UPDATE: WHAT LAWYERS NEED TO KNOW ABOUT THE MEDICOLEGAL SCIENCE (INCLUDING BAPP STAINING) ASSOCIATED WITH ABUSIVE HEAD TRAUMA Mark C.

Transcription

1 UPDATE: WHAT LAWYERS NEED TO KNOW ABOUT THE MEDICOLEGAL SCIENCE (INCLUDING BAPP STAINING) ASSOCIATED WITH ABUSIVE HEAD TRAUMA Mark C. Prugh Prugh Law Office 328 Historic Route 66 East Waynesville, Missouri 65583

2 Primary References: National Research Council of the National Academies, Strengthening Forensic Science in the United States: A Path Forward (2009) [hereinafter National Academy of Sciences Report or NAS Report] MELENDEZ DIAZ V. MASSACHUSETTS, 557 U.S. 305, 129 S.CT. 2527, 174 L.ED2D 314 (2009) [hereinafter Melendez Diaz] ANTHONY RAY HINTON V. ALABAMA, U.S., 134 S.CT. 1081, 188 L.ED.2D 1 (February 2014) [hereinafter Hinton] Flawed Convictions, Shaken Baby Syndrome and the Inertia of Injustice by Deborah Tuerkheimer, (Oxford Press April 2014) [hereinafter Flawed]

3 NATIONAL ACADEMY OF SCIENCES REPORT With the exception of nuclear DNA analysis... no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source. NAS Report at 7.

4 NATIONAL ACADEMY OF SCIENCES REPORT 2009 NAS REPORT: 223 postconviction DNA exonerations in US between 1989 and November NAS Report at 42. INNOCENCE WEBSITE 4/7/2015: 329 post conviction DNA exonerations in United States history. NACDL 2013: 17 Shaken Baby Syndome (SBS) Exonerations. NACDL CLE Handout, Defending Shaken Baby/Abusive Head Trauma Cases: New Challenges to the Shaken Baby Hypothesis, Keith Findley, Heather Kirkwood & Dave Moran (2013) THERE S A PROBLEM: even those who are critical of the conclusions of The Innocence Project acknowledge that faulty forensic science has, on occasion, contributed to the wrongful conviction of innocent persons See J. Collins and J. Jarvis The wrongful conviction of forensic science. Crime Lab Report. July 16. Available at also N. Rudin and K. Inman Who speaks for forensic science? News of the California Association of Criminalists. Available at p. 10.

5 APPLICATIONS BEYOND THOSE ADDRESSED IN THE NAS REPORT: SHAKEN BABY/ABUSIVE HEAD TRAUMA Faith in SBS has not yet been subjected to the same institutional critique. The diagnosis was not mentioned in the National Academy s report, and overall it has remained largely insulated from the insights of the failed science movement in particular, that individuation like claims may not be warranted. Prosecution experts still testify to certainty regarding the triad, and the patina of science continues to sway jurors. Flawed at 49.

6 APPLICATIONS SBS/AHT CONT D [G]iven the prestige of the National Academy and the process by which it reached its conclusions, publication of the report was rightly understood as a water shed moment for the forensic sciences. Flawed, p. 49 citing to Jennifer L. Mnookin et al., The Need for a Research Culture in the Forensic Sciences, 58 UCLA L. REV. 725, 732 (2011) (Congress commissioned the report late in 2005 at the behest of the forensic science community itself. The Academy appointed a panel of judges, scholars, and forensic and legal practitioners to write the report. ) In other words: The principles set forth in the NAS Report should be applied generally to all scientific evidence including, but not limited to SBS and AHT.

7 WHY SBS IS JUNK SCIENCE AND AHT IS WORSE THE LOGIC OF SBS: TRIAD = SUBDURAL BLEEDING + RETINAL HEMHORRAGE + BRAIN DAMAGE TRIAD = SHAKEN BABY (I.E. CAUSATION)

8 WHY SBS IS JUNK SCIENCE AND AHT IS WORSE BUT THE MECHANISM OF CAUSATION (SHAKING) HAS BEEN SO THOROUGHLY DEBUNKED THAT EVEN THE MOST BIASED PROSECUTION WITNESS WILL NOT ALLOW SHAKEN BABY TO ESCAPE THEIR LIPS ANY MORE. Upon analysis, absolutist claims made on behalf of the triad could not be supported. Flawed at 17.

9 WHY SBS IS JUNK SCIENCE AND AHT IS WORSE THE LOGIC OF ABUSIVE HEAD TRAUMA: TRIAD = AHT PROBLEM FOR THE PROSECUTION: TRYING TO PASS AHT OFF AS THE NEW SBS HAS TO FAIL SINCE NOW THEY HAVE: 1. AN UNKNOWN MECHANISM 2. AN UNKNOWN FORCE 3. UNKNOWN TIMING 4. UNKNOWN ORIGIN FLAWED at 20 25

10 WHY SBS IS JUNK SCIENCE AND AHT IS WORSE PROBLEM FOR THE STATE: The triad is a myth, declared a leading child abuse specialist and advisory board member of the National Center on Shaken Baby Syndrome in No trained pediatrician thinks that subdural hemorrhage, retinal hemorrhage and encephalopathy [brain damage] equals abuse. FLAWED at 17, Citing to Carole Jenny, Presentation on The Mechanics: Distinguishing AHT/SBS from Accidents and Other Medical Conditions, New York City Abusive Head Trauma/Shaken Baby Syndrome Training Conference (Sept. 23, 2011).

11 TIP FOR PRACTITIONERS FILE PRE TRIAL MOTIONS 1 ATTACKING ALL OF THE PROSECUTION S SCIENCE DEMANDING: 1. KNOWN ERROR RATES. 2. PROPER SCIENTIFIC CONTROLS. 3. APPROPRIATE CONSIDERATION OF BIAS. 4. ANY OTHER APPLICABLE BASIC REQUIREMENT OF PROPER SCIENCE (SEE THE NAS REPORT &/OR YOUR CHILD S HIGH SCHOOL SCIENCE TEACHER). 1 REGARDLESS THE STANDARD YOUR JURISDICTION S CASES SAY APPLIES TO CRIMINAL CASES (FRYE, DAUBERT, KUMHO TIRE, RSMO , OTHER) ASK THE TRIAL COURT TO ENFORCE THE NAS STANDARDS BASED ON MELENDEZ DIAZ, HINTON, AND THE NAS REPORT ITSELF.

12 THE THEORY BEHIND BAPP STAINING: β amyloid precursor protein (βapp) immunoreactivity is a marker of axonal damage that some experts are willing to say is associated with a traumatic causation.

13 MISSOURI V. EVANS, SD October 6, 2009: Frye hearing held with Defense requesting that Dr. Mary Case be precluded from testifying about her: personally developed protocol/methodology she uses in examining child brains for the presence or absence of traumatic axonal injuries. Because her protocol involves subjective determinations by her in distinguishing between traumatic and non traumatic injuries and [t]hat while Dr. Case testified she has published articles on her subjective self produced protocol/methodology and she could and would produce such articles, and she did supply the Defendant with some recent articles; none address or describe her subject (sic) self produced protocol/methodology.

14 TRIAL COURT RULING IN 2009 FOLLOWING FRYE HEARING IN EVANS: BAPP testing is generally accepted in the scientific community, that Dr. Mary Case s protocol/ methodology was called into question as to her results on traumatic axonal injuries as compared to HIE; the court finds that the dispute did not prevent the admissibility of the test but goes to the weight of the witness and the test which can be presented to the Jury.

15 STATE V. JOHNSON, 402 S.W.3d 182 (MO. APP. E.D. 2013): The State offered the transcript from a 2009 case that held a Frye hearing on BAPP staining. Based on the testimony in this transcript [NOTE: THE TRANSCRIPT IS FROM STATE V EVANS WHICH IS STILL, AS OF APRIL 7, 2015, ON DIRECT APPEAL TO THE SOUTHERN DISTRICT], the trial court concluded that BAPP staining was a procedure generally accepted in the scientific community.... Based on this record, a Frye hearing was not necessary to admit Dr. Case's testimony on BAPP staining. Id., at

16 THE LITERATURE BEFORE THE EVANS COURT: 1. Geddes, J., Vowles, G., Beer, T., & Ellison, D. (1997). The diagnosis of diffuse axonal injury: Implications for forensic practice. Neuropathology and Applied Neurobiology, Oehmichen, M., Meiner, C., Schmidt, V., Pedal, I., König, H., & Saternus, K. (1998). Axonal injury a diagnostic tool in forensic neuropathology? Forensic Science International, Geddes, J., Whitwell, H., & Graham, D. (2000). Traumatic axonal injury: Practical issues for diagnosis in medicolegal cases. Neuropathology and Applied Neurobiology, Geddes, J., Vowles, G., Hackshaw, A., Nickols, C., Scott, I., & Whitwell, H. (2001). Neuropathology of inflicted head injury in children: II. Microscopic brain injury in infants. Brain, (124), Reichard, R., White, C., Hladik, C., & Dolinak, D. (2003). Beta Amyloid precursor protein staining of nonhomicidal pediatric medicolegal autopsies. Journal of Neurotrauma, Dolinak, D. & Reichard, R. (2006). An overview of inflicted head injury in infants and young children, with a review of ß Amyloid precursor protein immunohistochemistry. Arch Patrol Lab Med. (130), Case, M. (2008) MINI SYMPOSIUM, Inflicted Traumatic Brain Injury in Infants and Young Children. Brain Pathology, Johnson, M., Stoll, L., Rubio, A., Troncoso, J., Pletnikova, O., Fowler, D., & Li, L. (2011). Axonal injury in young pediatric head trauma: a comparison study of ß Amyloid precursor protein (ß APP) immunohistochemical staining in traumatic and nontraumatic deaths. American Academy of Forensic Sciences. 1 8.

17 THE STATE S THEORY: What do Lawyers Need to Know About the "Medicolegal Science" (Including BAPP Staining) Associated with "Abusive Head Trauma"? NOTHING, JUST GIVE IT TO THE JURY AND LET THE EXPERTS SORT IT OUT.

18 THE LITERATURE BEFORE THE COURT: THREE KEY POINTS: I. BAPP DETECTS ALL AXONAL DAMAGE (NOT JUST THAT CAUSED BY TRAUMA). II. THOSE WHO DIE WITHIN A SHORT TIME (3 HOURS TO 24 HOURS) WILL HAVE NO BAPP REACTIVITY AT ALL. BAPP STAINING ONLY SHOWS POSITIVE IN A PERSON WHO SURVIVES FOR A WHILE (3 24 HOURS) AFTER COLLAPSE WHICH REQUIRES BAPP AND MICROGLIAN MARKERS LIKE CD 68 TO DETECT DAMAGE. III. NOT ENOUGH IS KNOWN ON THE SUBJECT FOR DEFINITIVE/DOGMATIC SOLUTIONS.

19 THE LITERATURE BEFORE THE COURT: THREE KEY POINTS: I. BAPP DETECTS ALL AXONAL DAMAGE (NOT JUST THAT CAUSED BY TRAUMA). #1: "BAPP positivity merely indicates interruption to fast intra axonal transport regardless of aetiology, and it is important to exclude the other causes of white matter pathology before attributing changes seen in axons to trauma. #2: It can be further stated that demonstration of Axonal Injury (AI) using BAPP is highly sensitive, but by no means specific for a particular type of injury. In our material, AI occurred after mechanical traumatization and after ischemic hypoxic injury. This finding is of fundamental importance, since it shows that AI cannot be assumed to result from mechanical injury alone. #3: [L]ike BAPP expression, microglial nodules are not specific for trauma. #5: These results demonstrate that features other than traumatic axonal injury, such as metabolic insults and hypoxicischemic injury secondary to vascular compromise, must contribute to BAPP immunostaining. #5: In adults, beta amyloid precursor protein (BAPP) immunostaining has been used to enhance the detection of traumatic axonal injury (TAI), and a variety of nontraumatic disorders that affect white matter, for example, multiple sclerosis, human immunodeficiency virus (HIV) encephalitis, hypoxic ischemic injury (1), and hypoglycemia.(2)... Furthermore, areas of our cases, when viewed in isolation, mimicked TAI.... These findings indicate that in infants and young children the pattern of perivascular axonal immunoreactivity should not be interpreted as definitive evidence of trauma.... In summary, this study confirms that a variety of processes may lead to the emergence of BAPP immunoreactive axons." #6: Beta Amyloid precursor protein immunostains may be helpful in illustrating the traumatic nature of the injuries in some cases.... BAPP immunostaining is not specific for traumatically injured axons because it also will stain axons injured by other, different mechanisms. This is one of the caveats to the accurate use of BAPP immunostaining. #7: The axonal damage detected is damage of any type and not specific to traumatic injury."

20 THE LITERATURE BEFORE THE COURT: THREE KEY POINTS: II. THOSE WHO DIE WITHIN A SHORT TIME (3 HOURS TO 24 HOURS) WILL HAVE NO BAPP REACTIVITY AT ALL. BAPP STAINING ONLY SHOWS POSITIVE IN A PERSON WHO SURVIVES FOR A WHILE (3 24 HOURS) AFTER COLLAPSE WHICH REQUIRES BAPP AND MICROGLIAN MARKERS LIKE CD 68 TO DETECT DAMAGE. #1: Early detection of BAPP positivity should be interpreted with extreme caution. With very short survival times of less than 24 hours, the most useful statement about BAPP immunostaining may be that it is absent. #1: With survival over 24 hours, however, a panel of immunohistochemical markers comprising BAPP in combination with a microglial marker such as CD68, provides a satisfactory means of diagnosing traumatic axonal damage. #2: Since AI can only be detected by BAPP after a posttraumatic survival of about 3 hours, it cannot be ruled out that intervening additional ischemic hypoxic injury or edema has produced the secondary or reactive, nondisruptive type of AI. Therefore, AI cannot be interpreted as indicating a rotatory acceleration/deceleration event. #6: In some cases, death or cessation of cerebral perfusion occurs rapidly (minutes to hours) after head injury and no BAPP immunoreactive axons will be detected.

21 THE PROBLEM: WHAT EVERY DOCTOR KNOWS AND CANNOT GET PAST EVEN USING BAPP STAINING PERCENTAGE OF AXONAL DAMAGE PERCENTAGE OF VISIBLE AXONAL MADE VISIBLE USING BAPP STAIN TIME INTERVAL OF DAMAGE IDENTIFIED USING BAPP ING WHEN COLLAPSE AND DEATH 3 TO 24 HOURS STAINING THAT 82% OF ONE GROUP ARE SIMULTANEOUS DOCTORS AGREE MAY SHOW TRAUMATIC CAUSATION WHEN SURVIVAL > 3 24 HRS 0% 100%

22 THE LITERATURE BEFORE THE COURT: THREE KEY POINTS: III. NOT ENOUGH IS KNOWN ON THE SUBJECT FOR DEFINITIVE/DOGMATIC SOLUTIONS: #2: By the same token, it is extremely difficult to establish a clear correlation between the extent and distribution of AI in the brain and the underlying biomechanical process and clinical picture. As mentioned above, correlations do apparently exist; they are, however, loose and do not allow definite conclusions regarding the neurological picture based on morphology. #3: the lack of well documented assault cases in which there has been a full neuropathological examination means that it is impossible to be certain about the type of blow or injury that would have caused the damage in a particular case. #3: The lack of correlation between well documented histories and neuropathological findings means that in the interpretation of assault cases at least, a diagnosis of Traumatic Axonal Injury ('TAI') or Diffuse Axonal Injury ('DAI') is likely to be of limited use for medicolegal purposes. It is important to realize that Traumatic Axonal Injury (TAI) in infants has not been studied at all, and its evolution may well be different from that in older children and adults. #4: Widespread axonal damage, interpreted as vascular, was present in 13 cases, but widespread traumatic axonal injury was found in only two children, both of whom had severe head injuries with multiple skull fractures. #6: In some cases, exuberant BAPP immunoreactivity may preclude accurate interpretation of the staining pattern. For example, cases with severe brain swelling and multiple areas of infarction may have such an intense and widespread background staining of Vascular Axonal Injury (VAI) that the presence of Diffuse Traumatic Axonal Injury (dtai) either cannot be deciphered or may be underappreciated.

23 THE LITERATURE BEFORE THE COURT: THREE KEY POINTS: III. NOT ENOUGH IS KNOWN ON THE SUBJECT FOR DEFINITIVE/DOGMATIC SOLUTIONS (CONTUED): : #6: Beta Amyloid precursor protein immunostains are currently a useful diagnostic tool in the neuropathological evaluation of inflicted TBI. The BAPP helps determine whether there is traumatic, vascular, and/or metabolic axonal injury. As is true for the use of any immunostain, a correct interpretation requires knowledge of the strengths and weaknesses of the antibody. The BAPP results are but one part of the complete case investigation and evaluation." #6: In most fatal cases, there has been significant impact injury to the head. As is true with most topics of medicine, our understanding of pediatric traumatic head injury is incomplete, but continues to advance. With continued experience and research, we will continue to gain a fuller understanding of pediatric head injury." #7: "The neuropathology of the brain in cases of inflicted head injury in young children remains poorly studied or documented. #8: "Although the utility of BAPP is quite powerful if not confounded by global hypoxic ischemic injury, ultimately, BAPP studies should be only one piece of information in the determination of cause and manner of death." #8: "In conclusion, BAPP immmunohistochemical staining of brain material is a useful tool for the confirmation of brain injury. However, its application is not a panacea. Children who did not sustain head trauma but who survive resuscitation to linger on ventilator support may have extensive axonal staining that may be interpreted as false positive evidence of traumatic injury. Therefore, BAPP should be used carefully as a marker of brain injury in determination of cause of death.

24 THE LITERATURE BEFORE THE COURT: FOURTH POINT: THE THEORY THAT AXONS ARE DAMAGED IMMEDIATELY UPON IMPACT IS NO LONGER VALID AND ALTERNATIVE SOLUTIONS ARE UNOBSERVABLE/UNEXPLORED #6: Detection of traumatically injured axons in the pediatric brain on routine sections stained with hematoxylin eosin (H&E) is difficult and often impossible without at least an 18 to 24 hour posttrauma survival time. This is because traumatically damaged axons are not usually "snapped" and disconnected immediately at the time of injury. Instead, traumatic injury typically creates small tears in the wall of the axon, which allow for the subsequent inward flux of calcium, proteases, and other substances into the axon. These substances then lead to a progressive physiologic disruption of the integrity of the axon, resulting in wall weakening, dilatation, and finally disconnection of the axon, a process known as secondary axotomy. As a result, the damaged axon undergoes gradual morphologic changes, becoming more and more irregular, wavy, and thicker, eventually assuming a beaded appearance (axonal swellings) and finally a bulbous appearance as axonal disconnection occurs (axonal bulbs). Thus, the old descriptor of "retraction balls," previously believed to occur from the sheared axon retracting, is not accurate.

25 THE SCIENCE BEHIND BAPP: 1. KNOWN ERROR RATES. 2. PROPER SCIENTIFIC CONTROLS. 3. APPROPRIATE CONSIDERATION OF BIAS. 4. ANY OTHER APPLICABLE BASIC REQUIREMENT OF PROPER SCIENCE (SEE THE NAS REPORT &/OR YOUR CHILD S HIGH SCHOOL SCIENCE TEACHER).

26 THE SCIENCE BEHIND BAPP: 1. KNOWN ERROR RATES. Doctors involved in research agree with each other, according to Dr. Case and article #6 by Dolinak and Reichard, that what they see is caused by trauma 82% of the time. BUT THIS IS NOT AN ERROR RATE, THEY COULD ALL BE WRONG (AND PROBABLY ARE). IF IT WAS AN ERROR RATE IT WOULD BE WOEFULLY INADEQUATE. GOVERNMENT LABS HAVE BEEN SHUT DOWN FOR 10% error rates. NAS Rpt at 44 Real Claimed Error Rate: 0%.

27 THE SCIENCE BEHIND BAPP: 1. KNOWN ERROR RATES (CONT D): Compare DNA Accuracy: DNA testing indicated that less than 0.5 percent of the population could match. State v. Bowman, 337 S.W.3d 679, 700 (Mo. 2011)..23 percent. State v. Dorsey, 318 S.W.3d 648, 651 (Mo. 2010). 0% Chance of Paternity. State v. Cook, 307 S.W.3d 189, 191 (Mo. App. E.D. 2010) 99.9% Chance of Paternity. Courtney v Roggy, 302 S.W.3d 141, 146 (Mo. App. W.D. 2009)

28 THE SCIENCE BEHIND BAPP: 2. PROPER SCIENTIFIC CONTROLS. DR. CASE SAYS THERE ARE NO SCIENTIFIC CONTROLS APPLICABLE TO HER PROTOCOL/METHODOLOGY DR. CASE HAS NOT PUBLISHED A PEER REVIEWED ARTICLE ON THIS SUBJECT (JUST SOME MINI SYMPOSIUM PAPERS) AND NONE OF HER PUBLIC WRITINGS MENTION HER PROTOCOL/METHODOLOGY AT ALL. HER ONE ATTEMPT TO PUBLISH A PEER REVIEWED ARTICLE ON SBS/AHT WAS REJECTED BY 4 OF 5 REVIEWERS AND WAS PUBLISHED AS A POSITION PAPER WHICH HAS EXPIRED (INTENTIONALLY UNRENEWED) BY NATIONAL ASSOC MED EX.

29 THE SCIENCE BEHIND BAPP: 3. APPROPRIATE CONSIDERATION OF BIAS. Dr. Case has been teaching that Doctors and others should take a prosecutorial approach to child abuse cases and that when two people are present when a child collapses they should both be charged. She also testifies that she, as a forensic neurologist, always has the last say on causation. THIS IS TRULY SCARY FOR THOSE INTERESTED IN JUSTICE.

30 THE SCIENCE BEHIND BAPP: 4. ANY OTHER APPLICABLE BASIC REQUIREMENT OF PROPER SCIENCE (SEE THE NAS REPORT &/OR YOUR CHILD S HIGH SCHOOL SCIENCE TEACHER). A Texas Trial Judge and the Texas Court of Criminal Appeals found Dr. Case s theories about AHT are on the fringe [not the two (2), Plunkett and Stephens, she accused of being on the fringe or the other eight (8) Doctors of medical and/or biomechanical sciences who testified in the case]. Ex Parte Cathy Lynn Henderson, 384 S.W.3d 833, (Cr. Crim. App. Tx 2012) It appears that Dr. Case told the Texas Courts that she had written on distinguishing traumatic from non traumatic injuries without disclosing that all she has written on that was a non peer reviewed mini symposium. Id.,

31 SUMMARY 1. SBS HAS BEEN PROVEN TO BE JUNK SCIENCE, AND FORMER ADHERENTS HAVE BACKED AWAY. 2. AHT IS LESS SCIENTIFICALLY RELIABLE THAN SBS. 3. BAPP SAYS ZERO ABOUT TRAUMATIC CAUSATION. 4. THE JOHNSON OPINION HAS NO PRECEDENTIAL VALUE.

32 QUESTIONS Mark C. Prugh 328 Historic Route 66 East Waynesville, Missouri Tel: FAX: E mail TO GET COPY OF SLIDES: brandy.reid@prughlaw.net Website to NAS report: