Shaken family

HOWELL, Mich.—In a Michigan probate courtroom on March 19, three or four dozen spectators watched attorney Betsy Geyer Sedore hold up enlarged photos of a fair-skinned, dark-eyed baby girl named Naomi Burns. A few feet away sat the baby’s father, Josh Burns, a bulky, bearded man wearing a yellow striped tie and showing little emotion.

“Naomi is the victim here,” said Sedore, an assistant prosecutor in Livingston County, Mich. “The focus needs to be on the child … not on the mother and father.” Twelve months earlier, medics had rushed the baby to the emergency room with vomiting, bleeding on the brain, and seizures. Doctors struggled to find the cause of her illness. The only recent accident the parents, Josh and Brenda Burns, said they knew of was a short tumble from Josh’s knee.

“What he says happened is not what happened. It doesn’t explain it,” said Sedore, raising her voice and describing Josh as a man with a temper, a drinking problem, and an assault record. “He’s not telling the truth.”

Sedore asked the judge, Miriam Cavanaugh, to give a proportionate jail sentence. Sedore had already convinced a 12-member jury a few weeks earlier to find Josh guilty of abusing Naomi by shaking her violently or repeatedly slamming her head into a soft surface.

But few in the audience for the sentencing hearing seemed to believe that account. Outside the courthouse, dozens of Josh’s supporters held signs protesting his innocence. His wife, parents, in-laws, and pastor say the idea he intentionally harmed his daughter is preposterous.

The pivotal issue in the case is the diagnosis doctors ultimately gave to Naomi: abusive head trauma, better known as shaken baby syndrome. Doctors often diagnose the syndrome when they can find no underlying cause for brain swelling, bleeding on the brain’s surface, and bleeding at the back of the eyes.

Since shaken baby syndrome was first described four decades ago, doctors and government health officials have warned of the dangers of shaking an infant. Prosecutors, relying on telltale medical signs of the syndrome, have thrown fathers, mothers, boyfriends, and baby sitters into prison for abuse.

In recent years, however, a growing number of doctors have challenged the diagnosis, pointing out that medical disorders and infections can cause shaken baby symptoms. Defenders of the diagnosis insist it is medically accurate and only made after ruling out other possibilities.

The reliability of the shaken baby diagnosis is vital in cases that lack witnesses or corroborating evidence. It may mean the difference between sending a child’s parents home or to jail.

It meant jail and a felony conviction for Josh Burns. After Sedore’s speech, Judge Cavanaugh sentenced him to one year in Livingston County Jail, effective immediately.

Josh, 38, has not seen Naomi since April last year, when she was 12 weeks old.

NAOMI’S TROUBLES SEEMED TO BEGIN the Sunday she was baptized, March 16, 2014, when she was 9 weeks old. She projectile vomited before church and became pale and clammy. The Burnses—first-time parents—worried and took her to the emergency room that afternoon, where the staff said she probably had a stomach virus.

But over the next few days, episodes of projectile vomiting, unresponsiveness, and seizures prompted the Burnses to return to the hospital repeatedly. Doctors tested for viral infections and performed an electroencephalogram, but couldn’t find a definite cause for her illness.

The Burnses explained to hospital staff that on Saturday Naomi had suddenly lurched off Josh’s knee while he was home alone, burping her. He said he had caught Naomi by her face, in midair, leaving a slight bruise and scratch. The staff dismissed the event as irrelevant.

No doctors suspected abuse until, examining Naomi’s eyes at C.S. Mott Children’s Hospital in Ann Arbor, they discovered retinal hemorrhages—small blood leaks in the back of the eyes that are considered markers of shaken baby syndrome. A lead doctor approached Josh and Brenda and said their daughter appeared to have been abused.

The Burnses said they were dumbfounded. “We were just beside ourselves,” Brenda, 38, told me in a phone interview. “It was the time of greatest despair I think I’ve ever had in my life.”

A doctor from the hospital’s child protection team, Bethany Anne Mohr, took over the case. Naomi had no bone fractures or neck injuries, but an MRI showed bleeding on the surface of her brain. Mohr’s determination: Naomi had been abused, either by violent shaking or trauma to the head.

Child Protective Services launched into action, ordering Josh and Brenda not to stay overnight with Naomi at the hospital. When Naomi was stable enough to leave, agents from the Michigan Department of Human Services whisked her off to live with a nonrelative foster couple, saying Josh and Brenda posed a threat.

For the next 7½ months Brenda was only permitted to visit Naomi for three hours a week, supervised behind glass at a DHS office. She brought a blanket, toys, and books and played with Naomi on the floor. Josh was barred from visiting at all.

Meanwhile, prosecutors sought to strip Josh and Brenda of their parental rights. Brenda said they offered to drop charges against her if she would get a divorce.

To bolster their case, prosecutors dug up misdeeds from Josh’s past. He had pushed his sister down in a domestic assault incident and had brandished a pellet gun during a road rage dispute. He’d been a binge drinker and received a DUI in 2008.

‘I have to stand on truth, and trust in the Lord, that He will set this right.’

But the road rage and domestic violence incidents occurred nearly 20 years ago, when Josh was a young adult. “Josh was not a Christian,” said Brenda. “He was a wild man.” She said Josh has never abused her in nine years of marriage and had been sober for three years by the time Naomi was born. Although Brenda wasn’t home when the alleged fall from Josh’s knee occurred, she never doubted his account.

“We know Josh is innocent,” said Brenda’s mother, Nancy Gray. “Some people don’t understand forgiveness and redemption.”

The Burnses’ pastor, Del Belcher of Pathway Community Church in Brighton, Mich., said Josh never hid his past misdeeds and alcoholism. After the Burnses began attending Pathway five years ago, church members grew to respect them, and Josh was eventually nominated as a deacon.

“I would have trusted Josh and Brenda with my kids any day,” said Belcher. Josh, who has passed two polygraph tests, told me he declined an offer to plead guilty in exchange for a reduced sentence. “I have to stand on truth, and trust in the Lord, that He will set this right.” He said he has never abused his daughter or wife.

SHAKEN BABY SYNDROME is founded on the understanding that violently jarring a baby’s head can tear tiny veins in the membrane surrounding the brain and can cause veins in the eyes to leak. Pediatricians typically assume such injuries indicate child abuse unless they can pinpoint an alternate explanation for the bleeding—such as an infection, blood clotting disorder, or physical accident.

Many cases are relatively easy for doctors or prosecutors to spot: Bruises, broken bones, and inconsistent stories from parents and caretakers often corroborate the less obvious brain and eye injuries.

But sometimes little evidence of foul play exists outside the brain or retinal bleeding itself. Prosecutors may still point to the bleeding as sufficient evidence that, alone with a fussy baby, a parent or caretaker snapped.

Several prominent doctors have become doubtful of the shaken baby diagnosis, however, including retired British neurosurgeon Norman Guthkelch, whose research several decades ago helped define the syndrome. He now believes shaken baby prosecutions have “gone much too far.”

Early evidence for shaken head injuries came from a 1968 study of rhesus monkeys that used chairs mounted on 20-foot tracks to simulate high-speed whiplash. Ronald Uscinski, a neurosurgeon and adjunct faculty member at The George Washington University, said data from the monkey study was unjustifiably extrapolated to apply to babies manually shaken by adults.

“Based on this hypothesis, we’re putting people in jail,” Uscinski said.

Jennifer Del Prete, an Illinois mother of two, went to prison in 2005 after being convicted of shaking a baby to death at her home day care. Last summer—nine years later—she walked free on bond after a federal judge found “abundant doubt” regarding her guilt. The judge wrote shaken baby syndrome might be “more an article of faith than a proposition of science.”

Legal advocates suspect there are hundreds more questionable cases. An investigation published in The Washington Post in March found that about 1,600 persons nationwide have been convicted in shaken baby syndrome cases since 2001. So far, just 16 convictions have been overturned.

“Doctors make mistakes,” said Katherine Judson, a litigation fellow at the Wisconsin Innocence Project. “There’s no objective test that can test for abusive causation.” Pro bono lawyers with The Innocence Network are currently representing more than 100 shaken baby cases.

Defenders of the shaken baby diagnosis say years of medical research firmly support it. A majority of piglets mechanically shaken in a 2010 study developed inner eye bleeding or brain bleeding. And in a 2004 study of children with inflicted head injuries, 68 percent of confessed abusers said they had shaken the child.

“This dissent really comes from a handful of individuals who by and large make a living testifying in trials,” said Ryan Steinbeigle, the executive director of the National Center on Shaken Baby Syndrome. He said doctors only make the diagnosis after ruling out other causes and determining a parent or caretaker’s story doesn’t explain the baby’s injuries.

DURING JOSH’S CIVIL AND CRIMINAL TRIALS, a total of five doctors testified in his defense, arguing Naomi’s medical condition was not conclusive for abuse. They pointed to a crucial factor: Naomi’s traumatic birth. Brenda labored for four hours before hospital staff unsuccessfully attempted to extract Naomi with a vacuum device. When the baby finally emerged during an emergency cesarean section, she had a baseball-sized bruise on her scalp. The birth likely caused initial, unnoticed bleeding on the membrane surrounding her brain.

The defense doctors argued Naomi’s short fall from her father’s knee nine weeks later, before the birth trauma had fully healed, could have caused a rebleed on her brain.

Furthermore, hospital records showed Naomi had thrombocytosis, a condition making her prone to blood clots. Possible blood clots and pressure on her circulatory system might have caused the retinal bleeding.

“Retinal hemorrhages are something that can happen from a variety of causes,” said Joseph Scheller, a child neurologist and critic of shaken baby syndrome who testified in the trial.

But Mohr, the child protection team doctor, claimed Naomi’s retinal bleeding was too extensive to have been caused by circulatory pressure. She said abuse was the only credible explanation for the baby’s condition.

Mott Children’s Hospital told me Mohr was not available to comment on the case due to patient privacy rules.

Prosecutors, relying largely on testimony from Mohr, insisted the fall from Josh’s knee could not have caused Naomi’s bleeding. Since he was the last person alone with her, they told the jury, he had to be guilty. The jury agreed.

The jury cleared Brenda of abuse charges. She regained custody of Naomi in November and fled Michigan earlier this year because she worried CPS would try to take her daughter once again.

Josh faces another round of hearings to determine whether he’ll lose his parental rights. He has appealed his criminal conviction. “For the rest of my life on this earth, I will fight for families,” he said. “Good people are getting caught up in the cogs of a broken system where, when you’re accused of child abuse, you are guilty until proven innocent.”

Brenda said Naomi has no cognitive delays and is walking. She says words like bow-wow, mommy, and bye-bye. She’s learning to say daddy when she sees a photo of Josh.

Josh, meanwhile, is missing these childhood milestones. Although Brenda is allowed to have regular phone calls and occasional virtual visits with Josh using a webcam, Naomi can’t participate, she said.

“That would be breaking the no-contact order.”