It's 6:00 p.m. and the usual controlled chaos of the day is finally wound down, most of your daylight hours are filled with the sounds of giggling kids and, yes, the occasional whining and tantrums. You've been a licensed child care provider for the past 15 years and you run a daycare center out of your house. You wave goodbye to the last toddler to get picked up by his dad from your doorway, then you head back inside you to middle schoolers or sitting at the kitchen table doing their homework.

So you take advantage of the brief moment of quiet. Start getting dinner ready. But the quiet doesn't last more than a few minutes, there's a knock on the door. You sure it's one of the kid's parents picking up a missing toy? But your heart sinks to your stomach when you see that it's the police. You quickly open the door worried that something might have happened to your husband who hasn't gotten home from work yet. Hi there. Is everything OK?

You ask. They ask you your name and they say, ma'am, do you run a daycare out of this house? Yes, I do. What seems to be the problem? You'll need to come with us. What do you mean? I can't right now. I'm getting dinner ready for my kids. Ma'am, you don't understand. You need to turn around and put your hands behind your back. You're under arrest. You feel the cold handcuffs tighten around your wrists.

What is this all about? There's a child in your care named Maria, you know who Maria is, ma'am? She died from brain injuries after spending the day in your care. So I'm going to read you your rights. You're speechless, Maria, that little girl who spent one session at your daycare months ago, you can't compute, but you're a mom and so you leap into action for your kids. You don't want to scare them. So you try to prevent your voice from cracking, as you call them, over.

You tell your 14 year old, look after your little brother, call your dad. He'll be here soon. Tell him not to worry. And you don't worry. This is all going to work out. You put on a brave face for them and you try not to panic as one of the officers pushes your head down and that classic move that leads a suspect into the back of a police car. Your world has turned upside down in an instant as the police car pulls away from your house and down the street toward the county jail.

You sit in jail before your trial and replayed the events of the day, you watch Maria over and over again in your head, you were sitting on the carpet helping one of the little boys get a train rolling on two tracks. When there was a knock at the door, you answered it and you saw smiling baby in the arms of her mother. This must be Maria, you said, smiling at the toddler. You took Maria from her mother's arms and helped the little girl waved goodbye with her tiny hand while her mom pulled out of the driveway.

Maria was happy and playful all day and till about noon, she started crying. And you recognize that as the telltale sign of a tired baby. You put her down for a nap. And a few hours later, Maria's mom came back. Maria was still sleeping. You watched her pick Maria up from the crib, trying not to wake her. Maria slept on her mom's shoulder the whole way to the car you watched as they pulled out of the driveway.

That's everything you can remember from that day. But that's not what happened. What you didn't know is that when Maria and her mother pulled up to their home, Maria was slumped over in her car seat, her head almost in her lap, and she thrown up all over herself. Maria wouldn't wake up, so her mom called nine one one and she was rushed to the hospital. The doctor said that the baby's brain was bleeding and swollen and her blood sugar was high.

The doctors frantically worked on her trying to revive her, but eventually Maria was put on life support. She died about a week later. Approximately two months after that, the police showed up at your house and arrested you. Sitting in your jail cell, you're paralyzed by the horror of all this one family lost their baby and your kids are at home wondering if their mother will be around to watch them grow up. Now, it's the day of your trial.

Your lawyer doesn't dispute the bleeding and swelling of Maria's brain caused her death, but there was no evidence that it was caused by anything you did. There was no evidence whatsoever that you abused Maria in any way. She didn't have any broken bones, no injuries to her neck or spinal column or anything like that. And there was, in fact, another explanation for Maria's injuries. When she had been admitted to the hospital, her blood sugar level was four times higher than what was considered to be normal.

And so it was possible that Maria's brain injuries may have been caused by an undiagnosed metabolic disorder like diabetes. But when the prosecution makes its case, the pain and mystery around Maria's death is sharpened to a fine point. A child abuse specialist takes the stand and tells the jury that Maria had bleeding and swelling in her brain and bleeding behind her eyes. Let me make it clear. Expert witness said these injuries mean that Maria incurred physical abuse associated with trauma to the head.

There is no other way these injuries could have occurred. You sit there next to your defense attorney and your heart starts beating fast, you're sweating, you know what she's saying can't be true. You can watching kids for your entire adult life, you would never you have never hurt a child. And yet you know that if you were a member of that jury and you heard this testimony from this doctor that you would probably believe it to, you would also want to be able to hold someone accountable for the death of this innocent child.

When the jury goes into their deliberations, you're not just worried about the outcome of your trial, your heart is also broken for Maria's family. You know, you'll never be able to wrap your head around their grief. But you also know that putting an innocent person in prison won't bring their baby back. After just two days of deliberating, the jury comes back with a guilty verdict. You bury your face in your hands as the verdict is read.

At your sentencing, the prosecution reads letters from Maria's family, her mother had addressed one of them to you. It said, you killed my baby. Why? Why did you do this? I begged this court to give you the maximum sentence possible. You were sentenced to 15 years in prison for manslaughter. The story you just heard is loosely based on Stephanie Spurgeon's wrongful conviction in 2008. Innocent people have been convicted based on medical testimony, which claims that three symptoms bleeding of the brain, swelling of the brain and bleeding behind the eyes indicates a form of child abuse referred to as shaken baby syndrome.

But this medical testimony has proven to be problematic. With the help of the Innocence Project and the Exoneration Project from the University of Chicago Law School, the evidence and Stephany's case was re-examined and she was released from prison in August 20 20. But many others are not as lucky and continue to serve sentences for crimes they did not commit. There's nothing more devastating than the death of a child. When a tragedy like that occurs, it's natural to want answers.

How did this happen? Who should we hold accountable for this and what could have been done to prevent it? What might be most difficult for jurors to accept is that the death was completely accidental, that there was nothing anyone did to cause it and nothing could have been done to stop it. I'm Josh Juban, civil rights and criminal defense attorney and innocense ambassador to the Innocence Project in New York today on wrongful conviction junk science. We'll explore how what's known as shaken baby syndrome has been used to falsely implicate people in crimes that they did not commit.

It turns out that shaken baby syndrome isn't a foolproof diagnosis. There are many other causes for the symptoms of shaken baby syndrome that do not arise from intentionally shaking a baby. In 1969, two scientists put a live rhesus monkey under anesthesia and strapped it to a chair made of fiberglass, the fiberglass chair was then attached to roller skate wheels when the tiny car accelerated and then decelerated quickly.

The passengers head, that is, the monkey's head was flung backwards, then quickly snap forward. Scientists wanted to study the effect of whiplash during a car crash. So the tiny car with the little monkey passenger was designed to mimic the movement of a car during a rear end collision. Of the 50 monkeys that took a ride in the whiplash car, 19 of them sustained a concussion. The study proved that direct impact from a hard surface to the head isn't necessary to cause traumatic brain injuries.

The human brain can be injured just from a head being violently jerked back and forth, causing the brain to rattle around inside the skull. This study had important repercussions for car safety.

It's part of the reason why cars are supposed to have headrests to prevent brain injuries due to whiplash during an accident. But this study also interested in a British pediatric neurosurgeon named Norman Gothe Kelch. Now, Dr Garth Kelch had been noticing infants coming into his office with no outward signs of abuse, no bruising, no broken bones. But they had bleeding around their brain. He wondered if these children had been getting whiplash not from a car crash, but from their parents and caregivers.

Now, at the time in northern England, shaken babies was a socially acceptable way of calming, quieting and even disciplining a fussy baby. In fact, when Dr. Gothe Couch saw children with bleeding around their brain, he asked parents if they sometimes shook their child. Many parents readily confess they would say, yes, Johnny wouldn't stop crying.

So I gave him a good shaking doctor got killed, suspected that shaking an infant mimic the motion of whiplash. And so he wrote a short two page paper. It said that trauma to a baby's brain, even when no other signs of physical abuse were present, may in fact be caused by violent shaking. That triggered Kelch never claimed that there might not be other causes of bleeding around the brain. He simply hypothesized that shaking might be the cause of it.

His hope was that doctors who read his study would help teach parents to handle their infants more gently to avoid accidental harm. After Dr. Garth Keller's article was published, other doctors continue to research this issue. They found that three symptoms in particular were associated with shaking a baby. These symptoms were subdural hematoma, retinal hemorrhage and cerebral edema that is bleeding around the brain, bleeding behind the eyes and brain swelling. These three symptoms became known as the, quote, classic triad, the signs that are said to be an indicator of shaken baby syndrome.

The problem is that these three symptoms became synonymous with shaken baby syndrome. If these three symptoms were present, it was thought that a parent or caretaker must have intentionally shaken their infant. And so when parents showed up to the hospital with a sick child who exhibited some or all of the symptoms of the Triad, their children were taken away from them. The parents were put on trial and they were sometimes convicted of abusing or even killing their own child as parents started to be accused of child abuse based solely on the hypothesis of shaken baby syndrome.

Dr. Garth Kelch knew he had to do something he never meant for his short paper to be used as a tool for prosecution. The whole point of his paper was to help parents, not criminalize them. Dr. Kelch continued to fight for wrongfully convicted parents and caregivers up until he died in 2016 at the ripe age of one hundred and one years old. No one was really suggesting that this should be a mechanism for prosecuting anyone. They acknowledged and pretty clearly articulated that what they were talking about was a hypothesis about why children might have these findings.

But it then started to be used as a paradigm for prosecution. And that's really where it runs into trouble, because instead of continuing to research and look for answers, physicians and prosecutors started to accept it without looking further into the kinds of claims that experts were making about it. Today on our show, we're speaking with Kate Judson.

Kate is the executive director for the Center for Integrity and Forensic Sciences. And she was one of the lawyers who represented Stephanie Spurgeon, whose story we discussed at the beginning of our show. So to start, tell us about what we should understand about the difference between shaken baby syndrome as a hypothesis rather than as a diagnosis. I think there are a lot of ways in which it differs significantly from other medical diagnoses, so child abuse and particularly shaken baby syndrome is much more determination of etiology of how somebody got the medical findings then than the medical findings themselves.

So the kinds of findings that are often attributed to child abuse in shaken baby syndrome and abusive head trauma cases can be due to trauma, but it isn't always so. There are medical conditions that can cause these kinds of medical findings as well. And so sometimes the evidence of actual innocence is new medical opinions that support the idea that the child had a disease or another kind of condition that led to their medical findings rather than any kind of trauma or abuse.

So let's back up for a second to when this first started to be used at trial. How did this diagnosis become something that prosecutors were able to weaponize against defendants? Part of what makes it so seductive if you're trying to protect children and punish wrongdoing is that it seemed at the time very definitive. Physicians were saying if a child has this set of injuries, they have been abused and that abuse consisted of shaking. And we know that. And there are no exceptions or very, very few exceptions.

I mean, in fact, at the time, there are plenty of transcripts available where physicians said nothing else causes this. Right. And so it gives a very clear and definitive answer. No one has to wonder in the face of such an answer, what happened to a child who died who previously would have no explanation for their death. It's definitive. It's clear and frankly, really effective in court, often resulting in a conviction almost all the time.

So I think that it gave people who were involved in the criminal legal system the impression that they were successfully locking up people who were dangerous, who had murdered a child. And it turns out it's not that straightforward.

So tell us more about other ways a child can come to have the same kind of symptoms or the same sort of trauma that are usually associated with shaken baby syndrome. There are things like infection, serious infection, genetic disorders, problems with blood clotting, certain kinds of tumors, certain kinds of blood clots like a pediatric stroke. There are cases where the medical findings are thought to have arisen after events like choking. But but what really started to come to light in twenty sixteen, there was a report done by the Swedish government that looked at medical literature that discussed what is colloquially called the triad, that the combination of subdural hematoma, retinal hemorrhage and cerebral edema and looked at children who are diagnosed and studies of children who are diagnosed as being abused based on those findings.

What they found was that the the data was not there, that it was very incomplete. And they recommended that the Swedish government no longer prosecute people under that paradigm. And the reaction that that got from child advocates and child abuse pediatricians was simply to attack the people who did the report. There's been a real lack of serious engagement around the failings in the literature that everybody knows are there. And so that is really a shame. And that's not how science progresses and that's not how people get fair trials.

People who who are admirably concerned about protecting children have unfortunately written things like editorials and in journals, engaging in personal attacks instead of trying to figure out how to best approach these kinds of cases.

And that's part of what makes studying and being critical of the shaken baby hypothesis really difficult. People often assume that critics of shaken baby syndrome are trying to side with child abusers. And of course, that's not the case. Researchers, doctors, lawyers who are critical of shaken baby syndrome are just trying to make sure that people don't get accused of crimes they didn't commit based on misleading evidence. And on the other side of this battle, there are well-meaning people who are trying to protect children from abuse.

I know that expert witnesses in cases involving child abuse are often doctors. So tell us more about that. Who were the doctors who testified during these cases for the prosecution as experts? So there are different kinds of physicians, they're not always child abuse pediatricians, but they frequently are child abuse pediatricians. There are about three hundred child abuse pediatricians in the United States. It's a new subspecialty. I believe the first child abuse pediatricians were board certified in 2011.

So it's quite new. So their job is to evaluate children in hospitals or clinics for child abuse and, yes, to testify in cases or to create reports for law enforcement agencies or the courts.

So that's interesting. I guess talking about biases, I could imagine that someone who's trained to look for child abuse could just start seeing abuse everywhere. It's what they know. It's what they study. It's what they look for. They think this is a symptom that comes up with people who are victims of abuse. So it must be abused. It becomes difficult to see outside of your own tunnel vision. And so when a medical specialty is geared directly toward one conclusion or looking out for one thing, of course, even with the best of intentions, it could be easy for these doctors to get tunnel vision right.

That's a real concern when analysts are, for example, embedded with law enforcement, when the crime lab is part of the police department, for example, we see this role affects bias. Analysts start to see themselves as part of the law enforcement team rather than as an objective independent scientist. But the same issue was present when child abuse pediatricians are part of a child abuse team, especially when those teams involve police and investigators and prosecutors and don't involve people, for example, from the defense bar.

And since they're all human beings, it's not unreasonable to say that the same concerns we have about analysts housed within a police station or who work very closely with police and prosecutors, that other kinds of experts might be subject to those same biases.

I think another reason that there are so many wrongful convictions when people are accused of abuse is that everybody involved, jurors, lawyers, the doctors, they don't want to get it wrong because let's just face it, setting a potential child abuser free is a scary proposition. The stakes are very high in these cases. So really often I hear people respond to these concerns, particularly people who are who are working in the child abuse field, respond to these concerns about wrongful convictions by saying, well, we just want to air on the side of the child.

Right. But in these kinds of cases, there's really no way to do that. Any error is harmful. This idea that you can air safely on the side of the child is a false one. And that's because if you get this wrong, if a child is being diagnosed as having or being determined to have been abused and they haven't been, a couple of things can happen. One is that a child can be deprived of a loving home and separated from loving parents and caregivers.

And studies have shown over and over and over again that separating children from their family is traumatic.

It is sometimes unnecessary harm, but it is always harmful even for people who are just accused of child abuse and they don't get convicted but just have to go through the trial. That in itself can be so damaging to children and their families. I mean, it's anecdotal, but I'm pretty frequently here from families who say, like, we're really grateful that nobody in our family was convicted, but our kids are still suffering all kinds of harm and problems from the trauma that was inflicted upon them just from even a brief separation.

So there may very well be good reason reasons to separate families. But what we can't do is go to court and say that the abuse is more definitive than the science actually supports it. That makes sense. The other problem is that when these cases are not medically investigated carefully, there is the chance that a child will be classified as having been abused when they actually have a serious illness. And that is also really problematic and can potentially lead to more harm or even death because of that misdiagnosis.

It seems almost unlikely that evidence in child abuse cases can be similar to other forensic disciplines that we've talked about on our show. But it turns out that the same tactics used to convict people based on faulty pattern matching evidence, for example, is really the same thing we're dealing with here in instances of alleged child abuse, the kind of biases that we see in other kinds of forensic sciences are certainly present here.

And because there is no gold standard criteria, no simple or single test that allows anybody to make a diagnosis of child abuse, you end up having to fall back on so much subjectivity of the person examining the child and looking at the facts and what we know from pattern matching disciplines in particular, but also things like arson investigation, is that the more subjectivity that is introduced into the system, the less reliable your result can be. Sometimes when you look at the breakdown of cases where people get wrongfully convicted based on faulty forensic science and a majority of them, part of the faulty forensic science is that the expert spoke to the jury with more certainty than the science warranted.

The same is true in cases with medical testimony. So when a doctor says that a fracture or a subdural hematoma or a retinal hemorrhage can only be caused by child abuse, and there's no other explanation that is definitive. It is convincing. That is stated with more certainty than the science can support. And that can certainly lead to an unfair trial in a wrongful conviction. So in your opinion, when something as tragic as a baby dying happens, what can we do to make sure that the cause of death is determined correctly so that parents and caretakers stop being wrongfully accused based on this shaken baby hypothesis?

There really should be really rigorous testing in all of these cases, and not not every case out there gets the benefit of really careful, comprehensive testing.

There's there's actually kind of a famous case that a district attorney from Queens has used in a bunch of presentations where there was a videotaped fall, a child fell at a mall and off of just a really short fall off of a piece of playground equipment and later died. And investigators embarked upon an extremely complex and comprehensive medical evaluation. And when they did that, they found that there were potentially some blood disorders lurking within the family. And while the child who died never definitively tested positive for a bleeding disorder, her parents were carrying genes that suggested that she may have had one that may have contributed to her death.

But I have to tell you that it's uncommon that that kind of testing is done. I have seen it become more common and hopefully it will continue to become more common. But that's just a great example of a really thorough evaluation, clarifying that a deceased child died because of a tragic accident, not because anybody hurt her.

When I think about people convicted based on this type of evidence, it's usually apparent that we're talking about someone who has just lost their child is going through this unimaginable tragedy and then to be accused of being the one that actually inflicted this harm. It's a lot to wrap your head around. It's like too much to bear. For parents who go through this, they have a double tragedy, right, they they have the loss of the life or health of their child, which is incredibly tragic.

And then they have this prosecution, which threatens their freedom, often threatens their relationship with their other children. In some of these cases, parents might lose custody of other children in the family. It's horrifying. It's horrifying. As a lawyer, too, it it must be difficult to be watching this unfold. Yeah, it's an incredibly emotional situation, and in fact, there are some lawyers who find these cases so disturbing and disruptive that they do want and they never want to do another one.

You do hear about that happening. I mean, it's not easy. It's always difficult. They are very emotional. They are very upsetting. It it is difficult to be there for someone who has gone through, like like I said, this double tragedy, right. Where a child that, you know, that they loved and cared about is gone or very or very different. And then they've they've been accused of this crime they didn't commit. It's it's it's terrible.

I think the only reason why I feel compelled to keep doing it is that what has happened to these folks is wrong and someone has to help them and stand up for them. It's not an easy thing, but I think it's a necessary one. When I agreed to host this podcast, I set out to expose some of the many flaws that exist in our criminal justice system, specifically what I wanted to do was address what goes wrong when jurors are presented with what they are told is science, but actually turns out to be, well, junk.

The harms of junk science go beyond innocent people having to endure the unthinkable nightmare of being accused and convicted of crimes they did not commit. The consequences extend even further than those people having to endure the rawest and most cutting of human suffering being torn from their life and locked in a cage, in addition to that human tragedy, junk science causes the moral fabric of our judicial system to wear and tear at the seams. It causes an entire institution of law and order and justice to be completely undermined.

In examining the various disciplines of forensic science we've discussed this season, whether it was arson or blood spatter, eyewitness identification, or as in this episode, shaken baby syndrome, I knew it would be interesting, enlightening, but I never expected it to affect me in the profound manner that it has.

I have been in turns dumbfounded, angry, saddened and even outraged. A trial is supposed to be a search for the truth. The word science itself is defined as the study of the physical and natural world through observation and experiment.

Our system of justice has been regarded as not perfect, but the best way to ensure the people who are accused of crimes get the fairest shake possible. So how is our system of justice veered so far off the tracks, how have we managed to bastardise and bludgeon what science means? I don't know if we can ever arrive at a clear answer. There are probably many explanations. One thing I do know is that when human beings get involved in any endeavor, we bring our own biases, our thirst for financial gain or hunches and quirks into the equation.

And in the process, we sometimes create such a mess that it becomes difficult to untangle the hows and whys of it all.

But I still managed to find hope and a way forward, and here's why. If you've ever been fortunate enough to meet someone that has spent time in prison for a crime they didn't commit, one thing becomes apparent very quickly. They are the embodiment of all that is soaring and remarkable about the human condition. They are a special combination of resilience, hope, forgiveness and strength. They are quite simply a force of nature. So I will continue to pour my energy, every cell in my body into helping those who are still behind bars for crimes they did not commit.

I will fight to restore science to its proper definition in our courtrooms. I am propelled by these men and women that represent the triumph of the human soul to restore one's life. And freedom is perhaps the highest service to your fellow human being. I can't even find the words to describe what it's like to walk someone out of a nightmare of a prison cell and into the bright lights of freedom. To restore a life, the only way I can articulate it is that aside from marrying my wife and the birth of my children, it is and always will be my most important contribution to my fellow human beings.

There is nothing I have done in this life or could ever fathom doing that can ever come close. No material gain, no drug, no drink, nothing at all that can approach the state of nirvana that consumes your soul when you have helped save a life. And I think that says a lot about who we are at our essence. We are meant to be of service to one another, to heal each other, to restore each other. Not a bad message if I do say so myself at a time when it seems like we could really use it.

I encourage all of you to continue to keep your voices up, write those letters to your local prosecutors and judges, be a more conscientious juror, pitchin in any way that you can. Together, we can ensure that one day there will be no more wrongful convictions based on junk science.

Wrongful conviction junk science is a production of Lovaas for Good Podcast's in association with Signal Company No one expects, thanks to our executive producer Jason Flom and the team at Signal Company No. One, executive producer, Kevin Mortise and senior producers Capricorn Habour and Brett Spangler. Our music was composed by DJ Ralph. You can follow me on Instagram and Doob and Josh follow the wrongful conviction podcast on Facebook and on Instagram at wrongful conviction and on Twitter at wrongful conviction.

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