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tv   Book Discussion on Flawed Convictions  CSPAN  August 30, 2015 1:00pm-1:16pm EDT

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>> that was "after words," booktv's signature program in which authors of the latest nonfiction books are interviewed by journalists, public policymakers and others familiar with their material. "after words" airs every weekend on booktv at 10 p.m. on saturday, 12 and 9 p.m. on sunday and 12 a.m. on monday. and you can also watch "after words" online. go to and click on "after words" in the booktv series and topics list on the upper right side of the page. >> and now joining us on booktv is northwestern university professor of law deborah tuerkheimer. before or after tuerkheimer, you've written a book called "flawed convictions." chat shaken baby syndrome? >> guest: shaken baby syndrome is a medical diagnosis with extreme legal consequences.
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i've called it, actually, a medical diagnosis of murder. that's because the diagnosis itself was thought to proveevery element of the crime of murder or child abuse where the child lived, and so despite the fact that it emanates from doctors, it really is a legal issue. and i write the book from the perspective of the criminal justice system. >> host: so you don't see shaken baby syndrome as necessarily a medical issue? is it a legitimate issue medically? >> guest: well, it's an interesting question. it really is about diagnosing child abuse. it really is about finding a cause in abuse, finding a perpetrator as opposed to any be treatment that we tend to think of as associated with a diagnosis. it's a constellation of symptoms, but the doctors have said and sometimes continue to say can prove that a baby was abused and prove who abused the
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baby. >> host: whichwhen was it first, a, as a medical term and a legal team? >> guest: we see it in the medical literature going back to the early 'ooh 70s, and in the united states it first came up on appeal in a criminal case in the early '80s. it really exploded in the 1990s. >> host: why? >> guest: it's, you know, it's probably a combination of factors. the rise of child abuse as a specialty within the field of pediatrics, you know, greater attention to the issue of child abuse and rightly so. and training on the part of prosecutors. it really sort of became disseminated as an idea in the prosecutorial community took hold, as i say, in the '90s. >> host: what's been the legal effect of shaken baby syndrome? >> guest: the caregivers,
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sometimes parents but often, very often caregivers, have been sent to jail and more often to prison for lengthy periods of time on the basis of this diagnosis. and that's what we see in the criminal justice system. in family court we see the removal of children from those suspected of shaking babies. >> host: you tell the case study of jennifer. who is she and what happened to her? >> guest: jennifer, i think, is how she pronounces her name, was a caregiver in illinois. she was caring for a young baby. she herself was a parent of two children and had raised these children on her own. she was accused of shaking this baby in a case that i describe in the book as paradigmatic of this diagnosis -- >> host: which means? >> guest: meaning that it's representative of the kinds of fact that is we -- that we see
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when we look to see how the legal system treated this diagnosis. she ended up being convicted on the basis of the three neurological symptoms that define this diagnosis. she proclaimed her innocence throughout the proceedings, and she was sentenced to decades in prison. where her case takes a twist is in the past few years when the diagnosis has come under attack. jennifer was able to convince a federal court judge here in chicago that she was very likely innocent of the charges against her, and she was released from prison pending the resolution of her case. she still has outstanding legal claims that need to be resolved, but she convinced a judge that she probably budget guilty of these -- wasn't guilty of these charges and she should at the very least not be incarcerated while she continues to fight
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some of her constitutional claims. >> host: so she is currently released -- >> guest: she is. >> host: and is she working at all? is she allowed to be around children? >> guest: i don't, i don't believe that she is. i believe a condition of her release is that she cannot, cannot work with children. she has now-grown children of her own. her children were young and in the teenage years when she was sent to prison x they've since grown up. >> host: in your book, "flawed convictions," you describe jennifer. what was her background besides justing with a caregiver? -- just being a caregiver? >> guest: she was active in her church and active around taking care of children in that church. she was very involved in her children's lives and those of her children's friends, as i understand it. her home was a gathering place for kids. and i should say never, she never had any trouble. she was never accused of doing
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anything hurtful to a child or having a temper. you know, this is based on the evidence that was admitted at her trial, i'm going based on the witnesses that testified for and against her at trial. >> host: deborah tuerkheimer, what's the medical evidence of a shaken baby that's been used? >> guest: the classic evidence is the so-called triad of symptoms, and i'll tell you what those are. the first is subdural hematoma which is bleeding beneath the outside, the outermost membrane layer of the brain. retinal hemorrhage which is bleeding beneath the back of the eye and cerebral edema which is swelling. so those three symptom ises, the triad, again, were thought to prove shaking, violent shaking by the caregiver last with the baby when the baby was lucid. >> host: so the legal community or some in the legal community have challenged this.
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what else could have happened to a baby if that baby has that triad of symptoms? >> guest: doctors now recognize that a number of causes can actually bring about this triad of symptoms. sometimes doctors refer to these causes as mimics of abuse because you cannot distinguish, you cannot distinguish them from the classic triad a of symptoms that we're talking about. so there are natural causes of the triad; metabolic disorders, autoimmune disorders, bleeding disorders, a child can have a stroke, a child can have a seizure, and this can bring about those three symptoms that were once thought to con cluesoffly prove abuse -- conclusively prove abuse. >> host: in your research, how many people do you think are probably imprisoned wrongly because of shaken baby syndrome? >> guest: it's such a hard question to answer because for so many years, for decades no
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one was really keeping track of this as a phenomenon that should be watched. and so it's only recently that the justice project here at northwestern has started to collect data on a national basis, and they've posted this online. they've collected upwards of 3,000 cases, i believe, of shaken baby syndrome over the past decades. now, certainly not all of those cases have resulted in a criminal conviction, but, you know, we can assume based on their data, based on appellate, reported appellate cases, hundreds and hundreds. >> host: what is the madill justice project? >> guest: it's a project out of the journalism school here at northwestern, and shaken baby syndrome is only one of a number of projects that they undertake with a view toward improving the integrity of our justice system. >> host: how did you get involved with shaken baby
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syndrome? >> guest: ing i am a former prosecutor. i worked in the manhattan district attorney's office after graduating from law school. i handled domestic violence and other kinds of cases, but also child abuse cases. and so is i was b trained on this what i've called paradigm, this triad of symptoms and its significance. i learned from my doctors, my expert witnesses what this was supposed to mean. then i left the d.a.'s office to become a law professor and, frankly, didn't think about shaken baby syndrome much, if at all, until i read a case that came out of the appeals court in wisconsin in early 2008, a case called audrey edmonds. this was another caregiver who was convicted based on this triad of symptoms, and she had her conviction vacated by an appeals court in wisconsin very
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concerned about the change in the scientific consensus around this diagnosis. very concerned that now that we know more about this triad of symptoms, audrey edmonds was someone who very likely also did nothing to this child that she was alleged to have shaken. i wondered, you know, about whether this was right, this reasoning was right. i was concerned because i knew based on my training as a prosecutor that so many cases were factually indistinguishable from the facts of audrey edmonds that the same triad of symptoms that convicted her convicted so many others. and so is if this court was right that the science had shifted and that there were so many unknowns now such that audrey edmonds needed to have her conviction overturned, i wondered about how the criminal justice system would adapt and
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respond to the other convictions very much like hers. and so that's what drew me into the research. i wanted to figure out whether this shift in scientific thinking really had occurred, and if so, what the implications for criminal justice would be. >> host: are there legitimate cases of shaken baby? >> guest: that depends on who you ask. those particularly in the biomechanical community would say that someone cannot shake baby and bring about only the triad of symptoms, that you would see other signs like neck or spine involvement, you would see bruises. and then there are those who say maybe you can and maybe it's a real diagnosis, but we just simply can't feel confident about diagnosing it based on these three symptoms alone. no one denies that children, babies are abused and that
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abusers should be held accountable, i should add that. there are certainly cases where a prosecution goes forward based on medical corroborations beyond this triad of symptoms that i'm talking about. the cases that i write about in my book are triad-only cases. >> host: you're saying that there are thousands of those triad-only cases? >> guest: well, the database that's online now that madill has posted doesn't break those diagnoses down into triad only as opposed to triad plus as we might think of them. so i don't know that there are thousands, but i do know that there are many hundreds. >> host: so why do so many of these cases, these sbs cases end with guilty pleas? >> guest: well, the evidence against these defendants was seen as overwhelming. the prosecution was able to present expert after expert who
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would testify with certainty that this triad of symptoms meant abuse and abuse by the defendant on trial. and until very recently, there wasn't a whole lot that the defense could say in response. it wasn't until recently that the defense was able to find experts who could challenge that, you know, that viewpoint. it wasn't until recently that we knew about these alternative causes of the triad. and so with that overwhelming evidence against even innocent defendants, i think would be enteased by some kind -- enticed by some kind of a deal that allowed a plea of guilty with a much lesser sentence than the sentence that those defendants would face if they were convicted after trial. so some of the cases i write about involve a very steep sentencing disparity if the sentence after trial would be up to life, 0 years -- 30 years, 40 years. the deal offered by the
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prosecutor in some of these cases was time served, so plead guilty and get out. get off of jail now. and -- out of jail now. and it's not simply in the shaken baby context that i think we ought to have some concerns about those kind of pleas. >> host: we talked earlier with here at northwestern with professor robert burns, and we talked about the plea bargaining. do prosecutors feel pressure to offer plea bargains to get this case in -- off the books? >> guest: well, absolutely. prosecutors feel that pressure, defense attorneys feel that pressure, judges feel that pressure. it really is sort of way that the criminal justice system as it's now constituted keeps moving, keeps running, keeps working without those pleas there would be a drain on the system requiring resources that, you know, to date we just haven't invested in our system. so in some jurisdictions up to
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95% of cases are resolved in guilty pleas, and that -- the effects of that are felt throughout the system. >> host: northwestern university professor of law deborah tuerkheimer. thanks for being on booktv. and this is booktv on c-span2, television for serious readers. here's our prime time lineup for tonight. givenning at 8 p.m. eastern -- beginning at 8 p.m. eastern time, jeff shepard, a member of president nixon's defense team, describes what he calls the collusion, conspiracy and plot that brought nixon down. be that program is followed at 9 p.m. by our "after words" program, delawareal denews ya principal that recalls his journey to princeton university. and at 10 p.m. eastern time susan peterson reports on the growth and then the fall of the league of nations. and finally at 11 p.m. eastern time, peter kiernan argues the importance of restoring the middle class in


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