Appellate Court’s Exclusion of Shaken Baby Opinion an Error: Mississippi

Diagnoses of Shaken Baby Syndrome (SBS) have been found “insufficient” and unreliable in a growing body of scientific research, leaving courts in a not uncommon conundrum where once accepted science gradually becomes debunked. In this Mississippi case, a trial court allowed the expert's SBS diagnostic opinion, the appellate court excluded it in a split decision and then the State Supreme court reversed the appellate court in yet another split decision. Such is the state of forensic science.

In Joshua Eric Hawk Clark a/k/a Joshua Clark v. State of Mississippi, 2017-CT-00411-SCT (Miss Feb. 4, 2021), Clark was convicted of second-degree murder in the death of his four-month-old daughter, Kyllie Clark, based almost solely on the opinion of Dr. Karen Lakin, the State's Child Abuse Pediatrics expert witness.

Clark had been caring for Kyllie, her twin brother, her two year old sister and his five-year old step-daughter while his wife, Bethany ran on errands with two teenage friends. Two and a half hours after they left, Clark heard Kyllie make a gasping sound. Some minutes later, Bethany and the teenagers returned. One of the teenagers, alarmed at Kyllie's condition, called 911. The teenagers testified that Clark, at least initially, did not want to take Kyllie to the hospital. Clark testified that he did.

Clark and his wife decided to take Kyllie to the hospital when she went limp, with Bethany attempting CPR. Running into the hospital, Bethany “popped” Kyllie against a door. The local hospital sent Kyllie to Le Bonheur Children's Hospital — with Kyllie was receiving “vigorous CPR” all the while.

Dr. Lakin consulted on Kyllie's case after the hospital staff diagnosed Kyllie with rib fractures, retinal and subdural hemorrhages, and brain swelling. Kyllie was soon declared brain dead and taken off life support.

Based primarily on information from Le Bonheur and Dr. Lakin, police investigated Kyllie's death. One of the teenagers said that Clark's two year old had fallen on Kyllie before. A babysitter testified that she once found Kyllie on the floor and that Clark's two year old daughter told her that Clark's wife had dropped her.

One of the investigating officers testified that the hospital medical records referred to Kyllie's injuries as consistent with SBS or “an adult … [grabbing] the torso of the child and [shaking] the child.” The officer interpreted that to mean either Clark or his wife had injured Kyllie.

While the police could not pinpoint the time of Kyllie's injuries, the wife was ruled out as Kyllie's breathing problems started before she returned. Clark was charged with felonious child abuse and capital murder, and with Dr. Lakin's SBS testimony, convicted and sentenced to life imprisonment.

Clark moved for post-conviction relief as his trial counsel had failed to introduce an expert to rebut Dr. Lakin's testimony, which was granted. His new counsel moved to excluded Lakin's testimony as SBS was “no longer a generally accepted diagnosis in the absence of evidence of external injuries and that SBS could not be used to accurately determine the time of Kyllie's injuries”, introducing “numerous articles, studies, and criticisms of SBS.”  The trial court rejected that motion.

At the new trial, the State relied primarily on Dr. Lakin's testimony that “someone killed Kyllie by shaking her” and that her injuries “could only have occurred during the three-hour window” Kyllie was in Clark's care. In support of her opinions, Dr. Lakin cited only the American Academy of Pediatrics (AAP) recognition of SBS, now referred to as Abusive Head Trauma (AHT), although she did claim other institutions recognized the diagnosis.

On cross-examination, Dr. Lakin agreed that, according to the AAP, “there is no single or simple test to determine the accuracy of the [SBS] diagnosis,” an updated statement by the AAP which she was unaware of. She also admitted that she was unaware that in 2009 the AAP removed language that presumed child abuse when subdural hematoma, retinal hemorrhages, and brain swelling exist. As well, Dr. Lakin admitted that the evaluation of Kyllie's rib fractures appearing to be healing rather than recently sustained made it impossible to attribute them to Clark at the time, that no differential-diagnosis was done to eliminate other causes and that no test was done to look for neck injuries. That Clark worked out-of-state during the week had no impact on Dr. Lakins opinion that he must be guilty.

Dr. Mark LeVaughn, a forensic pathologist and the chief medical examiner for the State of Mississippi, testified as the State's expert witness that the time Kyllie's subdural hemorrhage occurred could not be determined.

Another forensic pathologist expert witness, Dr. Mark Shuman, testifying for Clark, “discussed the evolution of SBS and AHT as medical theories” and testified that the force of dropping a baby a few feet or stepping on an infant could cause the injuries seen in Kyllie and that the symptoms and severe consequences of head injury can be delayed.

Both Dr. Shuman and Dr. LeVaughn testified that, due to the poorly prepared slides under a State-contracted doctor, they could not given an opinion as to the approximate date and time of Kyllie's brain injury.

The State Court of Appeals' majority decision reversed Clark‘s conviction, finding that “Dr. Lakin's expert-opinion testimony failed to meet the Daubert standard and was so unreliable as to render portions of her testimony inadmissible under the rules of evidence.”

The State Supreme Court reversed, noting that the real problem in the case was not so much the testimony of Dr. Lakin as “it is the fact that the SBS/AHT diagnosis has been increasingly questioned in recent years,” noting the difficulty in the decision of the Court of Appeals as well as the trial judge. The Court continued to explain its view that:

“If we wish to take it upon ourselves to determine that some theory has been debunked, that is certainly within our power if appropriately supported by the science. But we must continue to remember that we are jurists, not scientists. Judges are increasingly asked to make scientific determinations based on contradictory science despite not being qualified to do so. Science by nature is seldom certain, and thus the validation of a proposed submission need not be universally accepted.”

The State Supreme Court minority opinion found otherwise, finding that the “the methodology behind [Dr. Lakin's] opinion failed to meet the reliability prong.” Dr. Lakin admitted that there was disagreement in the scientific community over SBS methodology, acknowledging that many disciplines discount SBS as a reliable diagnosis.

At trial, no one testified to seeing Clark harm any of their four children, and his wife considered him to be a good father. He was convicted almost solely on Dr Lakin's testimony under the theory of SBS.

The history of forensic science is rife with highly regarded methodologies being later debunked. In this case, a man has been sentenced to life imprisonment based almost solely on a methodology with strong disagreements in the scientific community.

Forensic science should be better.