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Dissent into Confusion: The Supreme Court, Denialism, and the False 'Scientific' Controversy Over Shaken Baby Syndrome

66 Pages Posted: 17 Jan 2014  

Joelle Anne Moreno

Florida International University (FIU) - College of Law

Brian Holmgren

Davidson County District Attorney

Date Written: December 18, 2013

Abstract

In the United States Supreme Court's first opinion on the merits from its 2011-2012 term, three members of the Court contributed their authoritative voices to one of the most recent -- and one of the most deadly -- false scientific controversies, the purported scientific debate over the medical diagnosis of shaken baby syndrome (SBS), a prevalent form of abusive head trauma (AHT).

On October 31, 2011, in Cavazos v. Smith, the Supreme Court upheld Shirley Ree Smith's conviction for causing the death of her seven-week-old grandson, Etzel. This conviction was based on the jury finding that Etzel died from SBS. Following a brief review of the evidence presented at trial, the Supreme Court issued a scientifically accurate per curiam decision. The Court held that the Ninth Circuit had improperly "substituted its judgment for that of a California jury on the question of whether the prosecution's or defense's expert witnesses more persuasively explained the cause of a death."

Justice Ginsburg, joined by Justices Breyer and Sotomayor, seized this opportunity to issue an unusual and scientifically inaccurate dissenting opinion. Based on their review of the medical and nonmedical evidence presented in this case, the dissenters opined that "[f]ew of the signs of SBS were present." More generally, the dissenters believed that "[d]oubt has increased in the medical community 'over whether infants can be fatally injured through shaking alone.'" Because these three justices purport to describe the shifting opinion of the "medical community," one might initially mistake this finding for a distillation of the relevant medical literature on abusive head trauma/shaken baby syndrome (AHT/SBS). Nothing could be further from the truth. Instead the dissenters engage in two different, significant, and interrelated jurisprudential errors. The first jurisprudential error, which will be fully addressed in this Article, is the dissenters' conclusion that few of the signs of SBS were present in this case which misconstrues the medical and nonmedical evidence presented by the prosecution and defense. The second is their sweeping conclusion that doubt has increased within the medical community regarding SBS which is based on the dissenters' careless and irresponsible independent extra record judicial fact-finding and contradicted by over seven hundred AHT/SBS medical articles written over the past four decades. This type of faux fact-finding, which perpetuates the false SBS controversy, will be addressed in detail in a subsequent companion article.

Keywords: Cavazos v. Smith, Shaken Baby Syndrome, AHT/SBS, scientific controversy, evidence based, Commonwealth v. Woodward, State v. Edmunds, medical evidence, nonmedical evidence, post-conviction review, legal standard, appellate review, expert testimony, child abuse, child homicide

Suggested Citation

Moreno, Joelle Anne and Holmgren, Brian, Dissent into Confusion: The Supreme Court, Denialism, and the False 'Scientific' Controversy Over Shaken Baby Syndrome (December 18, 2013). Utah Law Review, No. 1, 2013; Florida International University Legal Studies Research Paper No. 13-37. Available at SSRN: https://ssrn.com/abstract=2369562

Joelle Anne Moreno (Contact Author)

Florida International University (FIU) - College of Law ( email )

11200 SW 8th St.
RDB Hall 1097
Miami, FL 33199
United States
305-348-1152 (Phone)
305-348-7293 (Fax)

Brian Holmgren

Davidson County District Attorney ( email )

Nashville, TN
United States

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