One of the most terrifying cases I ever handled involved the state’s decision to seize a child upon birth and to place it in the care of strangers. The theory supporting this cradle-robbing was predictive neglect. Because the parents were suspected of having shaken another of their babies and causing injury to it, the state thought it was justified in seizing any newborns before harm could come to them.
The parents denied ever having caused harm to the injured child. But because the infant suffered a constellation of symptoms consistent with deliberate injury, the state concluded that one or more of the parents were to blame. In the end, in one of the most bizarre compromises I have ever negotiated, the family agreed to leave the injured child to remain in foster care, so long as they could keep their newborn. To this day, I wonder about the rough justice of it all.
This morning’s New York Times’ cover story in the magazine section is about the legal theory supporting the state’s prosecution of those suspected of shaking their babies: Has a Flawed Diagnosis Put Innocent People In Prison: A Re-Examination Of Shaken Baby Syndrome, by Emily Bazelon.
Bazelon writes that between 1,200 and 1,400 children suffer head injuries attributed to abuse each year in the United States, resulting in 200 or so prosecutions. In more than half of these cases, the only evidence of assault comes in the triad of symptoms associated with shaken-baby syndrome: subdural hematomas, burst blood vessels in the eyes and brain swelling. Often there is no other proof of assault other than mere access to the child.
Medical opinion about causation of such injuries is divided. The view supporting prosecution theories of intentional harm asserts that the injuries are caused by trauma near in time to serious symptoms. But disturbing contraindications suggest that clinical picture is far more complex. An emerging theory has arisen in recent years noting that serious symptoms are often preceded by lethargy, lack of appetite and an increasing lack of acuity. Recent studies suggest that infantile stroke of unknown origin results in a significant percentage of those cases initially thought to be the result of intentional harm. Put another way, no one is to blame for the injury to the infant.
I worry that in the prosecution of a criminal case, theories of scientific causation and notions of blameworthiness are confused in ways that harm innocent people. As if that is not bad enough, the criminal law also confuses moral blameworthiness with proof beyond a reasonable doubt.
The criminal law is not about moral blameworthiness. I cannot emphasize this enough. Clients often come stammering to a lawyer’s office overborne by a sense of moral guilt regarding an act they very well may have committed. Some lie to their lawyer out of shame; others lie because they believe that if their lawyer knew the truth, the lawyer would not defend them. To such clients I always say something along the following lines: how you square up with God or your conscience is one thing, and it is something I cannot help you to do. My job is to protect you from the state. However good confession may or may not be for the soul, it often destroys a person’s prospects in the world of flesh and blood. Lawyers protect a person’s mundane liberty interests, they do not provide redemption for their souls.
Thus a person accused is presumed innocent. If the state cannot prove the allegations it has raised, the defendant goes free whether they are morally blameworthy or not. How often have I seen clients who have been preyed upon by police officers playing priest and offering the illusory absolution of a jailhouse confession. These confessions aren’t pastoral in purpose, they carry often harsh and devastating penal consequences.
Science concerns itself not at all with the care of souls. Its domain is the proof of causation, the relation of events occurring in space and time by means of mechanisms necessarily relating events. Symptoms expressed on Monday can only be said to be caused by Sunday’s harm if the scientist can explain a mechanism capable of testing by means of observation and repetition. Clinicians are quick to distinguish the objective symptoms of an injury from the narratives used to explain the harm. Simply put, the narratives don’t really matter, the stories we tell about harm are submitted to a mere test of plausibility, not proof beyond a reasonable doubt, much less proof of scientific causation.
In a shaken baby case, a horrible moral imperative gathers shape. A child who cannot speak is catastrophically injured or killed. Like Job, we cry “Why?” The scientist looks for a mechanism; the prosecutor looks to assign blame. Because the victim is vulnerable, we are reluctant to accept anything less than something like moral certainty: the destruction of innocence requires that we identify and confront evil.
But in such cases, the shape of the known world collides with all that is unknown. A tender moral conscience cannot easily accept anything other than a blameworthy defendant. Science is pressed beyond the limits of what can be asserted with confidence to satisfy a sense of moral outrage. When this drama is played out in a court of law, the result is far too often a miscarriage of justice. We sometimes convict with scientific proof simply because it feels good to do so.
Bazelon’s piece in this morning’s Times reports on several cases in which troubling questions have arisen regarding persons convicted without reliable scientific proof. The courts are beginning to retreat and reverse convictions obtained as a result of misplaced moral fury, and not proof. It is an encouraging sign, I say. But I say this with a sigh, recalling the baby taken from a client’s arms years ago simply because the state believed either she or her husband had once harmed another of her children.
Sometimes, I say, doing nothing is better than compounding that harm due to misplaced moral fury.