http://www.democratandchronicle.com/article/20090728/NEWS01/907280323/1002/NEWS
Grandmother seeks to reopen shaken-baby case
James Goodman • Staff writer • July 28, 2009
A 69-year-old Ontario County woman put behind bars for causing the death of her stepgrandson made clear at her sentencing in December 2007 that she would not take responsibility for what happened to 4-month-old Ethan Hershey.
Barbara Hershey shouted at her stepson, David Hershey, and his wife, Amanda, the parents of Ethan: "Why don't one of you admit that you did it?"
With a motion recently filed in Ontario County Court, Barbara Hershey hopes to reopen this emotionally charged case. She is serving a sentence of five to 15 years for second-degree manslaughter in the state's Albion Correctional Facility.
"David Hershey lied at trial. As a result, the conviction of Barbara Hershey was obtained by perjured testimony," says the court papers filed by J. Michael Chamblee, who is Barbara Hershey's lawyer. Traumatic brain injury caused by violently shaking the baby is the basis for Hershey's conviction.
Ontario County Court Judge Frederick Reed, who presided over the 2007 trial, will hold a hearing on this motion at the end of September. Hershey seeks to set aside the verdict, claiming that new evidence — not considered at trial — needs to be aired.
The Hershey case is part of a trend calling into question convictions based on shaken baby syndrome. Some say that injuries associated with the syndrome can have other causes.
Hershey's court papers contend that the 911 operator gave Barbara Hershey instructions for performing cardiopulmonary resuscitation on Ethan that were for an adult, rather than an infant, and suggest that the mistake could have killed him or led to a wrongful diagnosis of shaken baby syndrome.
Ontario County District Attorney Michael Tantillo, who prosecuted the Hershey case, calls her motion frivolous.
"The evidence presented at the trial overwhelmingly established Barbara Hershey's guilt of killing a little child. Many people testified at the trial that until the day he was killed, Ethan Hershey was a perfectly healthy kid," said Tantillo.
Tantillo also said that Barbara Hershey's emotional outburst at sentencing showed a "hair-trigger tendency" to lash out and "that this is what happened to Ethan."
Questions arise
On Oct. 25, 2005, David Hershey, who lived with his wife in Gorham, took their son and daughter Anna to Barbara Hershey's nearby home. While at the home, Ethan stopped breathing and, though resuscitated by emergency medical technicians, never recovered and died several weeks later.
David Hershey testified at the trial that there were no red flags about Ethan's health.
But a telephone conversation that Barbara Hershey's son, Gregory Donald Coston, 46, of Gorham, had with David Hershey in May 2008 and secretly taped puts a new focus on Ethan's health.
In that conversation Coston said, "David you're the one that told me 'the boy was a ticking time bomb.' You're the one that stopped and said, 'I'm going to need bail money by the time I get up there.'" David Hershey responded, "I did tell you that, yah, but I did not know that until he stopped breathing."
David Hershey also said: "I knew something was wrong with him."
Amanda and David Hershey now live in Ballston Spa, Saratoga County, and did not respond to telephone messages requesting comment.
Several weeks after Barbara Hershey's sentencing, Coston also secretly taped a conversation with Joan Colf, who is David Hershey's mother. According to the transcript, Colf said that Tantillo decided not to use her as a witness when he learned what she was going to say.
Later in the conversation, Colf told Coston, "I saw problems with my grandson, but there is not — I cannot say for sure she didn't do it."
Medical testimony at trial revealed that Ethan not only had new bleeding on the brain but also old bleeding.
The broader debate
The questions being raised in the Hershey and other shaken-baby cases are part of a debate about whether there has been a rush to judgment in some cases.
Deborah Tuerkheimer, a law professor at DePaul University College of Law in Chicago, has written an article, "The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts," to be published in the Washington University Law Review.
Tuerkheimer said in an interview that the telltale signs of shaken baby syndrome — retinal bleeding, swelling of the brain and bleeding in the protective layer of the brain — might not be due to the syndrome.
She noted that there has been a shift in the debate. "There may be other causes of the injuries," she said.
That's also the contention of the defense in another shaken-baby case in Ontario County on appeal.
In that case, Clifton Springs resident Dexter Mastowski was sentenced to 17 years in prison in 2003 after being convicted of causing severe brain injuries to his infant daughter.
Mastowski, 33, maintained at his trial that he did not shake or injure his daughter, who was 2½ months old. He believes her injuries instead were caused by multiple vaccinations she received shortly before she was taken to the hospital in October 2002, according to family members.
An appellate court in May denied his request to set aside his assault conviction. Mastowski, who claims that there is new evidence about shaken-baby diagnoses not considered at his trial, is now asking the state Court of Appeals to consider the case.
The American Academy of Pediatrics recently adopted a new policy position that refers to shaken baby syndrome as "abusive head trauma."
Dr. Robert Block, a professor of pediatrics at the University of Oklahoma's School of Community Medicine, was co-author of the new policy position that makes the injuries more understandable to the general public.
He is skeptical of the criticism raised about shaken baby syndrome and said, "We need to look at the science."
JGOODMAN@DemocratandChronicle.com
Includes reporting by staff writer Steve Orr.
Friday, July 31, 2009
Baby's death ruled accident, mother still in jail
http://www.venturacountystar.com/news/2009/jul/30/babys-death-ruled-accidental-but-mother-still-in/
Baby's death ruled accident, mother still in jail
By Raul Hernandez (Contact) Thursday, July 30, 2009
The infant died from blunt-force trauma, according to the Ventura County Medical Examiner.
“The manner of death was ruled as accidental,” Chief Deputy Medical Examiner James Baroni said Wednesday.
The mother, Cecilia Garcia Cortes, 23, of Oxnard, has been in jail with bail set at $500,000 since her arrest in April.
Cortes’ lawyer, Barbara Lewis, who works for the Public Defender’s Office, said the baby was accidentally dropped by Cortes’ boyfriend.
The child died April 30, according to police, and Cortes was accused of fatally shaking the girl. Lewis said the autopsy was performed May 1, but she didn’t get a copy of the results from the District Attorney’s Office until July 17. She said she was told prosecutors received the results a day earlier.
Lewis said prosecutor Thomas Dunlevy indicated the district attorney is going to seek a second opinion, even though the office has relied on the Ventura County Medical Examiner to do hundreds of autopsies.
“There is no reason to doubt his opinion here,” she said.
Lewis said she will try to meet with Dunlevy this week or next to discuss the case.
An early disposition conference on the case is scheduled for Wednesday, Lewis said.
Dunlevy declined to comment. He said his office will conduct further investigation and know in the next few weeks whether the charges against Cortes will be dismissed.
Baroni said the child died because she didn’t get enough oxygen to the brain after the blunt-force trauma. He said the autopsy required further tests and everything had to be thoroughly reviewed before the medical examiner could issue the findings.
Lewis said Cortes has always maintained that the death was an accident. “She knew the truth would come out,” Lewis said.
Oxnard police initially alleged the infant was crying continuously and Cortes became upset with her. Police said they believed Cortes violently shook the baby to get her to stop crying.
The alleged incident occurred April 27 in the 4800 block of Saviers Road in Oxnard, where Cortes lived after having recently moved from Fillmore, according to police.
The baby stopped breathing several hours later, police said. The child was taken to the hospital and died three days later, police said.
Baby's death ruled accident, mother still in jail
By Raul Hernandez (Contact) Thursday, July 30, 2009
The infant died from blunt-force trauma, according to the Ventura County Medical Examiner.
“The manner of death was ruled as accidental,” Chief Deputy Medical Examiner James Baroni said Wednesday.
The mother, Cecilia Garcia Cortes, 23, of Oxnard, has been in jail with bail set at $500,000 since her arrest in April.
Cortes’ lawyer, Barbara Lewis, who works for the Public Defender’s Office, said the baby was accidentally dropped by Cortes’ boyfriend.
The child died April 30, according to police, and Cortes was accused of fatally shaking the girl. Lewis said the autopsy was performed May 1, but she didn’t get a copy of the results from the District Attorney’s Office until July 17. She said she was told prosecutors received the results a day earlier.
Lewis said prosecutor Thomas Dunlevy indicated the district attorney is going to seek a second opinion, even though the office has relied on the Ventura County Medical Examiner to do hundreds of autopsies.
“There is no reason to doubt his opinion here,” she said.
Lewis said she will try to meet with Dunlevy this week or next to discuss the case.
An early disposition conference on the case is scheduled for Wednesday, Lewis said.
Dunlevy declined to comment. He said his office will conduct further investigation and know in the next few weeks whether the charges against Cortes will be dismissed.
Baroni said the child died because she didn’t get enough oxygen to the brain after the blunt-force trauma. He said the autopsy required further tests and everything had to be thoroughly reviewed before the medical examiner could issue the findings.
Lewis said Cortes has always maintained that the death was an accident. “She knew the truth would come out,” Lewis said.
Oxnard police initially alleged the infant was crying continuously and Cortes became upset with her. Police said they believed Cortes violently shook the baby to get her to stop crying.
The alleged incident occurred April 27 in the 4800 block of Saviers Road in Oxnard, where Cortes lived after having recently moved from Fillmore, according to police.
The baby stopped breathing several hours later, police said. The child was taken to the hospital and died three days later, police said.
Head Trauma outcomes of verifiable falls in newborn babies
Authors:
Caroline Ruddick, Martin Ward Platt, Camille Lazaro
Affiliations:
Ms Caroline Ruddick, Midwifery Manager, Directorate of Women’s ServicesDr Martin Ward Platt, Consultant Paediatrician, Directorate of Women’s ServicesDr Camille Lazaro, Consultant Paediatrician, Department of Child Health
Corresponding author:
Dr Martin Ward PlattWard 35Royal Victoria Infirmary,Newcastle upon Tyne NE1 4LPTele: 0191 282 5197Fax: 0191 282 5038E mail: m.p.ward-platt@ncl.ac.ukJuly 7, 2009 as 10.1136/adc.2008.143131
Head trauma outcomes of verifiable falls in newborn babies
Abstract
Eleven newborn babies of normal weights sustained falls onto a hard surface in hospital. The one baby who fell from over a metre sustained clinical and radiological trauma and encephalopathy, with a skull fracture and cerebral contusion. No other baby demonstrated neurological signs despite the presence of parietal skull fractures in four of six who were X-rayed; only two babies had scalp swelling. The findings suggest that parietal fractures can result from very low level falls and scalp swelling is a poor marker for underlying fracture.
Introduction
The conditions under which very young infants can sustain skull fractures can be contentious, but are clearly important in determining whether an injury might be consistent with the history given.Studies of linear skull fractures and external evidence of skull injury have mostly focused on falls of 3 feet or more1 2, so there is little information on the outcomes of lower level falls. In the context of the accident and emergency department, the prevarication and false histories that are part of thepresentation of child abuse create difficulties for clinicians and researchers alike.
Therefore, we believed it would be useful to present our experience of injuries sustained from falls in newborn babies in the postnatal ward where the fall occurred under verifiable conditions, or was witnessed by someone other than the mother; there was information about the physical environment; immediate medical assessment was available; and many of the falls were from heights as low as 0.5m.
Method
We used our adverse event register, cross checked with the codings for all trauma in newborn babies from the Hospital Episode Statistics, to identify cases where babies fell accidentally to the floor in our maternity unit for the five years January 1999 to December 2003. The records for each child were examined; details of the height to impact, nature of the surface struck, clinical symptoms and the results of any imaging were identified for each child.
Results
The details of the babies are given in the table. 11 babies were identified, seven girls and four boys,all born at term. Birth weights ranged from 2.1 kg to 3.8 kg. Of the 11, seven were totally breast fed, three artificially fed and one mixed fed. Seven of the falls occurred at night, between the hours of 8 p.m. and 8 a.m. Four babies dropped to the floor when their mothers fell asleep following breast feeding.
The estimated distance to impact in most babies was one metre or less. One baby fell about 1.2m. The surface impacted upon in all falls consisted of vinyl tiles laid upon concrete with an intervening solid screed.No clinical findings were identified in eight of the eleven babies. Of the three with clinical findings,one had a bruise over the temporal area, one had a swelling over the parietal area and one had signs of traumatic encephalopathy.
All imaging was at the discretion of the attending physicians. Six of the eleven babies had skull Xrays, one had a CT scan (but no skull X-ray), and two an ultrasound scan. Of the six with X-rays, five had no scalp swelling, but three of these five had a solitary linear parietal skull fracture. Three of the eleven babies had localised scalp swelling, of which two were imaged and each of these had asingle linear parietal fracture. The baby who fell 1.2m had a fronto-parietal contusion beneath the fracture, and had a transiently decreased level of consciousness consistent with a mild traumatic encephalopathy; this baby was born by normal vaginal delivery.
Discussion
Our observations demonstrate that low height falls of under a metre can cause a linear skull fracture, and such skull fractures are not necessarily accompanied by a boggy swelling in the overlying scalp. However not all babies were radiographed so we cannot make any estimate of the rate of fracture among babies who fall.All the fractures, including that caused by the highest fall, were linear and confined to the parietes. Even the baby falling further, and sustaining brain contusion, had a linear fracture, not a more complex one. Although this finding supports the contention that complex, stellate or occipital fractures do not arise from simple domestic falls3 we cannot rule out the possibility that otherkinds of fracture could result from falls such as we have seen.In spite of the fact that hospital floors are particularly hard and unyielding, we found that symptoms suggestive of underlying brain injury (decreased consciousness, feeding problems, irritability,seizures or apnoea) were not found in 10 of 11 babies, even when fractures were found to have occurred. Existing biomechanical evidence suggests that that there is little difference in the effects of falls onto a hard floor or a carpeted domestic floor 4.
We conclude that even very low level falls may produce linear skull fractures, but that such fractures may occur without the scalp swelling traditionally considered suggestive of a fracture.
References
1. Greenes, D. S., Schutzman, S A. Infants with isolated skull fracture: what are their clinicalcharacteristics, and do they require hospitalization? Annals of Emergency Medicine. 1997;30:253-9.
2. Johnson, K., Fischer, T., Chapman, S., Wilson, B. Accidental head injuries in children under 5years of age. Clinical Radiology 2005;60:464-8.
3. Hobbs, C.J. Skull Fracture and the diagnosis of abuse. Archives of Disease in Childhood1984;59:246-52.
4. Coats, B., Margulies, S. S. Potential for head injuries in infants from low-height falls. Journalof Neurosurgery: Pediatrics 2008;2:321-30.
Caroline Ruddick, Martin Ward Platt, Camille Lazaro
Affiliations:
Ms Caroline Ruddick, Midwifery Manager, Directorate of Women’s ServicesDr Martin Ward Platt, Consultant Paediatrician, Directorate of Women’s ServicesDr Camille Lazaro, Consultant Paediatrician, Department of Child Health
Corresponding author:
Dr Martin Ward PlattWard 35Royal Victoria Infirmary,Newcastle upon Tyne NE1 4LPTele: 0191 282 5197Fax: 0191 282 5038E mail: m.p.ward-platt@ncl.ac.ukJuly 7, 2009 as 10.1136/adc.2008.143131
Head trauma outcomes of verifiable falls in newborn babies
Abstract
Eleven newborn babies of normal weights sustained falls onto a hard surface in hospital. The one baby who fell from over a metre sustained clinical and radiological trauma and encephalopathy, with a skull fracture and cerebral contusion. No other baby demonstrated neurological signs despite the presence of parietal skull fractures in four of six who were X-rayed; only two babies had scalp swelling. The findings suggest that parietal fractures can result from very low level falls and scalp swelling is a poor marker for underlying fracture.
Introduction
The conditions under which very young infants can sustain skull fractures can be contentious, but are clearly important in determining whether an injury might be consistent with the history given.Studies of linear skull fractures and external evidence of skull injury have mostly focused on falls of 3 feet or more1 2, so there is little information on the outcomes of lower level falls. In the context of the accident and emergency department, the prevarication and false histories that are part of thepresentation of child abuse create difficulties for clinicians and researchers alike.
Therefore, we believed it would be useful to present our experience of injuries sustained from falls in newborn babies in the postnatal ward where the fall occurred under verifiable conditions, or was witnessed by someone other than the mother; there was information about the physical environment; immediate medical assessment was available; and many of the falls were from heights as low as 0.5m.
Method
We used our adverse event register, cross checked with the codings for all trauma in newborn babies from the Hospital Episode Statistics, to identify cases where babies fell accidentally to the floor in our maternity unit for the five years January 1999 to December 2003. The records for each child were examined; details of the height to impact, nature of the surface struck, clinical symptoms and the results of any imaging were identified for each child.
Results
The details of the babies are given in the table. 11 babies were identified, seven girls and four boys,all born at term. Birth weights ranged from 2.1 kg to 3.8 kg. Of the 11, seven were totally breast fed, three artificially fed and one mixed fed. Seven of the falls occurred at night, between the hours of 8 p.m. and 8 a.m. Four babies dropped to the floor when their mothers fell asleep following breast feeding.
The estimated distance to impact in most babies was one metre or less. One baby fell about 1.2m. The surface impacted upon in all falls consisted of vinyl tiles laid upon concrete with an intervening solid screed.No clinical findings were identified in eight of the eleven babies. Of the three with clinical findings,one had a bruise over the temporal area, one had a swelling over the parietal area and one had signs of traumatic encephalopathy.
All imaging was at the discretion of the attending physicians. Six of the eleven babies had skull Xrays, one had a CT scan (but no skull X-ray), and two an ultrasound scan. Of the six with X-rays, five had no scalp swelling, but three of these five had a solitary linear parietal skull fracture. Three of the eleven babies had localised scalp swelling, of which two were imaged and each of these had asingle linear parietal fracture. The baby who fell 1.2m had a fronto-parietal contusion beneath the fracture, and had a transiently decreased level of consciousness consistent with a mild traumatic encephalopathy; this baby was born by normal vaginal delivery.
Discussion
Our observations demonstrate that low height falls of under a metre can cause a linear skull fracture, and such skull fractures are not necessarily accompanied by a boggy swelling in the overlying scalp. However not all babies were radiographed so we cannot make any estimate of the rate of fracture among babies who fall.All the fractures, including that caused by the highest fall, were linear and confined to the parietes. Even the baby falling further, and sustaining brain contusion, had a linear fracture, not a more complex one. Although this finding supports the contention that complex, stellate or occipital fractures do not arise from simple domestic falls3 we cannot rule out the possibility that otherkinds of fracture could result from falls such as we have seen.In spite of the fact that hospital floors are particularly hard and unyielding, we found that symptoms suggestive of underlying brain injury (decreased consciousness, feeding problems, irritability,seizures or apnoea) were not found in 10 of 11 babies, even when fractures were found to have occurred. Existing biomechanical evidence suggests that that there is little difference in the effects of falls onto a hard floor or a carpeted domestic floor 4.
We conclude that even very low level falls may produce linear skull fractures, but that such fractures may occur without the scalp swelling traditionally considered suggestive of a fracture.
References
1. Greenes, D. S., Schutzman, S A. Infants with isolated skull fracture: what are their clinicalcharacteristics, and do they require hospitalization? Annals of Emergency Medicine. 1997;30:253-9.
2. Johnson, K., Fischer, T., Chapman, S., Wilson, B. Accidental head injuries in children under 5years of age. Clinical Radiology 2005;60:464-8.
3. Hobbs, C.J. Skull Fracture and the diagnosis of abuse. Archives of Disease in Childhood1984;59:246-52.
4. Coats, B., Margulies, S. S. Potential for head injuries in infants from low-height falls. Journalof Neurosurgery: Pediatrics 2008;2:321-30.
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