Prosecutors build murder cases on disputed Shaken Baby Syndrome diagnosis

Six years ago, in a tidy home day care on the edge of a cornfield, with angel figurines in the flower beds and an American flag over the driveway, 9-month-old Trevor Ulrich stopped breathing. He had contusions on his scalp and bleeding on the surface of his swollen brain.

Within weeks, day-care owner Gail Dobson was charged with killing the baby in a fit of frustration at the business she had run for 29 years along a rural stretch of Maryland’s Eastern Shore. The Sunday school teacher and grandmother of three was convicted of second-degree murder in 2010, eight months shy of her 54th birthday, and sentenced to 20 years in prison.

“To me, she is a monster,” Trevor’s mother told a local television reporter in 2013. “She is a cold-hearted killer.”

But what prosecutors called a clear-cut case of child abuse is now mired in doubt. Two doctors working on Dobson’s appeal last year argued that the scientific testimony used against her was fundamentally flawed. A judge overturned the conviction and ordered a new trial, finding that a jury hearing that argument could have had “a reasonable doubt” about her guilt.

Doctors for the prosecution said Trevor had been a victim of Shaken Baby Syndrome, a 40-year-old medical diagnosis long defined by three internal conditions: swelling of the brain, bleeding on the surface of the brain and bleeding in the back of the eyes. The diagnosis gave a generation of doctors a way to account for unexplained head injuries in babies and prosecutors a stronger case for criminal intent when police had no witnesses, no confessions and only circumstantial evidence.

It has also led to more than a decade of fierce debate: Testing has been unable to show whether violent shaking can produce the bleeding and swelling long attributed to the diagnosis, and doctors have found that accidents and diseases can trigger identical conditions in babies.

Challenges to the diagnosis have spilled into courts on two continents. In 2005, Britain’s Court of Appeal found that the head and eye injuries alone were not absolute proof of abuse, and, in Sweden last year, the Supreme Court ruled that the scientific support for the diagnosis had “turned out to be uncertain.”

In the United States, 16 convictions have been overturned since 2001, including three last year. In Illinois, a federal judge who recently freed a mother of two after nearly a decade in prison called Shaken Baby Syndrome “more an article of faith than a proposition of science.”

Despite the uncertainty, prosecutors are still using the diagnosis to help prove criminal cases beyond a “reasonable doubt” against hundreds of parents and caregivers.

“You can’t necessarily prove (Shaken Baby Syndrome) one way or another – sort of like politics or religion,” said forensic pathologist Gregory Davis, the chief medical examiner in Birmingham, Alabama, and the board chairman of the National Association of Medical Examiners. “Neither side can point to compelling evidence and say, ‘We’re right and the other side is wrong.’ So instead, it goes to trial.”

The Washington Post, in partnership with journalists at Northwestern University’s Medill Justice Project, carried out the first systematic examination of dispositions in Shaken Baby cases since doctors started disputing the science behind the syndrome.

Reporters used court records and newspaper reports to track down murder or abuse cases involving shaking that have been filed or dismissed since 2001. The year-long study unearthed about 1,800 resolved cases nationwide, finding some of the heaviest concentrations in counties in Ohio, Pennsylvania, Wisconsin and Nebraska.

About 1,600 cases resulted in a conviction, a rate that is higher than that for other violent crimes. In hundreds of cases, there were reports of shaking along with more obvious forms of violence that left extensive bruises and broken bones, with prosecutors alleging that babies also had been slammed, thrown or beaten.

The study for the first time identified about 200 cases in 47 states that ended when charges were dropped or dismissed, defendants were found not guilty or convictions were overturned.

Among them: a 39-year-old software entrepreneur in California who mourned his infant son while locked in an isolation cell; a 13-year-old babysitter in Washington who was charged with second-degree murder; and a 46-year-old grandmother in Arizona who spent nearly 21/2 years facing capital murder charges.

Kelly Kline, acquitted in 2012 of shaking a baby to death in her home day care in rural Ohio, met her 6-year-old daughter for a parents’ lunch at school the day her mug shot flashed on the local news.

“If I wasn’t married and didn’t have kids, I would have committed suicide because of the hell, the embarrassment,” said Kline, a mother of three.

In four of the cases, doctors who had diagnosed shaking later revised their opinions, saying they were uncertain about the timing or cause of the injuries. One of the revisions helped free a Sacramento, Calif., father after 31/2 years in jail.

In four other cases, new medical examiners found that their predecessors had made mistakes by diagnosing shaking in babies who likely died from conditions that had nothing to do with violence. One doctor in Tennessee found a 10-week-old diagnosed with shaking appeared to have suffered from a series of strokes while he was in the womb.

Forensic pathologist George Nichols is among the doctors who once diagnosed Shaken Baby Syndrome and no longer believes in the science.

“Doctors, myself included, have accepted as true an unproven theory about a potential cause of brain injury in children,” said Nichols, who was the chief medical examiner of Kentucky for 20 years before retiring in 1997. “My greatest worry is that I have deprived someone of justice because I have been overtly biased or just mistaken.”

Doctors and prosecutors who defend the diagnosis dismiss the challenges, saying Shaken Baby Syndrome is supported by years of clinical work, research and confessions from parents and caregivers. They say the doctors and scientists who frequently testify for the defense are on the fringes of mainstream medicine and are often paid to provide testimony.

“There is absolutely no question among any ICU doc that I’ve worked with that shaking a kid can cause these things,” said Desmond Runyan, a Colorado-based pediatrician and professor who has spent more than 30 years researching child abuse.

The doctors said they don’t rely solely on the internal head and eye injuries linked to shaking to make a diagnosis: They also look for external signs of abuse, weigh the accounts of caregivers and take steps to rule out natural causes and accidents.

“In the first 10 minutes the kid is in the hospital, we rule out meningitis, we rule out leukemia, we rule out sepsis,” said California pediatrician John Stirling. “It is a standard of practice to do those things, and in most cases, that is what is done.”

Prosecutors also say they consider all circumstances surrounding a baby’s death.

“I think it’s a very clever and misleading device ... to reduce these cases down to a sound bite,” said Leigh Bishop, a prosecutor who is chief of the Child Fatality Unit in Queens County, New York. “We’re never in a rush to go out and throw handcuffs on somebody.”

Prosecutors add that judges have overturned Shaken Baby convictions for a range of reasons – not necessarily because they thought the science was flawed.

“It’s a correct diagnosis,” said Mary-Ann Burkhart of the National Center for Prosecution of Child Abuse at the National District Attorneys Association. “All areas of science and law change and evolve as more information comes to light; however, the fact that children too often suffer fatal abuse at the hands of their caretakers – and that abuse includes traumatic head injuries – has not changed.”

As questions about the diagnosis mounted, the American Academy of Pediatrics recommended that doctors stop using the term “Shaken Baby Syndrome,” noting that “the precise mechanisms for all abusive injuries remain incompletely understood.” Instead, the academy in 2009 suggested a broader term that is now widely used – abusive head trauma – that includes shaking, blunt force impact or a combination of both.

The battle over the science has played out in court cases across the country.

In December, a judge in New York overturned the murder conviction of a 55-year-old babysitter who had spent more than a decade in prison, declaring that the shaking evidence against her was “either demonstrably wrong or are now subject to new debate.”

Two weeks later, a Texas judge recommended a new trial for a man sentenced to 35 years in 2000 for injuring his girlfriend’s daughter. The district attorney and the defense attorney had submitted a joint agreement to the court stating that “the science that formed the basis of the conviction is now known to be unsound.”

In the cases where convictions were overturned, defendants had to marshal significant legal resources and medical expertise to challenge the scientific testimony against them. Some have been supported by lawyers affiliated with the Innocence Network, a worldwide organization that works to exonerate defendants who say they were wrongly convicted. The network’s affiliates are currently working on at least a hundred Shaken Baby cases.

“It’s almost always taken massive legal and medical support to do that, the kind of support that your typical criminal defendant simply doesn’t have access to,” said law professor Keith Findley, who has helped represent Shaken Baby defendants through the Wisconsin Innocence Project at the University of Wisconsin.

One of the earliest dismissed cases in The Post-Northwestern study was in Texas, where an ailing 2-month-old named Daniel Lemons, home alone with his mother, stopped breathing during a morning nap in 1999. He died in the hospital seven days later.

Patricia Moore, Harris County associate medical examiner, noted in her report that she found marks on the baby’s face, as well as swelling of the brain and bleeding in the back of the eyes. Moore ruled the death a homicide.

The baby’s mother, Brandy Briggs, a 17-year-old waitress in the family’s struggling restaurant, was charged with his death. Her family paid $10,000 to hire a defense attorney but couldn’t afford to bring in a medical expert to review the case. In 2000, Briggs pleaded guilty to a lesser charge of injury to a child and was sentenced to 17 years in prison.

In 2004, a new chief medical examiner, Luis Sanchez, reviewed the autopsy findings and found that in the rush to save the baby at the hospital, a breathing tube had been improperly inserted into his esophagus, sending air to his stomach instead of his lungs and depriving Daniel of oxygen for more than 20 minutes. He changed the manner of death from homicide to undetermined.

After five years in prison, Briggs’s conviction was overturned and prosecutors dropped the charges. Now 33, she is remarried with a young son, Benjamin. She makes frequent trips to leave snow globes and flowers at Daniel’s grave.

“You know mama misses your big brother so much, still,” Briggs, whose married name is now Brandy Sorto, said to Benjamin on one recent outing. “He would have been a good big brother to you.”

Another early case was launched near Tampa in 1998 after David Long’s little girl, Rebecca, turned gray and listless and died in the hospital. She had been born three months early, weighing less than two pounds, and had struggled with health problems.

“She was our miracle baby,” Long’s wife, Teresa said.

An associate medical examiner, Marie Hansen, concluded the baby had died from blunt traumatic head and neck injuries. After an 18-month investigation, Long was charged with first-degree murder. He spent 49 days in jail before he made bail. He had trouble finding a job and declared bankruptcy.

In a pre-trial deposition, Hansen said the baby had been shaken and she ruled the death a homicide because there was “no other explanation” for the injuries.

In 2002, after the case had lingered for more than three years, the new medical examiner, Jon Thogmartin, reviewed the baby’s records and sought the opinion of three other doctors. All four reached the same conclusion: There was insufficient evidence to support a diagnosis of trauma. Thogmartin said Long’s daughter had died of pneumonia, complicated by a premature birth.

The autopsy report was amended and the charges against Long were dropped.

Hansen did not respond to requests for comment.

“We couldn’t even mourn,” Long said.

Thogmartin in 2002 also reviewed the case of a 2-month-old who had been found dead on the floor next to his parents’ bed. John Peel and the baby’s mother said the infant had fallen, but Joan Wood, the medical examiner at the time, ruled the death a homicide, citing a contusion and bleeding on the brain.

Peel was serving a 10-year prison sentence when Thogmartin told prosecutors that he could not substantiate Wood’s findings. He sent the case to another medical examiner, who wrote that the single contusion and bleeding “do not a homicide make.”

State Attorney Bernie McCabe asked a judge to vacate the conviction, and Peel was released from prison.

“He was wrongly jailed,” McCabe said.

Another case collapsed near Nashville, Tennessee, in 2006, when young father Andy Houser was cleared of shaking his son to death. Like the cases in Texas and Florida, a new medical examiner found his predecessor had made a mistake, incorrectly concluding that the baby’s death had been caused by blunt force injuries. Instead, the 10-week-old baby likely died from complications of multiple strokes that developed within the womb, assistant medical examiner Thomas Deering wrote in an amended autopsy report.

“The findings originally attributed to blunt trauma may be completely, or at least in part, attributable to a natural sequence of events,” he wrote.

The case was dismissed by prosecutors after Houser had spent two years facing first-degree murder charges. He had been brought in for questioning just hours after his son was buried.

“I had to be fighting for myself instead of grieving for my child,” he said.

On Maryland’s Eastern Shore, Gail Dobson had opened a home day care when her youngest son was born and spent 29 years at a kitchen table covered with construction paper and finger paint, caring for neighborhood children and then their children.

In April 2009, elementary school teacher Kelly Ulrich made arrangements with Dobson about providing day care for her son, Trevor, who had been born seven weeks early with respiratory distress and had spent several weeks in intensive care, court records and trial testimony show.

Ulrich had known Dobson’s family for 20 years, and Dobson, then 52, had a strong reputation in the community. She volunteered at the fire department and at church cookouts and had led Talbot County’s child-care association. Her two sons were in law enforcement.

When school started in August, Ulrich took 9-month-old Trevor – a chubby baby his father called “Squirt” – to his first day in day care. When the baby’s grandmother picked him up, Dobson said that Trevor had tried to pull himself into a standing position and had hit his face on the metal bar of a bouncy seat, leaving a small bruise below his eye.

In the car, Trevor started vomiting. He was still throwing up at his grandmother’s house, and Ulrich took him to the emergency room. A doctor diagnosed Trevor with dehydration and stomach irritation. Ulrich later testified that she didn’t mention the bruise on the baby’s face to hospital staff because Dobson’s explanation seemed “reasonable.”

Trevor stayed home sick the next day, but he returned to day care the following morning, Sept. 2.

That day, Dobson was caring for Trevor and three other children with help from her 74-year-old mother. Dobson testified that she found Trevor “dull” and not as active as usual. She said she fed him lunch at 1 p.m., then let Trevor crawl around and entertain himself in the living room.

Dobson said that when her mother left at 2:15 p.m. she went to prepare a bottle for Trevor. She noticed he had a dirty diaper, and when she tried to change him he crawled away and her carpeting got smudged. She said she pulled him back “by his leg.” Then she fed him, rocked him and put him in a crib.

Her husband came home at 2:45 p.m. and went out to the patio.

About 3 p.m., she said, she was preparing a bottle in the kitchen for another baby when she heard Trevor making “gurgling” sounds.

“I thought that Trevor was choking,” Dobson later testified. “I immediately picked him up and I gave him probably four back thrusts and he spit up a little bit.”

Dobson said she believed Trevor was still sick. But when he failed to respond, she called Ulrich and 911, and said she performed CPR until paramedics arrived.

At the hospital in Easton, Maryland, doctors got Trevor’s heart to start beating again and had the baby airlifted to Children’s National Medical Center in Washington. There, doctors found widespread bleeding in Trevor’s head, brain swelling and bleeding in the back of the eyes. Doctors also noted bruising just above Trevor’s right ear, about one inch long, a “small abrasion” on his left abdomen and bleeding in areas of his retina.

Trevor was taken off life support and died the following day.

D.C. deputy medical examiner Carolyn Revercomb performed an autopsy, documenting the internal bleeding and swelling as well as six contusions on Trevor’s scalp, ranging from one-quarter of an inch to one-half of an inch, a faint bruise on his back and one on his thigh. The retina in his right eye was detached. She ruled the cause of death as “blunt impact head trauma.”

Prosecutors concluded that Dobson – the last person with the baby – had abused him during both visits to her home. In November 2009, she was indicted on 11 charges, including second-degree murder, first-degree child abuse and first-degree assault.

“I was just dumbstruck,” Dobson said. “I just couldn’t believe it.”

As the trial neared, Dobson’s attorney, Raymond Simmons, attempted to get Allan De Jong in Delaware to testify on her behalf. De Jong was an unlikely choice for the defense: He is a pediatrician who has lectured on the dangers of shaking and blunt trauma.

De Jong reviewed the case and, in a letter to Simmons, said that the bruising below Trevor’s eye was not “specific for abuse” and could have been caused when Trevor’s head hit the bouncy seat during the first day in Dobson’s care. But De Jong said that Trevor had died from “violent shaking” two days later.

Simmons chose not to call De Jong as an expert witness, which left Dobson without a single medical expert to defend her at the 2010 trial.

Prosecutors called three doctors who testified that Trevor had been abused. Revercomb, the medical examiner, said the baby had died from an impact injury and possible shaking.

Pediatrician Allen Walker testified, “Trevor died as a result of blunt trauma to the head as well as shaking injury to the brain.” Pediatrician Tanya Hinds agreed, describing widespread bleeding and saying, “The cause of Trevor’s death was vigorous, repetitive shaking trauma with impact.”

Hinds added: “This is one of the worst cases of abusive head trauma that I have seen.”

Two dramatically different descriptions of Dobson were presented to jurors.

Prosecutors argued that Dobson had snapped, frustrated when Trevor soiled his diaper and refused to follow her day-care schedule. Prosecutors said Dobson gave inconsistent accounts about the events leading up to Trevor’s injuries, had violated state licensing regulations that day by caring for one too many children under age 2 and had lied to a state regulator about when her mother had left the house.

Prosecutor Maurice Nelson said Trevor’s head injuries had triggered a “neurological disaster.”

“Healthy babies just don’t die,” he told jurors.

Simmons painted an entirely different picture, saying Dobson had “no prior incidents” and “28 years of a good operation,” was widely considered truthful and had struggled to recall what had happened in her day care under the stress of the situation.

“She was the last person who had custody for Trevor,” Simmon said. “It is guilt by proximity.”

He added: “Does anyone really believe that a poopy diaper and a fussy child would cause someone to vigorously and violently kill a child? It does not make any sense.”

The jury acquitted Dobson on the charges relating to the bouncy seat incident, but found her guilty of killing Trevor on his second day at the day care. She was also convicted of first-degree child abuse and second-degree assault. She was sentenced to 30 years in prison, with 10 years suspended.

Ulrich started a blog, posting: “I miss Trevor every day, every moment, all the time. I usually don’t let my mind drift into the details of how he died. I can’t. It hurts too much.”

She gave her views on Dobson in a 2013 appearance on local television. “She’s the woman who abused my son, who repeatedly beat him on the back of the head with something to the point where his brain swelled and died,” Ulrich told a reporter.

In prison, Dobson got a job in the property department, earning 95 cents a day. She started receiving hate mail, with one anonymous Hallmark card with a picture of Mickey Mouse that read, “May you rot in hell.”

Her husband lived alone in their empty house, the cribs and toys stuffed into the attic. “Everything’s been against us,” said Charlie Dobson, who has worked for an electronics packaging manufacturer for 41 years.

Dobson appealed, arguing there had been insufficient evidence to convict her. The Court of Special Appeals of Maryland affirmed the conviction in 2012.

But that year, the case took a significant turn.

Thomas Wyman, the 91-year-old owner of Talbot County Maryland’s historic Wye Heights Plantation, where Dobson’s father had worked for years, volunteered to hire new defense attorneys. Wyman said that Dobson had received a “flawed trial” and “none of the evidence confirmed that this lady was guilty of Shaken Baby” Syndrome.

“I saw that there was a total injustice,” Wyman said. “She was a friend of my family and was a friend of my children, going back decades. So when I realized that this lady who had a totally blameless life, now in her 50s, needed help and had no savings, no money, the only person who could rectify all this was I. And happily, I was able to do that.”

Wyman’s money allowed Dobson to hire new attorneys, including Flynn Owens, now a Baltimore City District Court judge. He reached out to Washington-area neurosurgeon Ronald Uscinski. North Carolina forensic pathologist Peter Stephens was also called in.

Both doctors reached the same conclusion: Trevor had older bleeding in his head, a sign of an undiagnosed condition that had started prior to his collapse in Dobson’s day care. The bleeding could have been caused by an unknown injury days or even weeks before the baby went to day care, the doctors said at a post-conviction hearing in February 2014.

Uscinski also testified that the baby’s head size had grown from the fifth percentile to the 90th percentile, which he said probably was caused by an unknown underlying condition.

Stephens, a former medical examiner, called the shaking allegations “reckless” and testified that Trevor showed no signs of an impact injury. He had no skull fracture or broken bones, and the small contusions on his scalp were “trivial,” Stephens said.

The contusions could have been there for days or caused by the resuscitative efforts of emergency workers and staffers at the two hospitals where Trevor was treated, he said.

“I’ve never seen an infant who has been resuscitated who doesn’t have some marks on the head, even multiple marks,” Stephens said. “It’s inevitable.”

Revercomb, who now practices in Rhode Island, said she could not discuss a pending case.

In a recent interview, Ulrich said Dobson’s new medical experts were “hired guns” who were paid for their time; both doctors said they took time away from their medical practices to work on the case. Ulrich also said that she had dropped off a “healthy, normal child” at Dobson’s house. “I do believe that she snapped,” Ulrich said. “I don’t believe that my child just died.”

In early April, Kent County Maryland Circuit Court Judge Paul Bowman overturned Dobson’s convictions and ordered a new trial, finding the doctors for the defense “credible.” The judge said the case against Dobson consisted “entirely of circumstantial evidence” and that Dobson was “doomed to be convicted” when Simmons failed to bring in a single doctor to defend her at trial.

“The significance of the charges mandated that any competent defense attorney would have become acquainted with the fierce debate going on at the time of trial concerning Shaken Baby Syndrome,” Bowman wrote.

He added, “There is a reasonable probability that the jury would have found a reasonable doubt as to Petitioner’s guilt at her trial.”

Simmons declined to comment.

Last August, two months after Dobson’s conviction was overturned, her husband and sister-in-law showed up at the courthouse to put up the deeds to their homes so Dobson could post bail.

She was released from custody on $150,000 bond after nearly four years at the Maryland Correctional Institution for Women. In the courthouse parking lot, she hugged her twin brother, her reverend, neighbors, nieces, cousins and a family friend who had grown up in Dobson’s day care.

“I thought the judge was going to say no,” Dobson said in a shaky voice.

With that, her husband and sons hustled her into the back seat of a family truck, and Dobson went home.

Prosecutors have asked the Montgomery County state’s attorney’s office to pick up the case. A state’s attorney spokesman said the case is being assessed.

“It’s not over,” Ulrich said. “It’s definitely not over.”

Lauryn Schroeder, Jessica Floum, Manini Gupta, Dan Bauman and Mark Olalde of Northwestern’s Medill Justice Project; Cathaleen Qiao Chen of the Investigative Reporting Workshop at American University; and Washington Post video journalist Zoeann Murphy, photographer Bonnie Jo Mount, database editor Steven Rich and researchers Alice Crites, Magda Jean-Louis and Jennifer Jenkins contributed to this report.

This story was originally published March 22, 2015 at 8:17 PM.