The below is a transcript of notes taken from the shaken baby conference. The verbatim notes were taken by an American lawyer and have been sworn before a judge as a true and accurate account of what was said on the day. Here you have a then serving police officer who headed up a unit investigating child deaths talking about how to influence the outcome of trials. This is the same police officer who reported Dr Waney Squier to the GMC, with vigour once they found out that we knew what had been said.
Eleventh International Conference on
Shaken Baby Syndrome/Abusive Head Trauma
Sponsored by the National Center on Shaken Baby Syndrome
A National Co-ordinated Approach to Cases of
Non-Accidental Head Injury in the UK
September 13, 2010
Colin Welsh, Detective Inspector (Stratford, UK)
Dave Marshall, Detectived Chief Inspector (Startford UK)
Walsh: New Scotland Yard lead investigator for child abuse homicide, also associated with Stratford. Spent 4 years investigating child abuse in 1990. In command since 2002; investigating child abuse homicides since 2005.
Marshall:, not present; recession cutbacks; due to retire, took pension. Is now child abuse investigator consultant.
Wheeler: present but didn’t present. New Scotland Yard, 10 years on International Advisory Board (National Center on Shaken Baby Syndrome) with Carole Jenny; privileged to work with people like that
Two (police) representatives from out of country: Chris from Australia New South Wales; Jenkins from Christchurch, New Zealand.
Theme: What we are doing to improve outcomes in prosecutions of these cases?
Pediatric Inflicted Head Injury (term used in U.K.), more descriptive; doesn’t mean anything different than SBS or AHT.
2008 to 2009: dire straits in investigations—very bad results in criminal courts.
In each part (of U.K.) no consistency. Different police officers, prosecution investigators, judges. No communication, sharing of information on good practice
3 examples (showed newspaper clippings)
1. Man charged with murder of 18-month-old daughter, typical triad case + numerous abusive fractures. Didn’t catch name; article mentioned tears of relief, 2009.
2. O’Toole 11-month-old son but _____ to triad. Report from someone described as reputed biomechanical expert from U.S. Judge agreed with him.
3. Chronicle. Mother acquitted of shaking baby, another 11-month-old son, 2 other kids
Pure triad, no other injuries but circumstantial evidence. She provided first account, a lie, not where she said she was, CCTV showed she was somewhere else. Note in purse had mantra, do not lose temper with family, treat husband and kids well.
First story, 8-mo-old was pulling up, fell back (sofa?) and hit head; 2nd but different account to ambulance, he pulled up, was walking along wall and fell back.
Why this result? Two trials. First trial, Old Bailey, Nov. 2008. Jury couldn’t reach verdict
Legally no evidence mother intended to kill, so charge reduced to manslaughter [per judge?]. Retrial July 2009. At end of evidence, judge ordered jury to acquit. Article in Chronicle; reporter is Aldan Badredge (?).
Wide consequences for all U.K. shaken baby cases. Article said CPS plans to review all cases in light of ruling; same for prosecution.
Judge said lack of evidence of the source of the hemorrhage precludes finding that the SDH had non-accidental rather than accidental cause. Walsh said he’d never heard of a venogram before that; police/prosecution didn’t prove where the SDH originated.
Judge took note of one defense expert over many prosecution experts; said if you can’t prove where the blood came from, you can’t prove shaken baby. Judge had no experience in these cases.
This was a systemic failure in the prosecution of shaken baby cases.
Phil Wheller had previously tried to do something (organizational). Question was what could we do? We could share experience and information, better practices, coordinate.
HOW COULD MY TEAM INFLUENCE NATIONAL OUTCOMES?
Scotland Yard 7.5 million people in his jurisdiction.
Only team dedicated to child deaths, 6 years.
Developed protocol from SUDI cases.
Risk assessment to help district ——- risk factors at early stage
In six years, investigated 37 homicides and 50+ ? suspicious child deaths
Felt well placed to influence situation
Multi-disciplinary meeting at New Scotland Yard, London
Present: police, Crown Prosecution Service, lead and junior prosecution counsel, lead medical experts in pathology, pediatrics, ophthalmology, head of homicide section.
Decided to discuss situation, identify main problems, and some solutions.
TOP OF LIST WAS
1. Defense expert testimony
Same handful of experts showing up at trial, role was to confuse jury with complexity of science and provide alternatives without explaining why the child died. Approach:
a. Question everything, qualifications, employment history, testimony, research papers presented by these experts, go to their bodies to see if we can turn up anything unusual. Previously unusual to object to testimony? no longer. Collect reports and evidence for previous cases. Go through with fine tooth comb. If suggest rare brain condition, then find out if made same suggestions in last five trials, maybe not as rare.
b. Talk to officers in previous cases. List any weaknesses and exploit them. Garrett Dermott staff attorney at National Center (on Shaken Baby Syndome) helped me out in most recent case. Had US expert, Dermott provided whole host of transcripts, gave to prosecution service, they gave to prosecution counsel. Defense withdrew him as a witness without explanation.
c. Research paperS by witness. They attempt to bandy about “peer reviewed”,. What does that mean? Reviewed by defense witnesses in same case or earlier trial. Always get full articles, used abstracts before, juries can be seriously misled.
d. Research papers of others—defense witnesses suddenly produce research papers not previously produced. By then prosecution case is closed, isn’t usually an opportunity to rebut evidence. Have to recall witnesses who may have to travel or may be unavailable.
SOLUTION: Maintain up-to-date police or CPS reference library including new articles. No surprises during trial. Rebut defense research materials. Make sure judge makes a ruling. Make sure that agreed research material before trial, need good reason to add. For every research paper presented, numerous other papers will rebut. Ensure prosecution experts aware so they can rebut before trial.
2. Judicial inexperience
HOW DO YOU INFLUENCE JUDGES
a. Make formal complaint. Felt that was inappropriate (would put backs up), wouldn’t listen to copper.
b. So deal by back door. Prosecution counsel quite willing to take forward, had contact outside of trial with judges. Raise concerns by police prosecution experts (will see if that worked).
c. Judges deal with one to two criminal cases like this in career, but in family court judges deal day in day out. Police and prosecutors realize the family court judges are far more experienced and competent than the criminal court judges. So question to prosecutors, would it be possible to cross over juries from family to criminal court?
Referred to earlier keynote talk. Media bias came up. They just want newsworthy stories. They don’t want to hear “convicted”, they want to hear “wrongly convicted.”
Perception with public that (people) wrongly accused. [Defense experts?] obviously had links with media and journalists who want to sell papers, sensationalized.
Quite difficult but some things —- :
#1 in past, prosecution (experts?) did not talk to journalists
#2 but because of developing situation, decided things would change, would be interviewed by journalists to give prosecution’s side.
#3 police to seek maximum publicity for conviction and that shaking undoubtedly causes injuries and in some cases death
#4 biomechanics. Do not meet expert with expert. Use robust cross-exam on biofidelity, variability, beware of experiments. From now on, do not instruct biomechanical experts. Deal in a different way. Concentrate on biofidelity of dolls, CRABBI dummies.
Defense use more radical experts from US. They do video live so dummy is not in court, so we got hold of CRABBI dummy. We give to jury, unzip the back, show jury how this set of metal rods and plastic is supposed to represent the intricate nature of a child’s spine and brain. Quite effective.
Same biomechanical expert from U.S. appeared in case Experiment had no resemblance to how the child (sustained?) injury. Defendant didn’t give (expert) full information. Made to look foolish. Powerful for jury.
#5 confession evidence. Problems with confession evidence – defense says shouldn’t be used from countries where plea bargain is common. In U.K. no plea bargain system. Will commission academics to interview people convicted and serving or having served (sentence). Don’t know if this will help.
Pediatrics Aug 9, 2009 retrospective from France. 29 cases of admissions. She includes quotes from admissions (very effective, very strong).
3. Other initiative (outside the team) — any other initiative to improve outcomes?
Recent legislation in UK (2009) paragraph 11.2(1) re contempt of court – family law information can be given to child protection and police so can now use information from family court. Family court involved if child survives or has surviving siblings. At end, judge usually makes lengthy written judgment—very interesting to him. After the legislation, got hold of judgment in some cases, he or colleagues had dealt with.
Excerpt from Mrs. Justice King’s 2009 opinion on falling into category of witness with scientific prejudice. Experts A and B.
Hedley 2009 re forces required to produce triad and skepticism of shaking mechanism. Expert A
Pauffley 2009 2 cases, not interested in mechanism of fall? Experts A & B
WHAT TO DO? WHAT CAN WE DO?
Absolutely nothing. Family court operates on balance of probabilities. Tried to get the quotes admitted in criminal court cases, ruled inadmissible, also too prejudicial.
But all was not lost. Mr. Edward Brown Q.C. quoted, ?? to review (cases) up and down country. Found at least 4 cases going to court of appeals, all very similar. On basis of 2005, 2006 UK review. Walsh decided it might be helpful if cases put together before same panel of judges rather than different judges. Talked to Crown Prosecution, people at the top. Court of Appeals agreed to hear all four together: Henderson, Burridge?, Oye? one other. Burridge immediately withdrew appeal, left with three cases. Burridge might still be heard.
Oye, one of my cases, prosecuted 2007, life in prison. Court sat on those cases March of this year.
ONE OF PANEL WAS FAMILY HIGH COURT JUDGE, so message got through via back door as we said.
Two cases upheld, Butler not safe. Not on evidence but original trial judge didn’t sum up correctly. Released on technicality, was about at end of sentence.
Appeal court judges didn’t think they could be prejudiced by reading the family court opinions so they read them. On basis of what they read, they took action.
Dr. A wanted to give evidence, panel tried to persuade her from going forward based on what he read. Moses, Rafferty and Hedley (judges) – quoted from decision. Cast doubt on her evidence, prepared to maintain an unsubstantiated theory. That was the effect of the information Walsh reviewed.
—— ——– tell court of this witness. That can now be used in every case in which she gives evidence. Published June 17.
Walsh was in middle of 9-week trial in Old Bailey. Baby —– case. Last two years re-investigated. Since then, matter of course to ask prior to trial and serve order on police on all doctors who are about to give evidence as experts or on their fitness to practice. Government served order. I (Walsh) was quite pleased I was served. Re Dr. A: had to inform GMC of Court of Appeals and family (orders). Dr. A and B now waiting on fitness to practice. May be struck off, possibility they will be struck off.
Question from Carole Jenny: hasn’t A already been struck off?
Walsh: No. Some terms on B.
BIOMECHANICS. Oyederiam (?) — leading biomechanician for defense. Court said nothing we heard from C led us to take different view than in Harris. In Harris, conflicting evidence on biomechanical, court said biomechanical evidence complex, developing, and as yet necessarily uncertain.
#6 Last initiative: Partnership with Great Ormond Street Hospital in London. All transferred to GOSH. Standardized tests. Forensic pediatric pathologist, neuropathologist in conjunction. Full evidence report ——-? CT, 3D etc. Model for rest of UK.
One stop shop for expertise. Efficiency. Won’t overburden other experts, just use other experts to sort out disagreements. Get new consultants, not now involved. Try to get new doctors on board (having trouble doing that).
3D graphics. Visuals are necessary for successful prosecutions. Get more sophisticated in approach. Link with University College London can make 3D models of injury. Hold in hand, give to jury to handle and then farm out to other Children’s hospitals in UK.
He showed example of 2D graphics that they use in court (showed blood on back of head, not sure what this was supposed to represent, blood in circle or subgaleal? looked bloody). 3D, gave some skull pictures generic images to give some idea. Skull fly thru, pretty powerful (these looked very gruesome, Halloween like skulls). Jury will warm to this, will help them make decisions.
National coordinated approach: how to get to rest of country.
—— with Association of Police Officers homicide child death working group. Good model will be circulated.
NPIA responsible for improving performance, ? is in group. Four day course for officers, two days for first responders, two days for investigators— will be discussed. All register with National Improvement Agency, one of us on call to offer advice to senior investigating officers.
Has this approach worked? Only time will tell but signs are pretty encouraging.
• February 2010 murder life imprisonment.
• April 2010 2.5 years manslaughter, light because defendant only 16 years old
• May 6, manslaughter, 5 years.
• May 2010, Bobby (Louch?) mother-son, life for mother.
Number of excellent results but can’t be complacent
Another case: Old Bailey, grievous bodily harm, multiple fractures, 2 brain injuries, ribs on twin sister. He was a paramedic, convicted of grievous bodily harm but not murder. Can’t be complacent. Can’t find out from jury why, but on very good authority, jury didn’t convict because didn’t believe he intended to kill the child.
Question from Carol Jenny: Understood court affirmed in 2005 that triad is real, expected to rule out other causes but said shaking can cause triad. Why doing this again?
Walsh: because some members of judiciary have very short memories. Judge in Harris realized later made wrong decision.
Question from audience: Most approaches are how to deal with defense rather than how can we present our case better, working with hospital, gathering and preserving evidence. How much focus in that direction rather than this direction – defense is doing such a good job, how to get rid of their good job?
Walsh: We’re confident we have a pretty good model, six years experience, problems are at trial, complaint, simple fact juries were being confused by defense witnesses so had to deal with this. This was TOP OF LIST, not just the police, others too, prosecution had to deal