California Criminal Lawyer Blog

Shaken Baby Syndrome - A Flawed Theory?

New medical evidence highlighted in a BBC television programme could clear childminder Keran Henderson, who is serving a three-year prison sentence after being convicted of shaking an 11-month-old girl to death.

A mother-of-two and a former Scout leader, Keran, 43, has always insisted she did not harm Maeve Sheppard.

But the jury at her trial last November heard a succession of expert witnesses swear that Maeve suffered injuries to her brain and bleeding in the eyes indicating shaken baby syndrome.

There is already deep disquiet about the case. Two jurors said they believe there was a miscarriage of justice.

A prosecution witness also expressed doubts and Keran's husband Iain, a former policeman of Iver Heath, in Buckinghamshire, wrote in The Mail on Sunday last month that the conviction relied solely on the conflicting views of paid "experts".

But a BBC investigation revealed new research that suggests the science behind shaken baby syndrome is flawed and that the 15-20 convictions every year in the U.K. involving the diagnosis may be unsafe.

The prevailing-wisdom is that the syndrome is proved by a "triad" of symptoms including brain swelling and bleeding to the retina and the surface of the brain.

But BBC reporter John Sweeney has spoken to experts in the U.S. whose new research could demolish the basis for the diagnosis.

Dr Chris Van Ee, professor of biomechanics at Wayne State University in Detroit, claims tests with crash dummies and corpses show that falling off a sofa does far more damage than shaking.

He showed the BBC a test in which a dummy representing a one-year-old child generated a force of 109 times the acceleration due to gravity when dropped from a sofa on to its head.

When Sweeney shook a dummy the force was only 7G, less than a pillow fight.

Dr Van Ee said: "10Gs is a rocket launch, and here we have 110Gs for a fall off the sofa. That could be a fatal impact.

"Shaken baby syndrome is fundamentally flawed from a biomechanics perspective."

Meanwhile, North Carolina pathologist Dr Pat Lantz found retinal bleeding in the eyes of one in six corpses he studied.

This suggests that bleeds in the eye are more common than thought and therefore can't be proof of shaken baby syndrome.

Some medics suggest retinal bleeding can be due to attempts to resuscitate. Keran tried to give Maeve mouth-to-mouth.

The scientific doubts will be the basis for an appeal against Keran's conviction - and potentially for dozens more appeals.

But the challenge will be fiercely resisted by Maeve's heartbroken parents Mark and Ruth, who have two surviving children.

Mr Sheppard said: "We got what we thought was a fair verdict. We have a little girl who points up to our photographs and says "Who's that?" and we tell her it's Maeve.

"In 18 months, Keran Henderson will go home to a loving husband and two loving children - I will never have Maeve back."

Continue reading "SHAKEN BABY SYDROME DEBUNKED BY US RESEARCHERS" »

LINGERING DOUBT AND EVIDENCE THAT THE DEFENDANT WAS NOT THE SHOOTER

The California Supreme Court previously reversed this death case solely on penalty.

At the retrial, the trial judge took the position that since the jury had found the defendant guilty and found a personal use of a firearm true, the jury had found that the defendant must have been the shooter. The retrial judge thus barred any evidence that the defendant wasn't the shooter, even though the defense had lots of evidence that the former co-defendant was
the actual shooter.

The California Supreme Court reversed. They restate the principle of lingering doubt and hold that the defense has the right to present evidence casting doubt on the defendant's role. There is a concurring opinion saying that a case to the contrary has been effectively overruled.

People v. Gay; 2008 DJ DAR 3805; DJ, 3/21/08; Cal. Supremes

Continue reading "CALIFORNIA DEATH PENALTY REVERSED FOR RIGHT TO USE "LINGERING DOUBT" EVIDENCE" »

A group of judges in New Hampshire was served several alcoholic drinks as part of an experiment that was intended to demonstrate the effectiveness of the Breathalyzer. One judge was given so many drinks that he became visibly intoxicated. When the judge blew into the Breathalyzer, the machine registered a score of 0.0. After a few more tries, the Breathalyzer gave the same result. Following the demonstration, at least one police jurisdiction in the state ceased using the Breathalyzer in favor of blood tests. (See Margaret Graham Tebo, New Test for DUI Defense, ABA Journal (Feb. 2005).)

The Breathalyzer is by far a less accurate test than a blood test. A blood test actually measures blood alcohol concentration (BAC). But a Breathalyzer merely estimates it. It measures "breath" alcohol concentration, and requires a difficult mathmatical conversion to correlate it to a "blood" alcohol concentration.

What the Breathalyzer attempts to measure is the presence of chemicals found in alcohol. But the machine often measures chemicals with molecular structures similar to those found in alcohol. There are, in fact, there are numerous chemical compounds that can fool a Breathalyzer machine.

According to Dr. David Hanson, Over 100 compounds can be found in the human breath at any one time, and 70 to 80 percent of them contain [a] methyl group structure and will be incorrectly detected as ethyl alcohol. (See David Hanson, Ph.D., Breath Analyzer Accuracy, at http://www2.potsdam.edu/hansondj/DrivingIssues/1055505643.html.) As a result, false positives can occur for a plethora of reasons.

Body chemistry is one factor that can lead to false positives. People with diabetes, acid reflux disease, or some cancers can fail Breathalyzer tests even if their bloodstreams are perfectly free of alcohol. Diabetics, for example, have extraordinarily high levels of acetone, a substance that some breath machines mistake for ethyl alcohol.

Police recognize that regurgitation can render unreliable the results of a Breathalyzer. Thus, most departments require that the arresting officer observe the subject of a breath test for a period of time prior to administerting the test. In California, police should watch the suspect for at least fifteen minutes to make sure he or she did not burp, hiccup or regurgitate prior to applying the test. Regurgitation includes any instance of fluids or gases that rise through the esophagus.

In 2004, the Illinois Supreme Court ruled inadmissible the results of a breath test where the defendant presented evidence of gastroesophageal reflux disease (GERD). In People v. Bonutti, 817 N.E.2d 489 (Ill. 2004), the defendant had blown a BAC of 0.174 after being stopped and showing outward signs of intoxication. Defendants motion to suppress the Breathalyzer evidence was granted because the court found that the results could have been compromised by a silent, unobservable episode of reflux.

Two years ago, when I attended the Intox 8000 Certification seminar in New Orleans (the San Diego Police Department had just implemented the machine), I was able to get a Fort Lauderdale judge who was acting as a guinney pig for us to blow a .20 breath alcohol level using the Intox 8000 machine. His true blood alcohol level at the time was .02 (he had one drink in him). I got the machine to measure a breath alcohol concentration of ten times the actual true blood alcohol level. How? I just manipulated the machine and the judge's breathing techniques.

If you think I can do this, imagine the flawed results an inexperienced cop might use against you?

Continue reading "SAN DIEGO DUI DEFENSE: BREATHALYZER TESTS ARE AN INACCURATE MEASUREMENT OF BLOOD ALCOHOL CONTENT" »

The co-defendant testified at the suppression motion (Penal Code sec. 1538.5), to facts which would have made the police search illegal.

But the co-defendant refused to answer some things on cross examination.

The Court of Appeal says that striking the co-defendant's testimony was the correct sanction here.

Funny how they don't want to do that when the DA's witness (usually the cop) refuses to answer our questions in cross.

People v. Seminoff; 2008 DJ DAR 1613; DJ, 1/31/08; C/A 4th

Continue reading "CALIFORNIA CRIMINAL LAWYER NEWS: REFUSING TO ANSWER QUESTIONS DURING CROSS EXAMINATION" »

This case could conceivably become one of the most widely read cases in California. It's crazy. It's juicy. It's XXX-Rated. It's really, really weird.

The Court of Appeal begins by saying, "This is not your garden variety kidnapping and rape case." No kidding.

The victim, Jane Doe, started getting threatening letters, saying the writer of the letters would "fuck up" the victim's family if she didn't comply. With what? With engaging in a truly staggering array of sexual acts with Michael, a co-worker.

Michael claimed he was getting similar letters. Michael told Jane that Tiffany, another coworker, was writing these letters, that Tiffany was psycho, and that they had to comply to avoid having Jane's family being hurt.

Over a seven-month period, and that's not a typo, Jane submitted to a variety of sexual acts with Michael, many of them videotaped (so Tiffany could be sure that Jane was complying,
see?).

The footnotes quoting the letters are beyond X-rated; the funniest part is where the letters say that Jane should make the sex more romantic.

Finally Michael went on vacation, Jane went to the police, and the police immediately realized that Michael was sending the letters. He of course copped out.

The issue is whether there's enough evidence for kidnapping for rape. Yep, the court says there was sufficient movement, since Michael took Jane to the parking lot of a nearby cemetery to engage in many of the sexual acts.

A cemetery parking lot? This guy really was romantic.

People v. Power; 2008 DJ DAR 1036; DJ, 1/23/08; C/A 4th

Continue reading "CALIFORNIA CRIMINAL DEFENSE LAWYER NEWS: THE MOST BIZAARE KIDNAPPING FOR RAPE CASE - EVER" »

The California Fourth District Court of Appeal holds in this bizaare case that it was not error to strike the defendant's testimony at a suppression hearing where the prosecutor on cross examination went into the merits of the case, not just the search issue, as to how the defendant came to know about the marijuana and what she intended to do with it because it was relevant to her credibility on the suppression motion.

The defense counsel invoked the Fifth Amendment on cross examination, so the trial court struck her testimony. No alternative to striking the testimony was offered by the defense.

People v. Seminoff, 2008 Cal. App. LEXIS 144 (4th Dist. January 29, 2008):

The prosecutor then asked her if she intended to sell the marijuana, and that prompted the same objection from defense counsel. Again, the court overruled the objection. It warned defense counsel that unless Bassett answered the prosecutor's questions, the court would strike her testimony in its entirety. The court then took a short break to allow defense counsel to converse with Bassett.

When the hearing resumed, defense counsel said Basset was willing to proceed with cross-examination on a question-by-question basis. He also indicated that, based on the court's previous rulings, she was willing to answer questions about whether she intended to sell the marijuana.

However, when the prosecutor asked her that question, defense counsel objected on both relevancy and Fifth Amendment grounds. In overruling the objections, the court stated “cross-examination should be allowed to reveal whether or not, among other things, [Bassett] has a coherent credible story about the events involved, whether or not she can remember details, whether or not she has an interest in the outcome.”

The court also told defense counsel that if Bassett continued to invoke her privilege against self-incrimination, it would have no choice but to strike her testimony. When defense counsel responded that Bassett was not going to answer the prosecutor's questions about the marijuana, the court did just that.

Comment: This case does not even cite Simmons that a defendant's testimony at a suppression hearing cannot be used at the trial unless the defendant testifies contrary to it. Here, the trial judge told the defendant that her testimony could be used against her at trial. This case is strange and unsupported under the Fifth and Fourth Amendments, and should be reviewed by the California Supreme Court.

But it won't. It should, at least, be depublished.

Continue reading "CALIFORNIA CRIMINAL DEFENSE NEWS: FOURTH DISTRICT COURT OF APPEAL STRIKES DEFENDANT'S TESTIMONY AT SUPPRESSION MOTION AFTER TELLING DEFENDANT IT CAN BE USED AGAINST HIM AT TRIAL: SAY WHAT?" »

I can't help but laugh when I review Los Angeles Public Defender Al Menaster's commentary on new California criminal cases. Here's the newest comenatry on People v. Hua, which I posted earlier in the week. Clikc HERE to see that post.

Menaster's commentary:

In Welsh v. Wisconsin (466 US 740), the US Supremes held that the exigency exception to the requirement that the police have a warrant in order to enter a home applies only where the crime being investigated isn't minor.

In Welsh, the crime was driving under the influence; the US Supremes held that this crime was too minor to permit invasion of a home without a warrant.

Of course, the Cal. Supremes upheld entry of a home based on exigent circumstances for a DUI, saying that in Cal., a DUI was so much more serious than a DUI in Wisconsin. Right...

Anyway, this case involves a police entry into a home to investigate the serious crime of, drum roll please, possession of less than one ounce of marijuana. Even this C/A can't stomach this one. They apply Welsh and hold that the entry can't be justified by exigent circumstances.

People v. Hua; 2008 DJ DAR 409; DJ, 1/14/08; C/A 1st

IT DOESN'T TAKE MUCH TO PROVE YOU ARE A MEMBER OF A GANG

Evidence of tattoos on the defendant's head, and admissions to police, were sufficient for the jury to find active membership in a gang. The fact that the robbery was committed with another gang member was sufficient to prove the robbery was committed "in association with" the gang.

People v. Martinez (C.A. 4th, 1/15/08, G038150) 08 C.D.O.S. 614

Continue reading "CALIFORNIA GANGS:WHAT IS SUFFICIENT EVIDENCE TO PROVE MEMBERSHIP?" »

The Court of Appeal here admits that the reliance by the trial court about facts relating to the crime as the justification for imposition of the upper term in prison violated Cunningham (127 S.Ct. 856), since those facts weren't found true by the jury.

They then find harmless error. How? Well there was all this evidence in support of the aggravating factors found by the judge. This is just so, so wrong. If the judge denies a
defendant a jury trial, can the resulting conviction be affirmed on the basis that the evidence was so overwhelming that a jury would have convicted anyway? Wrong.

People v. Curry; 2008 DJ DAR 201; DJ, 1/9/08; C/A 3rd

Continue reading "CALIFORNIA COURT OF APPEAL HOLDS CUNNINHAM ERROR IS HARMLESS" »

The two defendants in this case both invoked Miranda after their arrests. Those cunning
police put the two into a cell and left. But they bugged the cell. Of course, the defendants had a conversation where they made incriminating statements. Guess they don't watch T.V.

The Court of Appeal rejects the claim that this violated Miranda. The Court of Appeal rules that the police didn't interrogate these guys. The Court of Appeal also rejects a challenge based on Crawford (541 U.S. 36), finding that the statements weren't testimonial, since the defendants wouldn't have thought their statements might be used at a later trial.

People v. Jefferson; 2008 DJ DAR 215; DJ, 1/9/08; C/A 2nd, Div. 7

Continue reading "CALIFORNIA CRIMINAL DEFENSE LAWYER NEWS: SURREPTITIOUS BUGGING OF DEFENDANTS IN A HOLDING CELL DOES NOT VIOLATE MIRANDA" »

DUAL USE OF PRISON PRIORS IN CALIFORNIA CRIMINAL CASES-REJECTEDThe court here imposed the upper term based on the defendant's priors. The court used those very same priors as prison priors under PC 667.5(b) to add time as well.

Question: Does this violate the dual use ban?

The Attorney General argues that the upper term was based on the fact of the priors, while the extra time for the prison priors was based on the fact that the defendant had served time in prison.

This Court of Appeal correctly recognizes the Supreme Court authority rejecting this distinction. (See, Jones, 5 Cal.4th 1142.) The California Penal Code sec.667.5(b) enhancement IS based on the fact of the prior conviction. Therefore, the trial judge couldn't add time twice for the same priors.

People v. McFearson; 2008 DJ DAR 156; DJ, 1/8/08; C/A 5th

People v. Le (2007) , Cal.App.4th
[No. H030808. Sixth Dist. Dec. 27, 2007.]

A jury found appellant guilty of the second-degree murder of his wife's lover and also found true an allegation that he had personally used a deadly weapon. (Pen. Code §§ 187, 12022, subd. (b).)

The trial court sentenced him to a state prison term of 15 years to life. Appellant contended, "The trial court erred in instructing under CALCRIM No. 917 that mere 'words' cannot establish a defense to battery, and in permitting the prosecutor to argue to the jury, over objection, that 'words' cannot legally constitute 'provocation' to reduce a homicide to manslaughter."

Appellant further contended that the prosecutor committed misconduct during closing argument and that the trial court erred in responding to a jury question.

The Court of Appeal reversed.