11 2009 Defense Magazine

SHAKEN BABY FORENSICS FALSE ALLEGATIONS
November, 2009 Volume 23 No. 4
Editor
Teresa Mathis
Associate Editor
Travis Stearns
COPY EDITOR
Adam Hodgin
Editorial Committee
David Donnan, Maggie Smith Evansen, Linda Lillevik,
Todd Harms, Les Tozlin and Susan Wilk
Design
Fred Rice
ILLUSTRATIONS
Steve Konz
Washington Association of
Criminal Defense Lawyers
Teresa Mathis, Executive Director
1511 Third Avenue, Suite 503
Seattle, WA 98101
206-623-1302 www.wacdl.org
Features
Officers
Todd Maybrown, President
Bob Quillian, President Elect
Gregory Scott, Vice President/East
Anna Tolin, Vice President/West
Doug Hyldahl, Secretary
Kim Gordon, Treasurer
Bill Bowman, Immediate Past President
Tales from the Criminal Courts by Jeff Cohen
A Call to Arms by Mark Prothero
Board of Governors
Shelley Ajax, Edwin Aralica, Chris Black,
Geoffrey Burg, Robert Butler, Tom Campbell,
Marybeth Dingledy, Lou Frantz, Robyn Friedman,
Mary Katherine Young High, Senit Lutgen,
Briteney Mercer, Amy I. Muth, Guy Nelson,
Jonathan Rands, Brian Roach, Francisco Rodriguez,
Wade Samuelson, John J. Sinclair, Julie Twyford,
Thomas E. Weaver, Scott E. Wonder
Bombs Away! Team effort results in dismissal for now.
The 2009 NAS report on forensic science provides new tools for
for the defense bar.
Shaken Baby Syndrome by Neal Freidman
Medical research provides new tools for the defense in shaken

baby cases.
Washington Defender Association

Christie Hedman, Executive Director
Columns
110 Prefontaine Place South, Suite 610

Seattle, WA 98104
206-623-4321 www.defensenet.org
Briefs
OFFICERS
Anne Daly, President
Dan Fessler, President Elect
Kevin Curtis, Vice President East
Jon Komorowski, Vice President West
Dan McGreevy, Secretary
Eileen Farley, Treasurer
John Rodgers, Immediate Past President
BOARD OF DIRECTORS
Jodi Backlund, Jeremy Ford, Rachel Forde,
Harry Gasnick, Ray Gonzales,
Michael Kawamura, Linda Lillevik,
Greg Link, Floris Mikkelsen, Terry Mulligan,
Jim Shackleton, Leslie Tolzin, Keith Tyne
Washington Criminal Defense is published four times a year.

We welcome contributions from our members. For information
about submitting articles contact Teresa Mathis, 206-623-1302.
For advertising information, contact Fred Rice, 206-623-1302.
WACDL News, Legislation, CLE Calendar
15
22
Views and opinions expressed in articles published are the authors and
are not attributed to the Washington Association of Criminal Defense
Lawyers, the Washington Defender Association, their editors, or members unless expressly stated. Authors are solely responsible for the accuracy of all citations and quotations.
Tales from the Criminal Courts

Bombs Away! Team effort results in dismissal for now.
BY JEFF COHEN
ome
of us
used
to think that
children dont
lie about these
things. Weve
learned thats
not necessarily
so. With that
comment, the
judge assigned
to handle our clients case in Okanogan County granted most of our discovery motions relating to the alleged
victims multiple prior allegations of
sexual abuse by numerous different
individuals. This was the beginning
of the end of the states case charging
J.P. with having sexually abused his
daughter, A.P., nine years earlier.
The demise of the case was a twostep process, starting with numerous
demands for discovery. Obtaining this
information allowed our investigator
to uncover information that seriously
undermined A.P.s credibility. With
A.P.s credibility substantially in question, the trial judge was willing to grant
our motion to dismiss, based upon the
violation of the attorney-client privilege
by the lead detective on the case. This
success was the result of a team effort
that also involved Michael Iaria, Neil
Fox, Liza Burke, Karen Sanderson, our
investigator, and Michael Terribile, an
Arizona attorney.
The case against our client, the
alleged victims father, arose in late
2007 when A.P., his seventeen-year-old
daughter, forged a check, stole the
family car, and left for places unknown.
When she turned up in Louisiana, she
knew she was in serious trouble so
she told her uncle that her father had

touched her inappropriately some nine
years earlier. She claimed that she
had suddenly had a memory of this
incident, as if in a dream.
A.P. had a receptive audience in her
uncle, who had previously heard from
his own daughter that the defendant
had sexually abused her when she
was six years old some 30 years
earlier. Unable to have his brother, J.P.,
prosecuted based on that allegation,
he pushed for a prosecution using A.P.
as a proxy victim. However, CPS had
twice previously interviewed A.P. as a
part of their investigation of the allegation made by her cousin. On those oc-
the point where police investigating

her claims concluded that her injuries
seemed self-inflicted. In the course of
defense interviews, one officer commented that they knew better than to
just take A.P.s word for something.
On the occasion of A.P.s dream
revelation regarding our client, however, the detective who was assigned
to handle the case had worked with
A.P.s cousin. The detective also had
occasion to work with A.P.s uncle
years earlier. This made for the perfect
storm. Though fully aware of A.P.s
history of false or unsubstantiated allegations, as well as her previous denials
of molestation by her father, the detec-
At every turn, the state sought to block our

efforts to obtain these records
casions, A.P. adamantly denied sexual
abuse at the hands of her father, and
she repeated those denials again and
again when questioned by her relatives. Despite these repeated denials,
the relatives continued to press her.
It could hardly be said that A.P. was
reluctant to claim sexual abuse. She
had previously claimed to have been
raped by an elderly man at the local
community center years earlier. She
later acknowledged her allegation
was false. Over the course of years,
A.P. made similar allegations against
numerous other individuals. On almost
every occasion, the police would investigate the report and, when pressed for
details, A.P. would state that she had
been too drunk to remember, or that
they must have drugged her. It got to
tive undertook the investigation with

fervor. This fervor manifested itself
during the execution of a search warrant on the defendants residence. He
seized various photos of the sort most
families have of their children when
they are young and not clothed: A.P.
striking a ninja pose with her brother
while both were wearing only pajama
bottoms, or sitting on the toilet reading when she was approximately five
or six years old. None of the pictures
showed her genitalia.
The detective also seized several
notebooks and stacks of papers that
J.P. had specifically prepared at his
previous attorneys request to contest
a protection order taken out against
him by A.P. and to rebut any criminal charges. Though advised by J.P.
Defense November 2009
that the papers were attorney-client

materials, the detective seized them
and examined them in detail. Then the
detective wrote a report outlining the
perceived differences between J.P.s
statements in the notebooks and his
statements to the police.
In spite of all of the problems with
A.P.s credibility, her previous denials
of molestation by her father, and the
manner in which the allegation against
our client first came to light, the
elected prosecutor the detectives
brother chose to file two counts of
child molestation against our client.
What followed was an intense effort
to obtain all of the police reports and
CPS records relating to the previous allegations of sexual molestation
made by A.P. At every turn, the state
sought to block our efforts to obtain
these records. It was in this setting
that Mike Iaria authored a tome of
more than 150 pages (plus 200 pages
of appendices) which he aptly entitled,
Bombs Away for our computer
file system. This pleading included
discovery requests for all of the prior
abuse allegations, as well as a motion
to suppress the evidence seized due
to a lack of specificity of the warrant, a
motion to suppress the clients statement due to overriding his request to
speak to his attorney, and a motion to
dismiss for violation of the attorney-client privilege. A full day was devoted to
arguing these motions, and it was then
that the court made the statement at
the beginning of this article regarding
the belief that children dont lie about
these things.
It is clear that the court was willing to grant the discovery motions
because we were able to make a
threshold showing that A.P. had both
a history of fabricating such claims as
well as establishing a strong motive
to lie on this occasion. The states
objections to the relevance of police
reports relating to other claims of
sexual abuse were disingenuous in
light of the showing that we were able
to make of the falsity of some of these
claims. In effect, we were able to raise

enough questions about these various
allegations that the court was open to
allowing the discovery while letting us
know that such evidence might not be
admissible in the trial itself.
The court took the motion to dismiss for violation of the attorney-client
relationship under advisement and
did not issue a ruling for almost six
months. In the intervening time, we
litigated the admissibility of the testimony regarding the alleged molestation of A.P.s cousin more than 30 years
ago. Though this case was filed before
the enactment of RCW 10.58.090, under the terms of this new statute, testimony of prior sexual conduct, even
though not against the alleged victim,
shall be admissible subject to certain
considerations, even if the evidence
was not admissible under ER 404(b).
The state wanted to apply the new
law to shore up its shoddy case against
J.P. using the 30-year-old allegations
from his niece.
Neil Fox wrote an extensive brief
challenging the statute on numerous
constitutional grounds including ex
post facto and separation of powers.
The court rejected all of the constitutional arguments but then proceeded
to evaluate the factors outlined in the
new statute and ruled the evidence
of the alleged sexual abuse of the
cousin inadmissible. Clearly, while the
new statute on its face makes such
evidence presumptively admissible,
in some ways the new statute can be
better than ER 404(b) in that it lays
out specific factors for the court to
consider.
We have all had the experience
of having a court cite ER 404(b) and
mouth the rule that propensity evidence is not admissible and then simply regurgitate the exceptions as if this
somehow fixed the problem. The new
statute outlines very specific considerations and, in this instance, a weighing
of those factors made exclusion of the
evidence more likely. Obviously, not
every case will meet with such suc-
cess, but to the extent that the alleged

bad acts are from long ago, or are not
similar to the current allegation, there
remains a basis for excluding such
evidence.
Finally, after six months of deliberation, the court dismissed the case
based on the violation of the attorneyclient privilege. In a very well reasoned written opinion, the court found
that the detective had been fully apprised that the materials were covered
by the attorney-client privilege, and
that suppression was not a sufficient
remedy as the detective had outlined
his comparison of the contents of the
materials as against the statements
of the defendant, and had presented
these perceived inconsistencies to the
prosecutor. No other remedy would
suffice to ameliorate the taint.
When we received the dismissal order, our client thought that his ordeal
was over. Unfortunately, after a year
and a half, the dismissal has not ended
our clients nightmare. Even though
Liza Burke had successfully rebuffed
A.P.s attempts to obtain a restraining
order against our client in Washington,
after the dismissal A.P. sought another
one in Arizona, where she is now
living. Michael Terribile was able to
defeat this effort, and, in the process,
was able to catch A.P. in questionable statements while she was under
oath. Even then, the case did not die.
The elected prosecuting attorney, in
a decision backing his brother, the
lead detective on the case, decided to
appeal the trial judges decision finding
an irreparable invasion of the attorneyclient privilege.
To be continued....
Jeff Cohen is a partner at Cohen &
Iaria, and a founding member of
WACDL. Since entering practice 30
years ago, he has handled most every
type of criminal case, though for the
past ten years his practice has focused
almost exclusively on representation of
defendants facing sexual assault or child
pornography charges.
A Call to Arms: Part I

The 2009 NAS report on forensic science provides new tools
for the defense bar.
BY MARK W. PROTHERO
ow
can
you
fight law
enforcements
science
when youre
representing someone
accused of an
awful offense?
Science is science. Black and white. It is or it isnt.
Sure, you can believe what you want,
science be damned.1 But science is
proof. And science is what can connect
the dots in a case built on otherwise
skimpy or unconvincing circumstantial
wrongful convictions were, at least in

part, attributable to fraudulent or faulty
crime lab work and/or junk science.4
The fallibility of one type of forensic
evidence, fingerprint identification, received more attention than ever before
after the high-profile case of Brandon
Mayfield, the Portland lawyer wrongly
accused in 2004 of a terrorist bombing
in Madrid based upon the FBIs fingerprint experts analysis.5
In 2006, Congress in response
to these growing concerns passed
a law that required a study of the
current state of forensic science in
the United States.6 Recognizing that
significant improvements are needed
in forensic science Congress directed
50-60% of wrongful convictions were, at least

in part, attributable to fraudulent or faulty
crime lab work and/or junk science.
evidence.2
However, as a result of work done
by the Innocence Project, we know
that at least 244 persons have been
exonerated and released from prison
after being wrongly convicted of
serious violent crimes such as rape,
robbery, and murder. And the number
continues to grow.3
Research has shown that about 70%
of these wrongful convictions involved
faulty eyewitness identifications. We
also know with certainty that false
confessions have resulted in wrongful convictions. And we know from
Innocence Project cases that 50-60% of
the National Academy of Sciences to

undertake this study.7
The National Academy of Sciences
called on its research arm, the National Research Council, to conduct
the study. The NRC gathered many
prominent scientists and professors8
who held meetings and took testimony
over the course of 2007 and 2008. In
February of 2009, the report went
public. Strengthening Forensic Science
In The United States: A Path Forward
was immediately hailed by Barry
Scheck as a major turning point in the
history of forensic science in America.9 Paul Schiff Berman, dean of the
Arizona State University College of

Law described the report as a blockbuster that will completely change the
legal landscape regarding forensic
evidence.10
Forensic Disciplines
Note that I will use the term forensic disciplines when referring to those
forensic sciences with no established
scientific basis or validation. I avoid
calling them a science in briefs and
before judges and juries. In the words
of the NAS Report:
Although some of the techniques
used by the forensic science
disciplines such as DNA analysis, serology, forensic pathology,
toxicology, chemical analysis, and
digital and multimedia forensics
are built on solid bases of theory
and research, many other techniques
have been developed heuristically.
That is, they are based on observation, experience, and reasoning
without an underlying scientific
theory, experiments designed to test
the uncertainties and reliability of
the method, or sufficient data that
are collected and analyzed scientifically. 11
The Report
Following is a summary of what you
will find in this report.
Chapter One introduces and has
background discussion on forensic
science in general.
Chapter Two examines the forensic science community and
discusses the need for more

integration of the organizations and
agencies in involved in various ways
with forensic science.
Chapter Three discusses the admission of forensic science evidence in
court. While the legal issues involving ER 702, Frye, and Daubert are of
interest to those of our ilk, they are
not directly a topic of this article.
However, as the DNA Wars of the
1990s remind us, the importance of
the pre-trial admissibility hearing is
clear:
When forensic DNA first appeared, it was sometimes called
DNA fingerprinting to suggest
that it was as reliable as fingerprinting, which was then viewed
as the premier identification
science and one that consistently
produced irrefutable results.
During the effort to validate
DNA evidence for courtroom

use, however, it became apparent
that assumptions about fingerprint
evidence had been reached without the scientific scrutiny being
accorded DNA.12
Like fingerprinting, most forensic
disciplines have for many years
been able to avoid or evade serious scientific scrutiny and legal
challenge.
Chapter Four discusses the underlying principles of the scientific
method and the interpretation of
reliable, scientific data. This is a
critical piece of the puzzle as it illustrates the difference between the
validation and reliability of forensic
DNA and, for example, fingerprint
analysis, toolmark identification, or
hair analysis.
Chapter Five is the most informa-
JUSTICE SCALIA ON THE NAS REPORT

Nor is it evident that what respondent calls neutral
scientific testing is as neutral or as reliable as respondent suggests. Forensic evidence is not uniquely immune
from the risk of manipulation. According to a recent
study conducted under the auspices of the National
Academy of Sciences, [t]he majority of [laboratories
producing forensic evidence] are administered by law
enforcement agencies, such as police departments,
where the laboratory administrator reports to the head
of the agency. National Research Council of the National Academies, Strengthening Forensic Science in the
United States: A Path Forward 61 (Prepublication Copy
Feb. 2009) (hereinafter NAS Report). And [b]ecause forensic scientists often are driven in their work by a need
to answer a particular question related to the issues of a
particular case, they sometimes face pressure to sacrifice
appropriate methodology for the sake of expediency. Id.,
at S17. A forensic analyst responding to a request from a
law enforcement official may feel pressure or have an
incentive to alter the evidence in a manner favorable
to the prosecution.
Confrontation is one means of assuring accurate forensic analysis. While it is true, as the dissent notes, that an
honest analyst will not alter his testimony when forced
tive and helpful part of the report.

This is where the report examines
several forensic disciplines that
have routinely been admitted as
evidence in trials.13 Each section of
this chapter examines the methods
of evidence collection, methods of
analyses and interpretation, and
the reporting of conclusions and
results; each section concludes with
the committees summary assessment of the particular forensic discipline. My summary of this chapter
begins on page 9.
Chapter Six discusses the perception of resistance from many in
the forensic science community to
gaining new information that would
improve the discipline. It reports
on the need for improvements and
makes recommendations to achieve
those improvements.
Chapter Seven discusses the need
to confront the defendant, post, at 10, the same cannot

be said of the fraudulent analyst. See Brief for National
Innocence Network as Amicus Curiae 1517 (discussing
cases of documented drylabbing where forensic analysts report results of tests that were never performed);
National Academy Report 18 to 110 (discussing
documented cases of fraud and error involving the use
of forensic evidence). Like the eyewitness who has fabricated his account to the police, the analyst who provides
false results may, under oath in open court, reconsider
his false testimony. See Coy v. Iowa, 487 U.S. 1012, 1019
(1988). And, of course, the prospect of confrontation will
deter fraudulent analysis in the first place.
Confrontation is designed to weed out not only the
fraudulent analyst, but the incompetent one as well.
Serious deficiencies have been found in the forensic
evidence used in criminal trials. One commentator asserts that [t]he legal community now concedes, with
varying degrees of urgency, that our system produces
erroneous convictions based on discredited forensics.
Metzger, Cheating the Constitution, 59 Vand. L. Rev.
475, 491 (2006). One study of cases in which exonerating evidence resulted in the overturning of criminal
convictions concluded that invalid forensic testimony
contributed to the convictions in 60% of the cases. Garrett & Neufeld, Invalid Forensic Science Testimony and
Wrongful Convictions, 95 Va. L. Rev. 1, 14 (2009). And
for improved oversight.

Chapter Eight discusses education
and training.
Chapter Nine addresses the variety
of medical examiner and coroner
systems throughout the United
States.
Chapter Ten discusses Automated
Fingerprint Identification Systems
(AFIS).
The report concludes with Chapter
Elevens examination of the role of
the forensic science disciplines in
homeland security.
Using the Report

This is an important report that
should carry substantial weight in
court. In the recent U.S. Supreme
Court decision U.S. v. Melendez Diaz,14
Justice Scalia gave the NAS Report an
early boost by citing it in his majority
opinion. [see sidebar]

For criminal defense attorneys, this
report is truly groundbreaking: the
first shovel of dirt has been removed
and now we have to begin the construction. It will take many years of
hard work and concerted effort by the
defense bar to bring the promise of
the report and its recommendations to
fruition.
Our work on forensic DNA has
taught us, and the scientists have now
clearly expressed, the need to get
rid of the junk in the science being
used in our criminal justice system.
We must insist that any evidence used
against our clients be valid and reliable; if it is presented to the jury as science, there must be a solid, scientific
basis. Here are a few ways to make
that happen:
Educate: At a pretrial conference
on a murder case in mid-July, I
the National Academy Report concluded:

The forensic science system, encompassing both research
and practice, has serious problems that can only be addressed by a national commitment to overhaul the current
structure that supports the forensic science community in
this country. National Academy Report P1 (emphasis in
original).6
Like expert witnesses generally, an analysts lack of
proper training or deficiency in judgment may be disclosed in cross-examination.
This case is illustrative. The affidavits submitted by
the analysts contained only the bare-bones statement that
[t]he substance was found to contain: Cocaine. App. to
Pet. for Cert. 24a, 26a, 28a. At the time of trial, petitioner
did not know what tests the analysts performed, whether
those tests were routine, and whether interpreting their
results required the exercise of judgment or the use of
skills that the analysts may not have possessed. While we
still do not know the precise tests used by the analysts,
we are told that the laboratories use methodology recommended by the Scientific Working Group for the Analysis
of Seized Drugs, App. to Brief for Petitioner 1a2a. At
least some of that methodology requires the exercise
of judgment and presents a risk of error that might be
explored on cross-examination. See 2 P. Giannelli & E.
Imwinkelried, Scientific Evidence 23.03[c], pp. 532533,
ch. 23A, p. 607 (4th ed. 2007) (identifying four critical er-
noted that the defense would be

seeking a Frye hearing on firearm
identification based on comparison
of cartridge casings in light of the
criticisms in the NAS Report. The
judge, one I consider to be among
the smarter judges around, said
with an incredulous tone, You
mean theres some new report that
says I cant admit evidence Ive
been routinely admitting, unchallenged by the way, for many, many
years?!?
Yes. Thats exactly what Im saying.
We need to educate our bench on
the content of this report and to
start by letting them know it exists.
Funding: Public defenders and
court-appointed counsel will have
to seek expert funding at public
expense. This will involve educating the holders of the purse strings
rors that analysts may commit in interpreting the results

of the commonly used gas chromatography/mass spectrometry analysis); Shellow, The Application of Daubert
to the Identification of Drugs, 2 Shepards Expert &
Scientific Evidence Quarterly 593, 600 (1995) (noting that
while spectrometers may be equipped with computerized
matching systems, forensic analysts in crime laboratories
typically do not utilize this feature of the instrument, but
rely exclusively on their subjective judgment).
The same is true of many of the other types of forensic evidence commonly used in criminal prosecutions.
[T]here is wide variability across forensic science
disciplines with regard to techniques, methodologies, reliability, types and numbers of potential errors, research,
general acceptability, and published material. National
Academy Report S5. See also id., at 59, 512, 517, 521
(discussing problems of subjectivity, bias, and unreliability of common forensic tests such as latent fingerprint
analysis, pattern/impression analysis, and toolmark and
firearms analysis). Contrary to respondents and the
dissents suggestion, there is little reason to believe that
confrontation will be useless in testing analysts honesty,
proficiency, and methodology the features that are
commonly the focus in the cross-examination of experts.
Melendez Diaz v. Massachusetts, 129 S. Ct. 2527 at 25362537, 174 L.Ed.2d 314 (2009)
in a given jurisdiction. The NAS

Report provides powerful support
for such requests and gives us the
ammunition to attack evidence of
questionable reliability that we have
been routinely accepting without
challenge. It is important for us to
use this new ammunition to the fullest extent and to make the proper
record while doing so.
Experts: Finding the right experts
can be a challenge itself. Those
considered experts in a given
forensic discipline may be the ones
who have been doing it a long time.
Absent an occasional lone ranger
whistleblower, these are also the
proponents of the discipline with
their own well-established biases.
This is generally not the group we
will be turning to for independent
scrutiny of the reliability of the
given forensic discipline.15
Academia may be the best
source of potential experts. There
are professors of law, social justice,
criminology, and related fields with
expertise in forensic science. Look
at the professors and researchers
who either participated, testified,
or were cited in the NAS Report.
Statisticians, and professors of
statistics, may also be consulted in
cases involving identification based
on purported matches between,
for example, shoeprints, tire treads,
or toolmarks.16
Frye hearings: Get money. Retain
experts. Move for a Frye hearing.
Get Frye hearing. Win Frye hearing.
Piece of cake.
In reality, none of this will be
easy. Just getting a hearing may be
tough. Assume the state will fight it
(Its not novel scientific evidence
its been admitted for years).17
Winning the Frye hearing may
mean different things: exclusion of
evidence; limits on the testimony of
the states experts; jury instructions
that impact the weight a jury may
give such evidence.
Make a good record for appeals:

We are swimming upstream, in a
wide, old river with a strong current. Progress will be made in small
increments. We will be pushed
downstream again and again but
weve got to keep fighting against
the current. Our losses and defeats will be important steps in the
education process. So even in the
face of great obstacles, with all the
inertia against us and defeat looming at every turn it is critical that
trial attorneys work hard and insist
on creating a proper record for our
appellate brothers and sisters. Ultimately, these issues will be heard
by our Supreme Court.
The Emperor Has No Clothes

Well, as least theres no scientifically valid and reliable basis to objectively prove he has clothes. Back
when it was first introduced, we knew
forensic DNA was going to have significant impact on our system. Im not
sure anyone could have predicted the
statistics we have seen from the work
of the Innocence Project. But the truth
is coming out.
Unreliable evidence, under the
guise of science, has been used for decades to convict our clients of crimes.
The mask has been lifted. The time
is now. The NAS Report has basically
called bullshit on many forensic
disciplines. This evidence is being
used against our clients. When you
get a case involving one of the pseudosciences, use the NAS Report as your
weapon and attack it. Its time for us,
the criminal defense bar, to step to the
plate and do our job.
Mark Prothero is a partner in the Kent
law firm Hanis Irvine Prothero PLLC.
He serves on a WACDL/WDA task force
that is working to improve oversight of
crime labs in Washington State.
Notes
1. See Scopes v. State of Kentucky, 154
Tenn. 105 (1927)
the persons on the committee. A Path

Forward, 282-302.
2. Brandon Garrett and Peter Neufeld,

Invalid Forensic Science Testimony and
Wrongful Convictions 95 Va. L. Rev. 1
(2009)
9. Seattle Times, February 19, 2009
3. See http://www.innocenceproject.org
for updated statistics.
11. Path Forward, 128. (emphasis added)
4. Garrett and Neufeld, Invalid Forensic

Science. See also B.L. Garrett, Judging Innocence 108 Colum.L. Rev. 55
(2008).
5. Mayfield was wrongly accused after
an FBI analyst determined it was
Mayfields fingerprint. Two other FBI
analysts confirmed the first erroneous
conclusion. Cite NAS Report
6. Science, State, Justice, Commerce, and
Related Appropriations Act of 2006.
Public Law no. 109-108 (November 22,
2005)
10. ASU News, February 9, 2009 http://

asunews.asu.edu/20090209_forensicscience
12. Path Forward, 104.
13. This chapter also includes a look at
the emerging forensic discipline involving computers, digital technology,
and multimedia.
14. Melendez Diaz v. Massachusetts 557
U.S.__, 129 S. Ct. 2527, __L. Ed. 3d
15. Although we may still retain their
services to see if things were done in
the accepted manner in a particular
case for purpose of ER 702 as opposed
to the Frye determination.
7. Committee on Identifying the Needs

of the Forensic Science Community,
National Research Council, Strengthening Forensic Science in the United
States: A Path Forward (Washington
DC: National Academies Press, 2009),
xix. (emphasis added)
16. In my pending case in King County involving firearm identification through

cartridge casings, we have been
authorized funding for three experts:
Professor Adina Schwartz, Professor William Thompson, and William
Tobin, former chief metallurgist for
the FBI.
8. See Appendix A for biographies of
17. Path Forward, 107-10.
A Call to Arms: Part II

Summary of the NAS assessment of frequently used forensic
evidence.
BY MARK W. PROTHERO
DNA Evidence: The committee gave
DNA evidence a thumbs up, the model
for all forensic disciplines:
Unlike many forensic techniques
that were developed empirically
within the forensic science community, with limited foundation in
scientific theory or analysis, DNA
analysis is a fortuitous by-product
of cutting-edge science. Eminent
scientists contributed their expertise to ensuring that DNA evidence
offered in a courtroom would be

valid and reliable. and by 1996
the National Academy of Sciences
had convened two committees that
issued influential recommendations
on handling DNA forensic science.
DNA analysis has also been subjected to more scrutiny than any other
forensic science discipline, with rigorous experimentation and validation
performed prior to its use in forensic
investigations.1
Controlled Substance Analysis:
The committee recognized that [T]he
analysis of controlled substances is a
mature forensic science discipline and
one of the areas with a strong scientific
underpinning.2 The report concluded:
The chemical foundations for the
analysis of controlled substances are
sound, and there exists an adequate
understanding of the uncertainties and
potential errors.3
The committee was critical of the
summary terse reports produced
by the labs for the attorneys and
courts. While experienced chemists
may know what tests to perform in a
given situation, the reports typically
do not include details of the analysis.
Whether the right tests were done
and proper protocols followed is often
omitted absent supplemental discovery requests. This ambiguity would
be a less significant issue if the reports
presented in court contained sufficient
detail about the methods of analysis.4
Friction-Ridge Analysis Fingerprints: Formerly the gold-standard
of identification (e.g., pre-forensic
DNA), friction-ridge analysis applies
to fingerprints, palm prints, and sole
prints. It is an example of what the
forensic science community uses as
a method for assessing individualization the conclusion that a piece
of evidence.comes from a single
unambiguous source. Friction ridge
analysis shares similarities with other
experienced-based methods of pattern
recognition, such as those for footwear
of the latent print community is

that the examiners can too easily
explain a difference as an acceptable distortion in order to make an
identification. (footnote omitted)8
and tire impressions, toolmarks, and

handwriting analysis.5
The report discusses data collection, analysis, comparison, evaluation,
verification (ACE-V), methods of
interpretation, and issues regarding
the conclusions in the reporting of
the results. Regarding the ACE-V
method, the report states:
ACE-V. is not specific enough to
qualify as a validated method for
this type of analysis. ACE-V does
not guard against bias; is too broad
to ensure repeatability and transparency; and does not guarantee that
two analysts following it will obtain
the same results. For these reasons,
merely following the steps of ACE-V
does not imply that one is proceeding in a scientific manner or producing reliable results.6
Problems with lack of documentation of the analysis are recognized, as
well as the claims by the latent print
community that the method and analysis has a zero error rate.
Errors can occur with any judgment-based method, especially
10 Defense November 2009
when the factors that lead to the

ultimate judgment are not documented. Clearly, this assertion is
unrealistic, and moreover, it does
not lead to a process of method improvement. The method, and those
who use it, are inextricably linked,
and both involve multiple sources of
error (e.g., errors in executing the
process steps, as well as errors in
human judgment).7
The report calls for much additional
research regarding the presumption of
uniqueness, different sources vs. distortions caused by variations in pressure, ridge flow and crease pattern
distribution, skin conditions, residue,
mechanics of touch, and other factors
impacting the quality and characteristics of latent prints.
Formal research could provide
examiners with additional tools to
support or refute distortion explanations. Currently, distortion and
quality issues are typically based
on common sense explanations
or on information that is passed
down through oral tradition from
examiner to examiner. A criticism
Pattern/Impression Evidence
Shoeprints, Tire Tracks: Like
fingerprints, other types of pattern
or impression evidence such as a
shoeprint impression left on the assault victim or in the ground outside
the window used for entry by a burglar
are used in criminal investigations
and prosecutions. Other types of impression evidence include bite marks,
toolmarks, and some types of bloodstain evidence, which are examined in
separate sections. Other less-common
types of impression evidence include
ear prints, lip prints, and glove prints.
This section of the NAS Report deals
specifically with shoeprints and tire
tracks.
The analyses of these types of
evidence generally follow the same
accepted methods:
First, determining the general class
of the source of the impression (for
example, identifying a shoeprint
as having been made by a size 10
Adidas Superstar or a tire track left
by a Michelin Steel-belted Radial
110x65).
Second, identifying individual
characteristics caused by use and
wear and tear then comparing the
individual characteristics of the
crime scene impression evidence
with the individual characteristics of
the suspect evidence.
According to the report, such
Identifications are largely subjective and are based on the examiners experience and on the number
of individual, identifying characteristics in common with a known
standard.9
The report is critical of the lack

of a solid scientific basis for making
a positive identification: But there
is no defined threshold that must be
surpassed, nor are there any studies
that associate the number of matching
characteristics with the probability
that the impressions were made by a
common source.10
The committee further noted that:
there is no consensus regarding the
number of individual characteristics
needed to make a positive identification, and the committee is not aware
of any data about the variability of
class or individual characteristics or
about the validity or reliability of the
method. Without such population
studies, it is impossible to assess
the number of characteristics that
must match in order to have any
particular degree of confidence
about the source of the impression.11
Toolmark & Firearms Identification: Toolmarks are another type of
impression evidence commonly seen
in criminal investigations and prosecutions. These include any number of
tools such as hammers, screwdrivers,
bolt-cutters, or crowbars. Firearm
examination is essentially a sub-set
of toolmark examination in that the
tools are the inner workings of a
firearm, such as the firing pin or the
extractor and ejector mechanisms
or the barrel that the bullet passes
through after the trigger is pulled.
Examiners initially look for class
and sub-class12 characteristics. If
evidentiary items cannot be excluded
on that basis, examiners then look for
microscopic individual characteristics.
The examiner looks at the evidence
through use of comparison microscopes that allow the examiner to
look at two samples at the same time,
side by side. The examiner makes

a determination of whether or not a
match exists through this visual
comparison. A match is call ed if the
examiner determines there is significant agreement between the samples.
Agreement is significant as defined
by the Association of Firearm and
Toolmark Examiners (AFTE) when
it exceeds the best agreement demonstrated between toolmarks known to
have been produced by different tools
and is consistent with the agreement
demonstrated by toolmarks known
to have been produced by the same
tool.13 In other words, like obscenity,
I know it when I see it.
AFTE standards acknowledge that
these decisions involve subjective
qualitative judgments by examiners
and that the accuracy of examiners
assessments is highly dependent on
their skill and training. even with
more training and experience using
newer techniques, the decision of
the toolmark examiner remains a
subjective decision based on unarticulated standards and no statistical
foundation for estimation of error
rates.14
The need to substantiate claims of
uniqueness in firearms identification
(e.g., identifying a cartridge casing
as having come from one gun to the
exclusion of all other guns in the
world) had led to an earlier NAS study,
Ballistics Imaging, published in 2008,
which concluded:
The validity of the fundamental assumptions of uniqueness and reproducibility of firearms-related toolmarks has not yet been fully demonstrated. Although they are subject
to numerous sources of variability,
firearms-related toolmarks are not
completely random and volatile;
one can find similar marks on bullets and cartridge cases from the
same gunA significant amount

of research would be needed to
scientifically determine the degree
to which firearms-related toolmarks
are unique or even to quantitatively characterize the probability of
uniqueness.15 (emphasis added)
The NAS report is critical of the
lack of scientifically-sound research:
Because not enough is known about
the variabilities among the individual tools and guns, we are not able to
specify how many points of similarity are necessary for a given level of
confidence in the result. Sufficient
studies have not been done to understand the reliability and repeatability of the methodsadditional
studies should be performed to
make the process of individualization more precise and repeatable.
the scientific knowledge base for
toolmark and firearms analysis is
fairly limited.16
The NAS Report is also critical of
the few studies that have been done in
this area:
....capsule summaries [of these
studies] suggest a heavy reliance on
the subjective findings of examiners
rather than the rigorous quantification and analysis of the sources of
variability. This is not to say that
toolmark analysis needs to be as objective as DNA analysis in order to
provide value [B]ut the protocols
for DNA analysis do represent a
precisely specified, and scientifically justified, series of steps that lead
to results with well-characterized
confidence limits, and that is the
goal for all the methods of forensic
science.17
Hair Evidence Analysis: Hair
analysis may be useful in excluding
suspects or narrowing the pool of poDefense November 2009 11
tential suspects based on class characteristics of hair found at a crime scene.

The results of analyses from hair
comparisons typically are accepted as
class associations; that is, a conclusion of a match means only that the
hair could have come from any person
whose hair exhibited within some
levels of measurement uncertainties
the same microscopic characteristics, but it cannot uniquely identify one
person.18
The NAS Report notes that no
scientifically accepted statistics exist about the frequency with which
particular characteristics of hair are
distributed in the population. There
appear to be no uniform standards on
the number of features on which hairs
must agree before an examiner may
declare a match.19
Although it may continue to serve a

role in investigation of crimes, because
of advancements in forensic Mitochondrial DNA (mtDNA) analysis, the
traditional hair analysis we use to see
in the courtroom is a thing of the past.
And thats a good thing: Incorrect or
unvalidated hair analysis was determined to be involved in 48 of the first
241 Innocence Project exonerations.20
From our standpoint, if the prosecution seeks to introduce hair analysis,
the defense must argue against its
admissibility. There simply is not
adequate empirical data on the frequency of various class characteristics
in human hair. Assertions by the
prosecutions analyst that hairs are
consistent or similar are prejudicial, lack probative value, and should
not be presented to the jury.
Fiber Evidence Analysis: Analysis

of fiber evidence from 100% wool to
cotton, nylon, acrylic, rope, etc. involves the science of analytical chemistry, with sound, proven scientific
credentials. Associating a fiber with a
known class of fibers is accepted in the
scientific community. In some cases, fibers have been subjected to relatively
distinctive environmental conditions
(e.g., sunlight exposure or laundering
agents) that impart characteristics that
can distinguish particular items from
others from the same manufacturing
lot. Fiber examiners agree, however,
that none of these characteristics is suitable for individualizing fibers (associating a fiber from a crime scene with one,
and only one, source). 21
The report was critical that there
were no set standards for the number
and quality of characteristics that must
correspond in order to conclude that
the two fibers came from the same
manufacturing batch. There have been
no studies of fibers (e.g., the variability
of their characteristics during and after
manufacturing) on which to base such
a threshold.22
The report also criticized the lack of
scientifically-based research:
Similarly, there have been no
studies to inform judgments about
whether environmentally related
changes discerned in particular
fibers are distinctive enough to
reliably individualize their source,
and there have been no studies
that characterize either reliability
or error rates in the procedures.
Thus, a match means only that
the fibers could have come from the
same type of garment, carpet, or
furniture; it can provide only class
evidence.23
Questioned Document Examination: This section of the report deals
primarily with handwriting comparison.24 This typically involves comparison of handwriting or a signature on
a questioned item with handwriting
or signatures from an item or items
of known origin to determine forgery.
Sometimes, it involves someone trying
to disguise their own writing.
The NAS committee again noted
the paucity of scientifically-based
research:
The scientific basis for handwriting
comparisons need to be strengthened. Recent studies. suggest
that there may be a scientific basis
for handwriting comparison. Although there has been only limited
research to quantify the reliability
and replicability of the practices
used by trained document examiners, the committee agrees that
there may be some value in handwriting analysis.25
to as vehicular homicide or vehicular

assault), the transfer of paint from one
item to another can indeed provide
valuable evidence. Depending on
the number of layers of paint on a
given item, the value of the evidence
increases. Given sufficient distinct
layers, an examiner may conclude that
it is unlikely that the questioned paint
originated from any source other than
that of the known paint.26 Just where
that threshold lies is up to the subjective determination of the examiner.
There are no standards or statistical
studies.
The report summarizes: As is the
case with fiber evidence, analysis of
paints and coatings is based on a solid
foundation of chemistry to enable
class identification. However, the
community has not defined precise
criteria for determining whether two

samples comes from a common source
class.27
Explosives and Fire Debris Evidence Analysis: Like fiber and paint
analysis, this discipline is based on
well-founded principles of chemistry
and physics. However, such evidence
must be scrutinized. The report states:
By contrast, much more research
is needed on the natural variability of burn patterns and damage
characteristics and how they are
affected by the presence of various
accelerants. Despite the paucity of
research, some arson investigators
continue to make determinations
about whether or not a particular
fire was set. However, according to
The clear implication with this

forensic discipline, and others, is that
there may be a scientific basis, and
there may be value in this type of evidence, but not yet. Not without further
study and research which follows the
scientific method.
Paint Evidence Analysis: Have you
ever had the situation where your client is a truck painter and the prosecution finds molecules of paint consistent with the paint your client works
with in the ligature around the neck of
a woman hes suspected of strangling?
I hate it when that happens. In and of
itself, depending on how common or
uncommon that particular paint might
be, it might not be enough to convict,
or even prosecute. However, if they
have your clients DNA in three or
four other similarly situated victims, it
could be a real problem.
More commonly associated with
car accidents (sometimes referred
Defense November 2009 13
testimony presented to the committee, many of the rules of thumb that

are typically assumed to indicate
that an accelerant was used (e.g.,
alligatoring of wood, specific char
patterns) have been shown not to
be true. Experiments should be
designed to put arson investigations
on a more solid scientific footing.28
Forensic Odontology Bitemarks: On July 27, 2009, the State of
Wisconsin announced it was dismissing all charges against Robert Lee
Stinson. Stinson had been wrongfully
convicted of murder based in large
part on the testimony of an expert
who said the bitemark on the victim
matched Stinsons bite. The expert
testified that the process had zero
margin of error. Forensic DNA evidence proved otherwise. Robert Lee
Stinson had served over 23 years.
Sounding a bit like a broken record,
the NAS Report again criticizes the
discipline for lacking in scientificallybased studies:
there is considerable dispute about
the value and reliability of the collected [bitemark] data for interpretation. Some of the key areas
of dispute include the accuracy of
human skin as a reliable registration material for bite marks, the
uniqueness of human dentition,
the techniques used for analysis,
and the role of examiner bias.
Although the majority of forensic
odontologists are satisfied that bite
marks can demonstrate sufficient
detail for positive identification,
no scientific studies support this
assessment, and no large population
studies have been conducted.
The committee received no evidence
of an existing scientific basis for identifying an individual to the exclusion
of all others.29
pattern evidence can be informative

as to what occurred at a crime scene,
it cautions about the complexities of
the analysis and the many sources of
variability. In general, the opinions of
bloodstain pattern analysts are more
subjective than scientific. [e]xtra
care must be given to the way in which
the analyses are presented in court.
The uncertainties associated with
bloodstain pattern analysis are enormous.30
Digital & Multimedia Analysis:

The report includes this section on the
emerging, dynamic field of forensic
computer and digital technology analysis. The rapid proliferation of multimedia devices and other forms of digital
technology has given rise to all sorts
of new ways to commit crimes and/or
leave evidence of committing crimes.
The committee states:
13. AFTE Criteria for Identification Committee , Theory of Identification,

Range of Striae Comparison Reports
and Modified Glossary Definitions
An AFTE Criteria for Identification
Committee Report. Journal of the
Association of Firearm and Toolmark
Examiners 24, no. 2 (1992): 336-340.
Over the past ten years, this process

has become more routine and subject to the rigors and expectations
of other fields of forensic science.
Three holdover challenges remain:
(1) the digital evidence community
does not have an agreed certification program or list of qualifications
for digital forensic examiners; (2)
some agencies still treat the examination of digital evidence as an
investigative rather than a forensic
activity; and (3) there is wide variability in and uncertainty about the
education, experience, and training
of those practicing this discipline.31
Notes
1
Committee on Identifying the Needs

of the Forensic Science Community,
National Research Council, Strengthening Forensic Science in the United
States: A Path Forward (Washington
DC: National Academies Press, 2009),
133
Bloodstain Pattern Analysis: The

committee found that while bloodstain

6.
Path Forward, 142.

12. Subclass characteristics are produced
during the manufacturing process by
a tool that leaves virtually identical
markings on a number of firearms in
the same production lot.
14. Path Forward, 153

15. Path Forward, 154, citing National
Research Council Ballistics Imaging
(Washington D.C: The National Academies Press) 2008, 3.
20. Brandon Garrett and Peter Neufeld,
Invalid Forensic Science Testimony and
Wrongful Convictions 9 Va. L . Rev. 1
(2009). See http://www.innocenceproject.org for updated statistics.
22. Path Forward, 162-63
24. The committee did not research or
take testimony on paper and ink analysis, the other common components
of questioned document examination.
While acknowledging a sound scientific basis in chemistry, the committee
did not offer any definitive view on
these disciplines.
28. Path Forward, 173 (footnotes omitted)
29. Path Forward, 176 (footnotes omitted)
(emphasis added)
Shaken Baby Syndrome

Medical research provides new tools for the defense in shaken
baby syndrome cases.
BY NEAL FRIEDMAN
ou
have
just
been
given a new
homicide
case. The
facts are as
follows: a
small child
appears in
the emergency room
comatose (or with respiratory issues),
with no visible signs of injury but with
subdural bleeding, retinal bleeding,
and brain swelling (the triad). The
medical staff at the hospital diagnoses
the child as a victim of Shaken Baby
Syndrome (SBS). The police subsequently interrogate your client and
your client has admitted to shaking the
child.
The child ultimately dies and your
client is incarcerated and charged with
Murder 2. He is looking at a minimum
of 220 months on a plea, or an exceptional sentence if he wants a trial. You
meet with your client and he tells you
he is innocent. He does not know what
happened to the child; she just stopped
breathing and he shook her to get her
to breathe again. Is there any hope to
prevail at trial?
Up until the recent past, the answer
would have been no. Now, based
on new medical research, it is yes
so long as you present the proper
defense.1 A proper defense requires
more than attacking the states theory
of SBS and saying the state has not
proved its case. Rather, it requires
both attacking the states case and

providing an alternative cause for the
childs death.
The purpose of this article is to
relieve you of the need to re-invent
the wheel. It will discuss the signs and
symptoms of pediatric head injury,
the changes in SBS diagnosis brought
about by new medical research,2 the
legal consequences of these changes,
and what you need to do to meet the
difficult challenges of these high profile cases.
At a minimum, you should take the
following steps to prepare your case:
1. Request all hospital records
and medical reports. This
includes all X-rays, Computed
Tomography (CT) scans and Magnetic Resonance Images (MRI). In
addition, you need the childs complete medical records, including
prenatal and birth records. This is
critical since the childs pre-existing conditions may explain the
death. It will also help establish a
timeline. If the prosecutor will not
provide these, issue a subpoena
duces tecum to all medical providers.
2. Request the complete Medical Examiner (ME) file. Do not
be satisfied with just the autopsy
report. You want the entire file.
Also, immediately upon receiving the case, you should serve a
subpoena duces tecum on the ME
demanding that rough notes of the
autopsy be preserved. This will be
the voice of the ME dictating what
was observed as the autopsy was
being conducted.3
3. Ask for a duplicate set of all
autopsy slides, including the
brain slides. This will allow your
experts to analyze the slides and
retain them. It is neither expensive
nor time consuming for the ME to
make them.
4. Review the complete neuropathology file. This includes any
conversations with the police or
prosecutor.
5. Conduct careful caretaker
inter views. Often, babysitters,
friends, and relatives will have
seen signs and symptoms that will
put you on the path to a correct
diagnosis.
6. Attempt to get your client out
of custody. These cases take a
long time to prepare.
7. Tape record all inter views
of the medical examiner and
other expert medical witnesses
of the state. Get an order from
the court requiring a tape recording.
8. Demand the medical journal
articles or treatises which the
ME or other medical expert
for the state is relying upon to
reach his/her opinion.
Background on SBS
SBS theory originated in the 1970s
as a hypothesis to explain respiratory
distress or death in a small group of
infants, usually less than six months
old, from apparent head injury with
no identifiable impact site and the

triad subdural hemorrhage, retinal
hemorrhage, and brain swelling. The
theory was that the disproportionately
large heads and weak necks of infants
allowed their heads to course back and
forth during shaking, causing subdural hemorrhage through rupture of the
bridging veins between the brain and
the dura.4 It was also thought that the
high myelination and water content
in the infant brain were predisposing
factors.
By the 1990s, this theory was
widely accepted by medical professionals in some subspecialties, especially
pediatrics and emergency medicine.
Over the years, SBS theory developed
a number of subsidiary hypotheses
that also quickly became accepted:
short distance falls (less than 12-15
feet) would not lead to serious injury,
children who suffered head injury
were immediately symptomatic, and
natural disease processes rarely if ever
produced subdural hemorrhages or
brain swelling. The diagnosis spread
to older babies and even toddlers who
presented with the triad. The pool of
children receiving this diagnosis expanded, and the last caretaker with the
child was often automatically accused
of shaking and causing the death.
Critics of SBS noted, however,
that unlike other medical fields, the
literature supporting SBS was not
evidence based. Instead a small
database (mostly poor-quality original
research, retrospective in nature and
without appropriate control groups)
was used to support a questionable
medical theory.5 Due to evidencebased research conducted over the
past decade in several disciplines, the
tide has begun to turn. Now, although
there are still some adherents, SBS is
no longer accepted without question
in the forensic pathology, neuropathology, or biomechanical communities.
Some prosecutors are also less willing

to prosecute based on this theory
and more willing to consider the
alternatives. 6
Yet there are hundreds of other
cases where prosecutors and police
still go forward, using the expert
opinion of medical specialists who still
believe, often with considerable fervor,
that the triad of symptoms establishes
abuse despite medical research that
should cause them to doubt this diagnosis.7 This article is designed to help
you defend those cases.
that shaking alone does not generate sufficient force to meet the
injury thresholds for subdural
hemorrhage,
that even relatively short falls produce far greater forces than shaking, and
that impact is needed to create traumatic subdural hemorrhage.
Subsequent studies confirmed that

the forces needed to cause a subdural
hemorrhage through shaking would
cause severe neck damage, which is
rarely present in the so-called shaken
Scientific Challenges
baby cases.10
to the Foundations of SBS
Prior to 1995, most physicians
Biomechanical Studies: Biomeregarded
significant injury to an infant
chanical studies were the first scienor
child
as
a result of a fall to be so
tific studies to cast doubt on the SBS
unusual
as
to be almost diagnostic of
theory. Biomechanics is the discipline
abusive
injury.
Hence, short falls were
that applies mechanical principles to
excluded
as
a
possible
source of the
living tissue in order to determine
11
head
injury.
In
1993,
Reiber
concludmechanisms of injury. The first
ed
that
there
could
be
fatalities
from
biomechanical study was published
short
falls
and
raised
the
possibility
of
in 1987 by Dr. Duhaime, a pediatric
lethal
intracranial
hemorrhage
from
neurosurgeon, and her colleagues in
seemingly minor falls. He said, The
biomechanical studies at the Univer8
sity of Pennsylvania. Using volunteers height from which children must fall to
sustain fatal head trauma is a question
to shake a model of an infant fitted
that lacks a single, easy answer. One
with accelerometers, the researchhas to consider the possible mechaners found that shaking alone did not
create the g-forces necessary to cause ics of the fall, the age and condition of
subdural hemorrhage. Instead, impact the child, and the shape and consistency of the contact surface. Correlation
was needed. These results have been
of fall mechanics and injury pattern
replicated in subsequent biomechanishould be considered. Since 2000 it
cal studies and are summarized in
has been increasingly recognized that
a 2004 review by Professor Werner
children can and do die from accidenGoldsmith, a leading biomechanical
engineer at the University of California tal short falls. The definitive study
of this phenomenon was by Plunkett
at Berkeley, and Dr. John Plunkett,
in 2000, which included a report of a
9
a forensic pathologist. These later
videotaped short fall of a toddler who
studies used computer modeling and
had climbed onto a plastic playhouse
crabbi (crash test) dummies (used
and fallen. While initially the toddler
to design car seats and play ground
did not appear damaged, the child
equipment) to analyze pediatric head
collapsed and died a short time later.12
injury.
Since then, there have been other
These studies all confirmed the
reported accidental short falls resultDuhaimes conclusion:
ing in death, including a case reported
by Denton and Mileusnic13 and several

cases including a fall down stairs and a
fall from a stool, analyzed from a radiological perspective by Steinbok et al.14
As a result of these studies, most
pathologists now describe findings
previously attributed to shaking
only as shaking/impact, abusive
head trauma, blunt force injury, or
inflicted childhood neurotrauma.15

Despite accounting for impact, however, many pathologists still ignore or
are ignorant of developments in this
field, which often point to natural or
accidental causes for the triad. The
faulty diagnosis of homicide or assault
typically begins at the hospital, where
emergency room doctors, nurses,
and pediatricians often make an initial
misdiagnosis of SBS. This makes the
defendant the guilty party in the eyes

of the childs family right from the
beginning and biases the subsequent
police investigation and interrogation.
By the time the case hits the prosecutors office, the burden of proof has
effectively been reversed and you
and your defendant are expected to
explain the triad.16
Neuropathology and Forensic Pathology: In the late 1990s, it was widely believed that subdural hemorrhages
were virtually always traumatic in
nature and would produce immediate
symptoms. The first neuropathological
study on this subject was published in
2001 when Dr. Jennian Geddes and her
colleagues performed careful studies
on the brains of children who allegedly
had been shaken or otherwise trauma-
tized, as well as on controls of children

who died of natural causes.17
Dr. Geddes report included surprising results. First, instead of traumatic
injury (specifically, tearing of the
axons in the brain or some other obvious sign of impact to the brain), the
researchers found hypoxic/ischemic
injury instead, i.e., injury due to lack
of oxygen to the brain. Lack of oxygen causes the brain cells to die, with
severe or prolonged oxygen shortage
causing areas of infarct (dead cells),
cerebral edema (excess fluid in the
cells or extracellular tissues), encephalopathy (brain swelling), and a rise in
intracranial pressure with increased
pressure on the brainstem, which
controls respiration. Unlike traumatic
brain injury, hypoxic/ischemic injury
can result from a wide array of causes.
Second, the researchers found that
most allegedly abused children did not
have the massive subdurals associated
with trauma, but instead had thin subdural hemorrhages of unexplained origin. Under standard SBS theory, shaking causes the bridging vessels (which
are relatively large caliber vessels) to
rupture. However, the subdurals seen
in these infants were over the convexities of the brain, rather than pools
from burst bridging veins, and they
were too small to cause the cascade of
events hypothesized by SBS theory.
Most importantly, these thin subdurals
were also found in controls of children
who had died of natural causes.
Since hypoxic injury leads to the
same progression whether caused by
trauma, stroke, metabolic disorders,
infection, or other natural disease
processes, it is easy to misdiagnose
the cause of death in cases involving
the triad. In addition it is sometimes
impossible to differentiate between
hypoxic-ischemic damage occurring
prior to death and hypoxic-ischemic
damage occurring during resuscitation
and life support.

Since the Geddes report, it has
been increasingly recognized that
there are many different kinds of subdural hemorrhage, with very different causes and consequences. Large
space-occupying subdurals, i.e., subdurals that are large enough to displace
the brain, are likely to cause serious
symptoms and rapid deterioration, and

are often (though not always) traumatic in origin. In contrast, small thin
subdurals (more accurately described
as intradurals) are found in nearly 50%
of asymptomatic newborns and do not
suggest brain damage.18 Such subdu-
rals are also found in natural disease

processes and can arise from any type
of increased intracranial pressure.
When coupled with a pre-existing
condition, they may even be spontaneous or caused by coughing, vomiting,
choking and the like.
Hence, this new research established that blood in the subdural
region of the skull is not necessarily

the result of inflicted trauma. Furthermore, as it became clear that
subdural hemorrhages come in many
configurations and causes, attention
turned to the issues of rebleeds and
timing. Since subdural hemorrhages
can rebleed based on minor trauma

or no trauma at all, you may well find
yourself defending a client who wasnt
with the child when the subdural
began, and who has no idea of what (if
anything) caused the rebleed.
In shaking or shaking/impact cases, there is also considerable variation
in timing, and no scientific evidence
to indicate whether symptoms would
occur immediately or be delayed
following any given impact. In 1998,
Gilliland reported that the interval
between injury and onset of symptoms
in impact cases was more than twenty
four hours in 25% of the cases and
more than seventy two hours in 5%
of the cases. During this period, the
children had nonspecific symptoms,
such as vomiting or lethargy.19 In 2003,
Denton and Mileusnic published a
case in which a short fall off a bed
was followed by symptoms and death
seventy two hours later.20
Ophthalmology: Recent opthamological research has been instrumental in
questioning the third arm of the SBS
orthodoxy that retinal hemorrhages
are indicative of head trauma. It is now
known that, like subdural hemorrhages, retinal hemorrhages are present in
a wide array of natural conditions and
are often found at birth. This is consistent with research by Terson several
decades ago that identified increased
intracranial pressure as a cause of
retinal hemorrhages.21
In 2004, Dr. Patrick Lantz, a forensic pathologist, wrote a journal
article concluding that a retinal finding
previously thought to be diagnostic of
shaking was also found in accidental
trauma, and urged caution in interpreting eye findings.22 Since then,
Dr. Lantz has examined the eyes of
every deceased person in his autopsy
room through postmortem monocular indirect ophthalmoscopy and has
presented at numerous academic
conferences where he has confirmed

the presence of retinal hemorrhages in
accidental injuries and natural disease
processes.23
While some ophthalmologists
and pediatricians claim that inflicted
trauma can be diagnosed from the size
and shape of retinal hemorrhages,
there is no research corroborating
Since MRIs provide much more

accurate and complete information on
cause and timing of brain injuries, they
should be the standard protocol in
cases involving suspected child abuse.
Legal Ramifications
As a result of the new research,
persons convicted of SBS or related
Since the Geddes report, it has been

increasingly recognized that there are many
different kinds of subdural hemorrage...
this theory. Dr. Emerson and his colleagues at the renowned Wilmer Eye
Institute at Johns Hopkins University
concluded in a review article that the
mechanism of retinal hemorrhage
formation in child abuse has been the
subject of great speculation but little
agreement and admitted that findings
of child abuse based on ophthalmologic findings are based on speculation
rather than sound evidence.24
Radiology: When SBS theory was
developed in the 1970s, the only radiology procedures available were x-rays
of the head or invasive procedures
that were dangerous to the patient.
Subsequently, CT scanning became
available, and was increasingly used to
identify and attempt to time intracranial bleeds.
More recently, MRIs became available and it was realized that many
beliefs based on CT scanning were
incorrect. Dr. Barnes of Stanford has
been a leading advocate of MRI use
because CT scans do not provide
accurate timing and cannot reliably
distinguish between accidental trauma,
non-accidental trauma, and natural
causes. 25 This is confirmed in the
child abuse literature. 26
charges are now beginning to receive

post-conviction relief, a process that
is likely to continue.27 For instance,
Wisconsin courts granted post-conviction relief to Audrey Edmunds,
holding that she was entitled to a
new trial based solely on advances in
medical knowledge. After reviewing
the evidence, which pointed to aspiration pneumonia, the charges were
dropped.28
Internationally, the validity and reliability of diagnoses of pediatric head
injury, including shaken baby syndrome and blunt force or abusive head
trauma, have been called into question by a series of cases in the United
Kingdom and the Goudge Inquiry in
Ontario, Canada. On September 30,
2008, Justice Stephen Goudge called
for a review of more than 200 pediatric
head injury cases in Ontario, including
all shaken baby cases, based on five
months of hearings in which national
and international experts testified on
flawed pathology and misdiagnoses
that had resulted in false convictions.
In calling for case reviews, Justice
Goudge emphasized the advances
in medical knowledge and called on
judges to act as gatekeepers to protect
the legal system from flawed scientific

evidence and false convictions.29
A Strategy for Handling These Cases

Recent medical research makes
clear that the triad of findings (subdural hemorrhage, retinal hemorrhage,
and brain swelling) in a small child
does not automatically prove shaking
or abuse. What must be explained to
a jury is an alternative explanation as
to the significance (or lack thereof) of
the observed findings and that these
findings may be caused by accidents
(including short falls) and natural
causes that are mimics of nonaccidental head injury.
It is therefore imperative to use
experts to engage in a differential
diagnostic approach in looking at the
evidence. Professor Patrick Barnes
of Stanford University has identified
many alternative diagnoses for findings previously viewed as diagnostic of
SBS. These include infection, vascular
disease, coagulopathies (bleeding
disorders), venous thrombosis, or
metabolic disorders to name a few.
Often the death involves some combination of factors.30 A dehydrated child,
for instance, is particularly prone to venous thrombosis, a form of childhood
stroke that can present with the same
medical findings as SBS. A 2002 article
by leading forensic pediatricians lists
similar alternative diagnoses and notes
that some, but not all, of these entities can be excluded or confirmed by
careful history, physical examination,
radiological studies and/or laboratory
testing.31 A more recent book on child
abuse devotes two entire chapters to
alternative diagnosis.32 Since natural
causes are far more difficult to diagnose, it is crucial that you retain the
proper expert to analyze the medical
data.
Lets assume for the moment that
you and your experts concur with
the ME that the death was caused

by trauma.33 Two questions will then
arise: how can the state prove beyond
a reasonable doubt when the impact
occurred, and how can one medically
determine whether the trauma was
inflicted intentionally?
As noted above, MRIs are a useful
tool in making the determination of
age. However, in many cases, an MRI
has not been done. Instead, dating
must be done by CT scan (which
typically gives a range of 3 hours to 10
days) and determining whether iron
(hemosiderin) is found in the subdural
hemorrhage. It has been a long-term
benchmark that blood will not show
signs of iron in the subdural (or any
bruised area) until approximately 72
hours after the trauma.34 This was
documented in a journal article in 1936
and is still the accepted medical opinion.35 This long held opinion is now
questioned based on a 2001 journal
article36 which stated that hemosiderin
can be found as early as 24 hours after
trauma. If the states expert holds
this opinion (and timing is important
to your case), you should track down
the source of his opinion since, as far
as I have been able to determine, this
conclusion stems from an article that
was not footnoted and came, at best,
from experiments involving mice or
rabbits not humans. With that caution, if the subdural37 is iron positive, it
almost always means that the bleeding
began at least three days prior to death
and your client may have an ironclad defense.
If the dating of the bruise is consistent with when your client was with
the child, the next question is: Can the
medical evidence alone differentiate
between intentional and accidental
impact? Unless there is evidence of a
particular implement being used, the
answer is generally no. An impact
is an impact, regardless of whether it
was inflicted or accidental. In cases

involving rebleeds of a prior subdural,
the question is even harder because
a rebleed can occur from a very mild
impact, or no impact at all, especially
in combination with pre-existing conditions.
2.
Conclusion
4.
AN Guthkelch, Infantile Subdural

Hematoma and Its Relationship to
Whiplash Injuries, Infantile subdural hematoma and its relationship
to whiplash injuries BMJ 2, no. 5759
(1971): 430-31 and John Caffey, The
Whiplash Shaken Infant Syndrome:
Manual Shaking by the Extremities
with Whiplash Induced Intracranial
and Intraocular Bleedings, Linked
with Residual Permanent Brain Damage and Mental Retardation, Pediatrics 54, no. 4 (1974): 396-403.
5.
Mark Donohoe, Evidence-Based

Medicine and Shaken Baby Syndrome
Part I: Literature Review, 1966-1998,
American Journal of Foresnic Medicine
and Pathology 24, no. 3 (2003), Jan E.
Leestma, Case Analysis of Brain-Injured Admittedly Shaken Infants, 54
Cases, 1969-2001, American Journal
of Foresnic Medicine and Pathology 26,
no. 3 (2005). See also Dr. Leetsmas
treatise, Forensic Neuropathology 2nd
ed. (Boca Raton: CRC Press, 2008)
In terms of our practice, I do not

believe it is enough to simply say that
there is reason to doubt the states
case. Instead, because these are highly
emotional cases, one must have an
alternative explanation for the childs
death or collapse.38 Based on the
above, it should be clear that to provide an effective defense you will need
expertise in neuropathology, forensic
pathology, radiology, ophthalmology,
and biomechanics. The number of
expert witnesses depends on the facts
of the case. The quality of the expert
testimony also depends on you and
your expert knowing all the relevant
facts of the case. Nothing could be
worse than an expert opinion that is
questionable because it is based on a
misunderstanding of the facts of the
case.
Defending these cases is a very difficult task, but it is a task that we must
do successfully so that innocent clients
are not convicted of crimes committed
by others or, more often, of crimes
that did not occur at all.
3. Timing is critical since some medical

examiners, including the Snohomish
County medical examiner, claim that
they destroy these notes right after
dictating the report.
6. Recently, a case in Tacoma was declined for prosecution which received

newspaper coverage. No Charges
Filed in Toddlers Death, Tacoma
News Tribune, August 31, 2009.
7.
The prosecution generally no longer

describes these cases as SBS. Instead,
it is now called shaken impact or
blunt force injury cases although it
is still based on the triad, sometimes
combined with other features. The
transition to this diagnosis and its
significance will be explained later in
this article.
8.
Ann-Christine Duhaime and others,

The Shaken Baby Syndrome: A Clinical, Pathological and Biomechanical
Study, Journal of Neurosurgery 66, no.
3 (1987): 405-415.
9.
Werner Goldsmith and John Plunkett,

A Biomechanical Analysis of the
Causes of Traumatic Brain Injury in
Infants and Children, American Jour-
Neal Friedman is an attorney at the

Snohomish County Public Defender; he
can be reached at nfriedman@snocopda.
org.
Notes
1.
The same principles apply if the child

does not die. In that case, there will
be no medical examiner or autopsy
report and the radiology findings take
on greater significance but all other
issues are the same.
This article will provide citations to

some of the most influential articles in
this field.
nal of Forensic Medicine and Pathology

15, no. 2 (2004): 89-100.
10. Faris A. Bandak , Shaken Baby
Syndrome: A Biomechanics Analysis
of Injury Mechanisms, Forensic
Science International 151, no. 1: 71-79
(2005). While there is some dispute
over some of the calculations, these
disputes do not affect the underlying conclusion that, in shaking, neck
injury will precede traumatic subdural
hemorrhage.
11. Gregory D. Reiber, Fatal Falls in
Childhood: How Far Must Children
Fall to Sustain Fatal Head Injury?
Report of Cases and Review of the
Literature, American Journal of Forensic Medicine and Pathology 14, no. 3
(1993): 201-7.
12. John Plunkett, Fatal Pediatric Head
Injuries Caused by Short-Distance
Falls, American Journal of Forensic Medicine and Pathology 22, no.1
(2001): 1-12.
13. Scott Denton and Darinka Mileusnic,
Delayed Sudden Death in an Infant
Following an Accidental Fall, A Case
Report with Review of the Literature,
American Journal of Forensic Medicine
and Pathology 24, no.4 (2003): 371-76.
14. Paul Steinbok and others, Early Hypodensity on Computed Tomographic
Scan of the Brain in An Accidental
Pediatric Head Injury, Neurosurgery
60, no. 4 (2007): 689.
15 This term was used at the National
Institute of Health conference in early
2000. Brian J. Forbes and others.
Inflicted Childhood Neurotrauma
(Shaken Baby Syndrome) Ophthalmic
Findings, Ophthalmology and Strabismus 41, no.2 (2004): 81.
16. In a recent case, I had this exact
situation. The ER staff and pediatricians declared that the child died of
SBS based on the triad, but the ME
ruled the death was caused by shaken
impact.
17. JF. Geddes and others, Neuropathology of Inflicted Head Injury in Children
I. Patterns of Brain Damage, Brain
124, no. 7 (2001): 1290-1298 and Neuropathology of inflicted head injury in
children II. Microscopic brain injury
in infants, Brain 124 , no. 7 (2001):
1299-1306.
18. VJ Rooks and others, Prevalence

and Evolution of Intracranial Hemorrhage in Asymptomatic Term Infants,
American Journal of Neuroradiology 29
(2008): 1082-89.
19. MGF Gilliland, Interval Duration
between Injury and Severe Symptoms
in Non-accidental Head Trauma in
Infants and Young Children. Journal
of Forensic Science 43, no. 3 (1998):
723-725 43930.
20. See note 13 above.
21. See, for example., Ralph J. Medele
and others, Tersons syndrome in
subarachnoid hemorrhage and severe
brain injury accompanied by acutely
raised intracranial pressure, Journal
of Neurosurgery 88, no. 5 (1998): 85154
22. Patrick E. Lantz, Evidence based case
report: Perimacular retinal folds from
childhood head trauma, BMJ 328, no.
7442 (2004): 754-756.
23. See, e.g., Patrick E. Lantz and Jan E.
Leestma, Selected Topics in Forensic Pathology: Repsirator Brain,
Post-mortem Molecular Indirect
Opthalmoscopy (PMIO) (presentation at American Academy of Forensic
Sciences Annual Meeting, Seattle WA ,
February 20, 2006).
24. M. Vaughn Emerson, Elizabeth Jakobs, and W. Richard Green, Ocular
Autopsy and Histopathologic Features
of Child Abuse, Ophthalmology 114,
no. 7 (2007): 184-1394.
25. Patrick D. Barnes and Michael
Krasnokutsky, Imaging of the Central
Nervous System in Suspected or Alleged Nonaccidental Injury, Including the Mimics, Topics in Magnetic
Resonance Imagining 18, no.1 (2007):
53-75. At 56 (magnetic resonance
imaging should be conducted as soon
as possible because of its sensitivity
and specificity regarding pattern of
injury and timing parameters; imaging
should include MRA and MRV)
26. Glen A. Tung and others, Comparison of Accidental and Nonaccidental
Traumatic Head Injury in Children on
Noncontrast Computed Tomography,
Pediatrics 118, no. 2 (2006): 626-633.
27. See Deborah Tuerkheimer, The
Next Innocence Project: Shaken Baby
Syndrome and the Criminal Courts,

Washington University Law Review
87.(2009) (forthcoming)
28. State of Wisconsin v. Edmunds, Appeal
No. 2007AP933, Wisconsin Court of
Appeals, Dist. IV, pet. to rev. denied
(2008).
29. The Honorable Stephen T. Goudge,
Inquiry into Pediatric Forensic Pathology in Ontario (30 September 2008).
30. See note 25 above.
31. Kent P. Hymel, Carol Jenny and
Robert W. Block, Intracranial Hemorrhage and Rebleeding in Suspected
Victims of Abusive Head Trauma: Addressing the Forensic Controversies,
Child Maltreatment 7, no. 4 (2002):
329-348.
32. A. Sirotnak, Medical disorders that
mimic abusive head trauma, in Lori
Frasier and others, Abusive Head
Trauma in Infants and Children: A
Medical, Legal, and Forensic Reference,
(St. Louis: GW Medical Publishing
2006)
33. The best evidence of trauma will be
observable injury to the brain which
will be captured by the slides or photographs at autopsy.
34. This is due to the metabolism of the
blood in the bruised area forming
iron.
35. D Munro and HH Merritt, Surgical
Pathology of Subdural Hematoma
Based on a Study of 105 Cases, Archives of Neurology and Psychiatry 35
(1936): 64-79.
36. P Vanezis, Interpreting Bruises at
Necropsy, Journal of Clinical Pathology 54 (2001): 348-355.
37. The ME will also take tissue samples
from other bruises on the childs body,
in particular, any bruises on the scalp.
The 72 hour rule applies.
38. In many cases, your expert will explain that it is medically impossible to
know exactly why this child died but
that s/he believes that the evidence
does not support a conclusion that
the cause of death was intentionally
inflicted trauma. Your expert should
then explain what the alternate cause
of death might be and identify the
facts supporting this diagnosis.
Briefs
accessible for members and make sure
they are user friendly.
A new WACDL website will be
delivered to its members in the coming months. The website will feature
an expanded public section and a
more versatile email discussion group
system with searchable archives. In response to member interest, there will
also be the option for list subscribers
to communicate either through email
or a forum interface.
WACDL NEWS
Todd Maybrown, New WACDL President,
Sets Priorities for Year
Todd Maybrown always knew he
wanted to work in criminal defense,
but says he wasnt hard enough to do
prosecutions. I recognized at a fairly
young age that it was more important
to help individuals with problems than
to be working for the side thats rallying against them.
Starting out in his career, some of
WACDLs greatest lawyers were his
heroes. Now hes joined their ranks
in WACDLs leadership. He became
WACDLs president at the June 2009
annual conference.
With an illustrious practice of nearly
20 years, Todd has handled all types
of criminal cases and civil claims. He
has been recognized for his expertise
in representing capital defendants and
named a Washington Law and Politics
Super Lawyer for six years running.
For over four years, Todd has
taught in the University of Washington
Law Schools trial advocacy program,
something he really enjoys. Theres
nothing better than meeting new
lawyers who are pure, not jaded, who
havent been to court. He likes that
theres no grading. Its just learning to
practice trial skills as best as you can.
His priorities for the year can be
summed up nicely: he wants to see
WACDL be made as open and accessible as possible to all of its members.
Its not just lawyers in Seattle.
It should be for all defense lawyers
whether theyre handling a DUI or
a murder case so they can better
represent their clients.
This includes seeing that more
attention be paid to public defenders,
LEGISLATION
Preparations for the 2010 Session
and WACDLs new Public Defense

Committee is currently developing
resources to better support public
defenders.
WACDL needs to work on ensuring and providing resources to public
defenders, especially in this time of
fiscal crisis.
He would also like to see newer
members get involved in WACDLs
activities and take on leadership roles.
Its not just for the older folks, we
need new, young leaders too. There
are so many things we need, he says.
Take the legislative committee. So
much work needs to be done. Members might feel shy about talking and
advocating our positions to legislators,
but they really shouldnt its something they can do. We want to invite
members to do as much as they want
and can.
A makeover of WACDLs electronic
resources is also on Todds agenda.
Todd wants to see WACDLs website,
e-mail lists and resources be easily
The WACDL/WDA Legislative Committee has identified priority issues

for our work in the 2010 legislative
session:
Public Defense Funding: While
this isnt a budget year, legislators
facing yet another reduction in
state funding will be working
on a supplemental budget. We are
hoping to avoid cuts to state funding
for trial level public defense, public
defender training, and TeamChild.
Forensic Lab Oversight: We are
continuing the effort we began in
the 2009 session to add defense
lawyers and independent scientists
to the Forensic Investigations Council, which provides oversight to the
state crime labs. Mark Prothero,
Peter Camiel, Ted Vosk, and Bill
Bowman have worked on this issue
and participated in meetings planning our efforts.
Juvenile Law: We will respond to
potential juvenile legislation related
to guns and/or gangs.
Expungement: We have drafted
legislation in response to State v
Young, decided Sept. 9, 2009 by

Division II of the Court of Appeals,
denying a persons attempt to have
her court file expunged more than
two years after a dismissal had been
entered in her case by the court because the court found that although
the court was a criminal justice
agency within the meaning of the
statute, and the record in question
was clearly non-conviction data
subject to deletion, the case file
was not criminal history record
information because 10.97.030
(1) excludes the records of courts
from the definition of criminal
history record information and
therefore could not be deleted or
destroyed. Mark Prothero, Nancy
Talner, and Kim Gordon have been
taking the lead on this issue.
Waiting Period to Vacate Records: Currently, you cant vacate
a class C felony until you have had
five years of crime-free behavior
after the payment of all LFOs to
vacate a class C felony, and 10 years
of crime-free behavior after the payment of all LFOs to vacate a class
B felony. Our proposal is to give
the court discretion to vacate after
five years of crime-free behavior
and payment of all LFOs to vacate
a class C felony, and 10 years of
crime-free behavior and payment of
all LFOs to vacate a class B felony.
The idea is to not wait until after
payment of LFOs to start counting
the period of crime-free behavior
but still require payment of LFOs
before vacation. Bob Naon drafted
this proposal.
In addition, we have been working
on a number of other issues:
CLE CALENDAR
You Gant Do That! Current Issues in Search & Seizure
December 4 in Seattle
Speakers & topics: Richard Hansen (Terry Stops and Pretext Searches),
Tom Conom & Derek Conom (Gunwall update), Andrew Schwarz (jurisdictional limits to police powers), David Donnan (appellate update), Roy
Howson (anatomy of a search), Jeff Kradel (school searches), Scott Leist
(understanding law enforcement approach to searches), Jill Bernstein (ethics). Lee Grochmal & Jim Sedney, program co-chairs. WACDLs holiday
party will be held the same evening. Sponsor: WACDL
Ethics 2009: Ineffective Assistance & Misconduct
December 11 in Seattle
Speakers & topics: Prof. Robert C. Boruchowitz (misdemeanor case overload), Eric Broman (prosecutorial misconduct), Steven Witchley (ineffective assistance), Mary High (jury misconduct), David Allena & Douglas
J. Ende (Bar grievances), Reiko Callner, Judge Ronald Kessler, & Collen
OConnor (view from the bench. 6.25 ethics credits. Sponsor: WDA
Three Strikes Forum
Januar y 15, 2010 in Seattle
Save the Date! More information to come on this all-day CLE ahead of the
2010 legislative session. Co sponsors: Seattle University School of Law, WDA
Sex Offense CLE
March 12 in Seattle
Sponsor: WACDL
WDAs Annual Defender Conference
April 23 & 24, 2010 Winthrop
Our annual conference and largest gathering of the year will focus on
gangs.
WACDL Annual Conference
June 10-12 in Chelan
WDA Webinars: To see a list full of upcoming WDA webinars, visit the
event calendar at www.defensenet.org.
WACDL Federal Bar CLE programs are held at noon, normally on the
second Wednesday of each month, at the Federal Courthouse in Seattle.
Please check the WACDL CLE Calendar at wacdl.org for more information.
DV: Amy Muth has been participating in a legislative workgroup, orga-
Washington Association of Criminal Defense Lawyers

1511 Third Avenue
Suite 503
Seattle, WA 98101
Change Service Requested
nized by Rep. Roger Goodman, that

is considering potential legislation.
DUI/Interlock: In early 2009, after
the new ignition interlock license
legislation took effect, members
identified several problems with the
legislation. Patricia Fulton prepared
information about these issues,
which we provided to Rep. Roger
Goodman, who had sponsored the
bill. Fulton met with him this fall,
and we are expecting Goodman to
propose legislation to correct many
of the problems we identified.
Guilty and Mentally Ill: Eileen
Farley and Daron Morris are representing the defense bar at a legislative work session on this issue.
Sentencing: We are monitoring
efforts of the Sentencing Guidelines Commission, which is working on proposals to (a) increased
discretion for judges; (b) increase
sentence ranges for high-scoring
offenders; and (c) reducing some
sentences in response to research

related to recidivism and the costbenefits to tax payers. Lenell Nussbaum and Mike Kawamura are the
defense bar members of the SGC.
Sex Offenses: Brad Meryhew has
been representing the defense bar
on the new Sex Offender Policy
Board, which is considering proposing legislation regarding registration, relief from registration, and
the penalties for failure to register.
Amy Muth and Kim Gordon are
working on proposals to amend a
bill drafted by the Attorney General
on sexual depictions of minors to
ensure that unwitting viewing does
not result in a conviction.
Statutor y Construction: Adam
Kline has set up an informal work
group to consider potential legislation in this area; Mike Hanbey is
representing the defense bar.
Three Strikes: We met with Sen.
Non-Profit Org.
U.S. Postage
PAID
Seattle, WA
Permit No. 1933
Adam Kline, who is working on a

proposal to make some three strike
prisoners eligible for parole.
Assault by Vehicle: We are
once again expecting legislation,
supported by the Cascade
Bicycle Club, to criminalize traffic
infractions, with no evidence of
driver recklessness or negligence,
when a bicyclist or pedestrian is
injured or dies. Bob Goldsmith,
Lenell Nussbaum, Daron Morris
and Mike Rosen are working on
this issue
Vulnerable Adults: John Sinclair
attended a meeting set up by another legislator to consider potential
legislative changes.
Please contact Christie Hedman
at WDA (hedman@defensenet.org
or 206-623-4321) or Teresa Mathis at
WACDL (teresa@wacdl.org or 206-6231302) if you are interested in participating in our legislative work.

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SHAKEN BABY FORENSICS FALSE ALLEGATIONS

November, 2009 Volume 23 No. 4

Tales from the Criminal Courts by Jeff Cohen

A Call to Arms by Mark Prothero

Bombs Away! Team effort results in dismissal for now.

Shaken Baby Syndrome by Neal Freidman

Medical research provides new tools for the defense in shaken

Washington Defender Association

110 Prefontaine Place South, Suite 610

Washington Criminal Defense is published four times a year.

WACDL News, Legislation, CLE Calendar

Tales from the Criminal Courts

she told her uncle that her father had

the point where police investigating

At every turn, the state sought to block our

tive undertook the investigation with

that the papers were attorney-client

 Defense November 2009

claims. In effect, we were able to raise

cess, but to the extent that the alleged

A Call to Arms: Part I

wrongful convictions were, at least in

50-60% of wrongful convictions were, at least

the National Academy of Sciences to

Arizona State University College of

Defense November 2009 

discusses the need for more

DNA evidence for courtroom

JUSTICE SCALIA ON THE NAS REPORT

 Defense November 2009

tive and helpful part of the report.

to confront the defendant, post, at 10, the same cannot

for improved oversight.

Using the Report

opinion. [see sidebar]

the National Academy Report concluded:

noted that the defense would be

rors that analysts may commit in interpreting the results

Defense November 2009 

in a given jurisdiction. The NAS

 Defense November 2009

Make a good record for appeals:

The Emperor Has No Clothes

the persons on the committee. A Path

2. Brandon Garrett and Peter Neufeld,

9. Seattle Times, February 19, 2009

11. Path Forward, 128. (emphasis added)

4. Garrett and Neufeld, Invalid Forensic

10. ASU News, February 9, 2009 http://

7. Committee on Identifying the Needs

16. In my pending case in King County involving firearm identification through

8. See Appendix A for biographies of

17. Path Forward, 107-10.

A Call to Arms: Part II

offered in a courtroom would be

Defense November 2009 

of the latent print community is

and tire impressions, toolmarks, and

10 Defense November 2009

when the factors that lead to the

The report is critical of the lack

side by side. The examiner makes

Defense November 2009

Defense November 2009

Defense November 2009

Defense November 2009

Defense November 2009

Defense November 2009