P v Roberts
Case of B.K. Roberts Overturned by Michigan Court of Appeals
On June 6, 2017, the Michigan Court of Appeals released an important opinion overturning the conviction of Brian Keith Roberts, who was convicted of 1st degree murder, 2nd degree murder, and 1st degree child abuse. The case was built upon the government’s theories regarding Abusive Head Trauma (AHT). Abusive Head Trauma is one of the newer diagnoses built upon the classic Shaken Baby Syndrome (SBS) theories. In this case, the defense attorney consulted with a medical expert associated with Lansing’s Sparrow Hospital, but did not call on the expert to testify. As a result, all of the medical testimony came from government witnesses.
After the conviction, the appeals court ordered the trial court to hold a hearing into the allegations of ineffective assistance of counsel. The trial court held the hearing and defense expert witnesses presented strong challenges to the government witness’ testimony, especially the testimony regarding the amount of force that was needed to cause the injuries.
Why the Case Was Overturned
In this case, as with all SBS & AHT cases, there was a significant amount of medical controversy. Basically, the government witnesses failed to consider the significant available evidence that the 2-year-old child had pre-existing medical conditions, which pre-disposed him to have bleeding inside of his head with very minor impact or force. Amongst those conditions were macrocephaly (enlarged head) and older subdural bleeding (fluid collections around the brain).
There is a growing body of scientific evidence that children with both of these conditions are pre-disposed to bleeding and re-bleeding in the subdural spaces. (The Dura is one of the protective layers of tissue between the brain and the skull.) Unfortunately, the doctors testifying in this case for the government gave testimony that would have been the prevailing wisdom 30 years ago. However, in a contested case, we depend on attorneys for both sides to bring forth the issues of controversy to the jury so that the Defendant can get a fair trial.
About Ginther Hearings
The defense attorney in this case, a former Calhoun County Assistant Prosecuting Attorney, was forced to take the stand and explain his actions (or lack thereof). In Michigan, this type of hearing is called a Ginther hearing. At the Ginther hearing, the defense attorney testified that he was not aware of the medical controversy regarding the Abusive Head Trauma theories. As a result, he did not grasp the need for retaining defense expert witnesses. Two medical witnesses testified at the Ginther hearing at the request of appellate attorneys for Mr. Roberts. They were Dr. Ljubisa Dragovic, a Forensic Pathologist and Dr. Julie Mack, a Diagnostic Radiologist. Together, they made a compelling case that there was no scientific basis for much of the testimony, which came from government experts.
Mr. Roberts will now get the opportunity for a new trial. Hopefully he will be better represented. It is essential for trial attorneys in medically complex cases to solicit testimony from formidable experts who are willing to testify for the defense. Those are sometimes few and far between because there is a lot of pressure on medical doctors to refuse help to the defense. The medical testimony in this case was shockingly unscientific and unsupportable. Unfortunately, it was not seriously challenged.
Contact Cronkright Law for More Information
Mr. Roberts can be grateful for the excellent work of the lawyers and medical doctors who assisted in his appeal. Unfortunately, there are still plenty of defense attorneys practicing in Michigan and elsewhere who, like the attorney on this case, don’t even understand that there is medical controversy around the SBS/AHT theories. At Cronkright Law, we are dedicated to helping parents and others who are falsely accused or overcharged. It is refreshing to see this quality of work from appellate attorneys and encouraging to see Michigan courts willing to step in and help when lawyers drop the ball.
If you are facing a difficult case, I can help. Call me. I never charge for a first consultation.
Michael Cronkright is a trial attorney licensed in Michigan and Florida. He is the founder of Cronkright Law, a firm focused on helping parents.