In Part One, we discussed a recent case in which the Court of Appeals ordered the trial court to hold an evidentiary hearing on newly available evidence. You can read the opinion on People v. Miller here. Hopefully, this evidentiary hearing will result in a new trial.

Timing of Injuries Matter

If a new trial is granted, it could put an old argument and a lot of new science in front of the new trial judge. Michigan courts have increasingly recognized Shaken Baby Syndrome (SBS) and Abusive Head Trauma (AHT) as controversial diagnoses. Based on the medical facts, the Miller case puts several of the areas of controversy into play. For example, at autopsy, it was discovered that the child had injuries that were older injuries. The timing of injuries has become increasingly important to both the prosecution and the defense in criminal cases. In a criminal case, the prosecution has to prove both that a crime was committed and that the defendant committed the crime. It is difficult to prove who committed a crime when there is uncertainty as to when the crime occurred. As the science has developed, it has been increasingly clear that we cannot date many of the injuries involved in SBS cases with any certainty. When a child is left in the care of various adults over time, it becomes very difficult to present evidence sufficient enough to say who should be held responsible for the act alleged.

What is a Confession?

Interestingly, Ms. Miller admits that she shook her child. I understand that this sounds bad, but it actually opens the next “can of worms.” Her testimony was essentially that her child stopped breathing and began convulsing. In a panic, the mom shook the child to revive her. As every SBS defense attorney knows, the SBS medical pseudo-science is built on confession cases. Various medical journals advance SBS theory and support it by demonstrating the injuries that are documented in cases where parents have confessed to shaking the child. (Just like this one?) The problem is that many of the confession cases don’t involve a real confession at all. They involve an attempt at resuscitation by a parent in panic. In a case like People v. Miller, one has to wonder how shaking a baby today can cause week-old injuries. No matter, the “confessions” all play out the same way in court. The Prosecution advances the theory that the jury should believe that the parent shook the child because of the confession, but assume the parent is lying about the details. In other words, the assertion is always going to be that the child was shaken harder or longer than admitted, the parent is not willing to tell you the rest of the story, or perhaps the child was shaken more than once.

Every parent would do whatever they could to save a child who has stopped breathing. Even a parent who merely jostles a child to revive her is going to be accused of shaking and dragged through the mud by the prosecution. That’s where a good defense attorney comes in. In Part 3, I will address the disturbing trend of ignoring the medical evidence.