from the couch onto a carpeted floor. And then eventually he starts having these symptoms and then they go in and then the doctors are basically about to let them go as kind of like, you know, this is just like a super sad thing that happened. This is a grandmother who's lived her whole life and she's raised kids and she's totally fine. And then all of a sudden, the CPS gets there and CPS is like, no, we think it's shaking baby syndrome and the grandmother ends up serving 12 years.

And again, there's no like this woman does not have a temper. This woman does not have any sign that she's like some complete psychopath. But one thing that the thing that does her in when she's talking to CPS, they ask her, you know, did you ever shake this baby? And this grandmother says, well, when he was limp, when he didn't respond, you know, he's unconscious. I shook him a little bit to try to wake him up. And Child Protective Services is like, bam, shaking baby.

The more I hear it to the more I think about how shake is a very broad word. Yes, like if you fell asleep on the couch, I would shake you awake by like moving your shoulder a little bit. Right. I wouldn't, you know, give you whiplash. When you just think about a grandmother who's like not a monster, you can just think of how hard is she shaking that baby guys? Like really?

Yeah. When these illogical things bubble up, it feels like they come for, you know, they express something that's happening or not happening elsewhere. And it feels like, you know, child abuse is something that our system is so obviously broken when it comes to addressing the foster care system in most places in America is completely terrible. It's something that there's generally no money for and the legal remedies for it are slow or they are disproportionately putative with poor

parents and parents of color. We're also very bad. I think as Americans at thinking about systemic problems and accepting that a problem is systemic and that we can actually work on it and work on that system, we would just rather not see systemic problems and just feel like we see individual problems that we can solve in one fell swoop. And it feels like, you know, if we're enthusiastically prosecuting cases, you know, essentially prosecuting because we can.

Like we have this medical diagnosis that serves as really good evidence. We're like, well, there's no motive and the story isn't really very persuasive. But like we have evidence in this one. We can actually prosecute this one. We can do something about this instance. It's like one culprit who you can actually put in prison. Like it feels like people would feel the satisfaction of doing all the things in these cases that they generally can't do.

Well, we were talking the other day about sort of the clusters that are forming the more episodes of the show that we do. And, you know, this kind of cluster of crack babies and multiple personality disorder and repressed memories and satanic panic. And I think very much this one fall into this cluster of won't someone think of the children? Yeah. Once you get into the system of child protective services and doctors

thinking that they have to crusade to get this right finally to sort of counteract all the ways they were getting it wrong for so long before that there's really no stopping that. So one of the most troubling statistics I came across was that 88% of people accused of child abuse are convicted. Wow. Something just turns off in our brains. Even the accusation.

We're like, no, no, to save the children. We have to go all the way with this. There was a really good quote on this. Oh, yeah. So this judge gives a talk on this in 1990. So this shows you how early the alarms were being raised about this. This judge says, I don't think you can get a fair child abuse trial before a jury anywhere in this country.

I really don't. I don't care how sophisticated or smart jurors are. When they hear a child has been abused, a piece of their mind closes up and this goes for the judge, the juror, and all of us. And I think that's really what's going on here is that everybody thinks that it's sort of their job to save these children. And another thing that comes out of this, it depends on what kind of doctor sees the child.

If it's a pediatrician, they will report you to child protective services and the minute child protective services gets there, they have kind of abuse on the brain. And so they will always consider putting it into that frame. Whereas if any like a GP or a neurobiologist, anybody brainwise, because they understand all the other things that can cause these symptoms, they're like, eh, probably not. A lot of these cases really just come down to the wrong type of doctor

seeing you when you get to the hospital. Well, and then what are the other potential causes of these symptoms that some doctors can potentially come in and diagnose? Well, so the debunking of all of this happens like slowly and glacially over the course of like 20 years. Right. I didn't know this before I started working on this was that there's like, there's like 40 things that can cause symptoms that look like

shaken baby syndrome. First of all, subdural hematomas, like a little bit of blood on the brain. That happens in 46% of babies. And most it just clears up. Like it's one of those things that happens like being born is actually really traumatic. I did not know this. You know, it looks traumatic.

Yeah, it looks really unpleasant for everybody involved. Lots of babies actually get injured during birth and don't show signs of it or they're bleeding, you know, very slightly in their brains for a really long time, but it kind of builds up and it's not until three or five months later that anything actually happens to them. So a lot of these cases are actually old injuries that come back. This article in 2006 has a list of things that can cause exactly these three brain symptoms that get diagnosed as a shaken baby syndrome, birth trauma,

congenital malformation, genetic conditions, metabolic disorders, coagulation disorders, infectious disease, vasculitis, autoimmune conditions, oncology, toxins and poisons, nutritional deficiencies, dehydration. I mean, there's all kinds of things. There's something called infant stroke. Oh, basically an infection can cause a stroke like the same symptoms that you see in adults when they have a stroke. Being a baby is so scary.

Being a baby sucks, dude. It's also like a syndrome that seems very cherry-picked based on how easy it is to diagnose. It's like, and who causes the trauma? Why the person who was with the baby in the five to 10 minutes before they became symptomatic, of course. Like if you were inventing a disease, the kind that you wished existed as a doctor, you'd be like something where diagnosing it is incredibly simple

and ignoring the potential, the idea that you're actually seeing the results of something that happened months ago, which makes it so messy and hard to blame it on anyone even. And another thing, I mean, this is another modification of the shaken baby syndrome diagnosis that falls away. This idea that there's no lucid interval. The idea that once the shaking happens, you are immediately showing symptoms that there's this guy called John Plunkett who starts researching childhood

injuries of like young, you know, two to three year old kids, but not babies. And he has videotapes of playground injuries where kids fall two or three feet. They look fine. They go a couple more days and then they get these insane brain damage symptoms. Oh, God. A, it could be caused by all kinds of things. B, it might have happened 10 minutes ago, but it might have happened a week ago or three months ago.

And so it's not fair to say like the nanny who was with him when he went unconscious. It could have been his mom that was with him yesterday or his dad that was with him two days ago. I mean, you really have no way of knowing. It's like literally the same as prosecuting criminal enterprise. You just whoever happens to be holding the bag, whoever is holding the baby, you know, it's like, listen, we got to take somebody down for so many of these scenarios. I feel like we come back to this idea that if something terrible happens, someone

has to pay that if a baby dies, it's like babies aren't supposed to die. That's outside the natural order. Someone has to go to prison and it's like, you know, babies do die in an ideal world. They wouldn't and parents wouldn't have to experience that, but it's not something that like an evil element had to appear in the family for that to happen. Like sometimes tragedy just happens. This is why the debate over shaken baby syndrome within medicine is so acrimonious

is because the minute anybody stands up and says, well, look, it could be an infant stroke and not the evil nanny who doesn't speak English and doesn't have a lawyer. People are like, oh, well, you don't care about the children. Certainly as a child growing up in the 90s, I had really great quality of life because every morning I woke up and I could feel the radiant energy of all of the people of color imprisoned on my behalf somehow. Yeah, you felt so cared in legislation that was supposed to benefit my life in a way that no one ever explained and instead just traumatized the entire generation.

Yes. And one of the things I cannot get over is that as of 2001, there had never been a confirmed case of shaken baby syndrome in that there's never been like an incident on video that led to these symptoms or an incident that was witnessed. Really? Yes. Every single case was based on MRIs and future confessions. And so one of the things that they mentioned in all the studies is that there's this weird

circular logic where it's like, okay, we've got a confession of somebody who has shaken their baby and the baby has these things in their MRI scan. So we know the child abuse causes these things in the MRI, but then legal scholars start pointing out they're like, look, first of all, there's hella false confessions. Atch words. Yes. And people also generally, as we have explored in the past, are very able of confessing to crimes that they did not commit and then even coming to believe for the rest of their lives

that they committed the crime that they described in a false confession. Right. I mean, that's kind of what happens with the grandmother, right? Is there like, oh, you shook the baby to wake him. And then they basically tell her, you've shaken this baby basically to death, even though the baby was already comatose by the time she was shaking him, that they convince her and this happens in a lot of the interrogations is that the doctors and the cops are basically like, well, it's possible to kill a baby by shaking it.

Have you ever shaken this baby? And so again, like you said, shake is a word with many definitions. And so when you ask somebody, have you ever shaken your baby? Well, yeah. Right? Yeah. Shaking a baby is one of the, and even like the distinction between rocking a baby and shaking it.

It's hard to get a onesie on a baby without kind of jostling them around, you know? They're very tiny. Yeah. God, I'm getting nervous just thinking about this. Oh, I know. It's horrifying. I know. Another thing too, I mean, there's these cases of people that are like staring down 40 years

in prison for shaking their kids, or you can take a plea deal and do six months. And so a lot of people are just like, I have three other kids. Right. I can't do this. So I'm just going to plea out to this. And then in the medical literature, it becomes, well, this woman confessed to shaking her baby and her baby has like a detached retina. So it must be child abuse.

And so these two things get conflated. Oh, it's the two fields with different criteria for truth, blues. Yeah. I read this Swedish study because they're like determining like, should the Swedish government take this seriously? And they're trying to determine they're like, there's a lot of circularity in the research, but we'll only use cases where there was a confession. And it's like, oh, sweetie, that might be how it works in Sweden, but it's not how it works

here, sweetie. Confessions don't mean confessions. Oh. Isn't that adorable? They're like, I'm going to try and do an accent. We will assume that if people, no, I can't do it. We will assume that if people have confessed to crimes, they must, you know, have at least probably have actually committed them.

It's like this and then no, that's not how we do it over here. Another thing that's really sad is that a lot of these babies are having other medical problems way before the shaken baby syndrome. So there's this poor kid, Drayton Witt, who's an 18 year old who gets convicted of shaking his four year old son to death. The baby was born with the umbilical cord around its neck. It had a fever and it was vomiting for its first three days of life. And he was in and out of the hospital dozens of times in the first four months of this

kid's life and it wasn't, its pupils weren't dilating and stuff. So there's all kinds of brain damage. And then the kid dies when he's in Drayton's care and then everyone's like, oh, it must be this monster. Why couldn't you care for this kid? This kid was troubled anyway. But of course the experts are like, these are all signs that the baby had something wrong with him anyway and that no matter who was there, the baby probably would have died just

because the baby was really troubled kid from day one. And so one of the things that they know in his case file is that the social worker from Child Protective Services, they talked to him at 4am like the night that his baby has just died. And they know in their notes, he has no specific explanation for the baby's head trauma. You see this a lot in the accounts. Once people are accused of shaking baby syndrome and they're like, well, that I didn't shake him.

They're like, well, then what caused the trauma? Then what caused it? Why does he have a nose bleed? If the parents that then can't answer that are then seen as somehow suspicious, right? I'm like, well, they can't account for the trauma, but like weird things happen to babies. Yeah. And parents can't be expected to understand why their kids get sick. Yeah.

And this is also an 18-year-old kid, right? So it's like, I'm 36 and I learned about infant strokes like a week ago. How would this kid be like, well, actually, the subdural hematoma is present 46%. This isn't something that people would ever be qualified to discuss. It's also something where if he had said, oh, well, I think that the cause of the trauma was X. And then they were like, no, that's probably not it or something. They could just as easily see that as damning. This is my favorite one of these cases that find babies that kind of already have problems

before the shaken baby diagnosis. There's even a study of this. So a study of 150 babies that sort of were diagnosed shaken babies syndrome later on. It mentions in the abstract, a disproportionate number of abuse cases had a history of perinatal illness such as prematurity, obstructed labor, or hospitalization after birth. The authors speculated this may have led to poor parental bonding. No! Come on!

So rather than explaining the fucking stroke these kids are having, he's behind you. It explains that they have these monster parents that don't give a shit. So it's like they're concluding exactly the wrong thing. And so the same study concludes 64% of subdural hematomas must be abuse. It's also, it's very hard because anytime you're accepting someone's research findings or their distillation of that, you're making an implicit agreement with them and saying, I trust you to notice things. We see such different things in the same information.

It's amazing that we all act as if, you know, it's like, I'm a person, you're a person, you're going to interpret stuff basically the same way. Right? Science. That's what the medical industry starts to realize. And so starting in the early 2000s, this guy who invented the diagnosis in 1971. The British guy? Yeah, Norman Good-Kelch kind of starts giving talks and starts writing articles where he's

saying like, look, guys, this was not what I wanted. And he kind of reminds people, he's like, guys, look at my paper. Like we've got parents gently shaking their infants to try to get them to stop coughing. We're not talking about car crash level impact here. And he's actually saying, if you find symptoms associated with this thing that I have not yet started calling shaking baby syndrome, that could come from a parent trying to do their loving due diligence. And it's not something that you should necessarily prosecute at all, sure, yo.

Yeah. And so, I mean, the kind of the key quote from his big article that he publishes is often getting it right simply means saying clearly and unequivocally, we don't know. And this is really the central failure of the medical profession is that they didn't actually know that much about infant brain damage, right? They didn't know all the things that could cause it. And there's all these medical debates in the 90s and early 2000s about, no, we know it's abuse.

And then there's more medical findings that are like, it's actually strokes. We didn't notice it until roughly 1970, but now we're really good at noticing it and always knowing exactly what it is and who did it and how. And we didn't notice it until very recently, but now we're making up for it by extra super very much noticing it. Thank you. And what's really interesting is, I mean, reading through the medical literature on this, I've read all these like conference papers and kind of debates back and forth

and stuff. And what's interesting is that in the medical literature, there doesn't seem to be any sense of urgency about it. Any like, guys, there's people on death row for this thing that we are saying, we need to police our members so that they are not giving fake ass diagnoses on juries, right? Like there's none of that. It's kind of like, well, you know, the next conference is going to be in 18 months. I look forward to carrying on the conversation with the Radisson.

Yeah. The medical talk about all this is so separated from like the moral elephant in the room of that there's all these people that are having these terrible things happening to them. And there's very few doctors that try to kind of create links to the legal field. There's this very dry medical debate going on for essentially two decades, all through the nineties, all through the early 2000s, before the legal system finally starts doing something. In 2008, the Wisconsin Supreme Court, in one of these cases that's been appealed, basically

says, don't do this anymore. This is debunked science. Let's not do this. I love it when the state Supreme Court says, don't do this anymore. And then there's also Ontario, lovely Canada, they kind of, they throw out a case on this basis. But then the Ontario equivalent of the AG looks over 88 other cases and throws out three of them because there's no other evidence of abuse.

You know, that's probably a low number out of 88. But at least they're kind of going through systematically and saying, hey, we really got this wrong. But what's really disturbing is that in America, there's never been that process. So first of all, America has prosecuted and convicted five times more people per capita than Canada or the UK on this. That's kind of our thing. But so, you know, the UK gives it up into the, in 2011, the UK basically says, we're

not going to do this anymore. We're not entering this as evidence, sir. Yeah. It's just not going to be, it's guidance to the courts, just kind of not accept it. Whereas what's amazing is you read through the literature in the States and it's like, okay, the such and such state supreme court overturns a conviction, but on these like really narrow grounds, it's not like they're throwing out the junk science. So this poor guy, Jeffrey Havard, who was convicted on the testimony of this medical

examiner without a license, he's still in jail. And they've just, this is like a year ago, just denied a new hearing to him. They allowed a new sentencing hearing. So he might have been to get pulled off death row, but fundamentally they're not questioning the diagnosis that he raped and murdered this child in what, 15 minutes. But you want to just like walk into those judges teenage bedroom, you know, as if they're playing sega and be like, if you have time for Sonic the Hedgehog, you have time to send a thank you card to your grandmother, like if you have time for a sentencing hearing,

you have time for a pellet review. So one of the things that I was like really alarmed by was I started Googling this like Google news search and someone was just convicted of shaken baby syndrome in Charlotte, North Carolina this month. Like we're still, we're still doing this. Isn't that amazing? And like I'm always amazed by the fact that we essentially don't have any kind of systematic safeguard in our legal system, any kind of national overview, conviction, integrity,

whatever based on the idea that our system is fallible. All of the assumptions implicit in how the appeals process works is that trial courts really do not make mistakes and that it would be this absolutely bizarre unprecedented, you know, 0.04% possibility that that would happen, but like, please. And it's like, they actually, that's kind of their thing because they're attempting to understand something without the intervention of human error and to do so in a system that invites human error and is carried out by humans. We have a system that empowers people to act as if they're far more certain of things

than any human being can be of anything. And then we act as if it's incapable of making mistakes. I mean, one of the things that I found really alarming was I found this study from this year where they surveyed 1,400 physicians, 1,400 doctors and 88% of them said they still believe in shaken baby syndrome. Well, because doctors are also very slow to learn about things outside their own fields. I have no experience in that at all, finding out how doctors are fucking things up. A lot of times you find these stories, there was a really good New York Times magazine

article about shaken baby syndrome and its cases are being overturned and is the legal system moving on? And then it notes casually that there's at least 2,000 cases in which shaken baby syndrome is used to convict somebody and only 200 of them, so one-tenth, have had their convictions overturned. Because it's so much easier to convict someone of a crime than to exonerate them. Totally. We're not on this path of like, we're doing better, guys.

It's like, we're just leaving these grandmothers in jail for no particular reason. No, the reason we have to leave them there is because we put them there to begin with. Yeah. I mean, I want to end with, I came across the Mayo Clinic has a webMD type pages about various things of like colorectal cancer and they have one on shaken baby syndrome. So I look up this kind of Mayo Clinic overview of what is shaken baby syndrome, what causes it, what do you need to know sort of thing. And what you see is the same muddled thinking that was in the 3 cases that I started with.

So they have, the following things may make parents or caretakers more likely to shake a baby and cause shaken baby syndrome, depression, unstable family, domestic violence, stress. In this Mayo Clinic article, they have all these sort of signs and symptoms of shaken baby syndrome and what it means and it's a serious brain injury and they say it results from forceful shaking of an infant or toddler and they say it must be violent shaking to cause it. And then at the end of the article, it says, if other people help take care of your child, whether a hired caregiver, sibling or grandparent, make sure they know the dangers of shaken

baby syndrome. So it's like, okay, so it's violent and forceful and murderous, but talk to them about the dangers. Like, what are we? Talk with your family about not murdering your baby. Accidentally deliberately murdering your baby. So it's amazing to me that even now, we have this same magical thinking. You can do it accidentally in five seconds, but also to have accidentally done it, you

must be a demon. Yes. You're going to treat you like one if the legal system ever gets in touch with you or if CPS gets there before anybody else. We're sort of rounding off this cluster of ours, but with a very depressing case. Well, we will be thinking of the children in a much more fun way as we do our Halloween episodes, which really are not distinguished theme-wise from anything that we've done until now because for Halloween, we're doing scary stories and that's kind of our thing.

But we're also doing the Urban Legends Spectacular, which I'm extremely excited about. Yes. So when, I think we're going to do the razor blades and the apples and stuff, but if you have other urban legends that you want us to look into, let us know. We know about the High Beams one too, but those are the two we've got so far. And I especially want to hear any story where the calls are coming from inside the house. Yes. And just don't touch anyone's baby.

My moral actually is ignore experts and for as likely as they are to put you in prison, babies can also be nice. Witnesses have witnesses at all times. That's where I'm living. It's not being alone with anybody's baby.