Read Part One here.
There is a growing awareness among medical practitioners of “mimics”: ailments that can cause the kind of bruising and bleeding once assumed to be telltale indicators of child abuse. A 2006 textbook on head injuries in children listed literally dozens of afflictions — including some fairly common illnesses — that can produce hemorrhaging in the brain.
This is just one way that the science of how children die has evolved in recent years. The most notable — and controversial — example of this is the intense debate over “shaken baby syndrome,” which has played out in scientific journals and mainstream outlets such as the New York Times Magazine.
Based on studies dating back to the 1960s, many forensic pathologists — as well as other physicians — came to believe that a signature trio of symptoms provided definitive proof that someone had violently shaken a child. Under the theory, certain patterns of bleeding and swelling of the brain, and hemorrhages of the retinas came to be seen as conclusive evidence that a child had been assaulted with terrible force, even if there were no other signs of trauma.
But many experts now view the diagnosis with increasing skepticism. In Canada andBritain, large-scale official reviews have uncovered at least nine cases in which people may have been wrongly convicted based on the shaken-baby theory.
Dr. Case, the Missouri medical examiner, said the controversy is a “sideshow”: Typically, children who’ve been shaken have also suffered other serious injuries from being battered. “Yes, there is a scientific debate,” she said. “I personally believe that you can shake a child and kill it.”
The thinking of other doctors has undergone a radical change. Dr. Patrick Barnes, a pediatric radiologist at Stanford University, was a key prosecution witness in what is arguably the most famous shaken-baby case of all, the trial of Louise Woodward. Woodward was a 19-year-old nanny charged in 1997 with shaking an 8-month-old baby to death, hitting his head and causing fatal bleeding. With Barnes’ help, the jury found Woodward guilty of second-degree murder. (She was ultimately released after serving less than a year in prison, when a judge reduced her charge to manslaughter.)
Barnes said he wouldn’t give the same testimony today. There’s been a “revolution” in the understanding of head injuries in the past decade, in part due to advances in MRI brain scanning technology, he said. “We started realizing there were a number of medical conditions that can affect a baby’s brain and look like the findings that we used to attribute to shaken baby syndrome or child abuse,” Barnes said.
The case of Melonie Ware shows how profoundly a closer reading of medical evidence can affect the outcome of a child death investigation.
Ware was convicted in 2004 of murdering a 9-month-old boy she was babysitting, based in large part on the testimony of a local forensic pathologist, Dr. Gerald Gowitt. Gowitt said someone shook the child violently, damaging his brain, and slammed his head, causing three near-identical bruises beneath the scalp.
Ware was sentenced to a life term in a Georgia prison.
After an extensive legal battle, a judge granted Ware a new trial in 2009. This time, her attorneys produced evidence from the baby’s medical records overlooked in her first trial: Hospital staffers had tried multiple times to insert a probe into the child’s skull, as part of their attempt to save his life. The bruises under the baby’s scalp, experts for Ware testified, were likely caused by those failed attempts.
Two prominent physicians testified that shaking had nothing to do with the boy’s demise. The child had died from sickle cell anemia, said the doctors, both specialists in the disease, which is known to cause cerebral bleeding.
Gowitt declined repeated requests for comment on the case.
The jury acquitted Ware, but her life is not the same. Her husband spent more than $700,000 on her defense, selling off and mortgaging real estate acquired over decades.
“We had to move in with my parents,” said Ware, 38. “It’s just messed us up totally.”
After she was freed from prison, Ware, who had worked as a day-care provider, was rejected for job after job. “I even tried McDonald’s,” she recalled. She thinks potential employers were frightened off by her time in jail.
The stain of the case lingers. To this day, Ware’s mug shot appears on the Georgia Department of Corrections’ website, which lists her as still incarcerated.
* * *
In prosecuting Ernie Lopez, law enforcement officials focused almost exclusively on Isis Vas’ final hours.
Lopez’s legal team looked back further, however, marshaling evidence suggesting that the baby’s deteriorating condition might have been overlooked by her mother.
Veronica Vas had moved to Amarillo in 1995 to do her residency at a branch of Texas Tech University. She began dating a doctor, with whom she had two children. Then, in a subsequent relationship, Vas, 32, became pregnant with Isis. By all accounts, Isis’ father wasn’t involved in her life.
Court records from a custody dispute between Vas and the father of her older children, as well as statements submitted as part of the Lopez case, depict the Vas household as chaotic in the period surrounding Isis’ birth.
Dena Ammons, a nurse who worked closely with Vas during her residency, said Vas changed during her pregnancy with Isis. She began showing up late for work, her hair matted and uncombed. In a sworn statement, Ammons said that Vas drank and smoked throughout the pregnancy.
Lorrie Word worked for Vas as a live-in nanny from August 1999 until the summer of 2000, caring for Isis from the time she was born. Word said in an affidavit that, on one occasion, she returned from her night off to find Isis alone in a darkened house, crying and soaked with urine. Vas would later say she only left the child for 10 minutes. Soon after the incident, Word quit her job.
A family therapist who visited the Vas home in 2000 as part of the custody dispute described it as “extremely cluttered.” “It was difficult to walk across the floor because of blankets, clothes, and toys,” she wrote in a report submitted to a family court. “The home appeared extraordinarily disorganized.”
Vas declined repeated requests for comment for this story. She has moved to Michigan, where the state medical board recently suspended her medical license due to alcohol abuse.
During Lopez’s trial, Vas testified that in the months after Word quit she came to depend on the Lopez family to help care for her children.
According to Ernie Lopez, the day before Isis went into cardiac arrest he became so worried about the baby’s health that he asked Vas for a note authorizing him or his wife to take the child to the doctor.
Vas didn’t give him the note before leaving town for the weekend, he recalled in an interview. “Isis will be fine,” Lopez said Vas told him.
* * *
By 2009, the new medical evidence gathered by Heather Kirkwood had captured the attention of the courts. After she filed an appeal, a habeas corpus petition, a judge granted Lopez a new evidentiary hearing. It represented a step toward possibly overturning his conviction.
The hearing lasted nearly twice as long as the original trial. This time, seven doctors testified — for free — on Lopez’s behalf.
Kirkwood also had the chance to question Joni McClain, the forensic pathologist who ruled Isis Vas’ death a homicide. McClain stood by her conclusion that Isis was killed by violence, not disease.
But she acknowledged that she’d paid little attention to Isis’ blood-clotting tests and had only a vague understanding of their possible significance. “Did you look at these lab tests before reaching your conclusions?” Kirkwood asked. “I don’t think I did beforehand because it was such a clear case of blunt force injury,” McClain replied.
Kirkwood read through the results of five tests, starting with the PT and PTT, which measure blood coagulation in seconds.
McClain admitted the tests went beyond her expertise as they can only be run on the living. “I don’t get into a PT, PTT. It’s a useless test after someone’s dead,” the doctor said.
Four other doctors testified for the state, saying Isis had died from blunt-force injuries, not a bleeding disorder. “This is a pattern of injury that we see with trauma,” said Randell Alexander, a pediatrician who heads the child abuse division at the University of Florida’s College of Medicine, in Jacksonville. “This is not a bleeding death.”
McClain also argued that it was possible for head injuries to cause the type of clotting problems Isis had suffered.
In an interview, Laposata agreed head trauma can have that effect but said Isis’ lab results were too abnormal to have resulted from an attack that allegedly occurred about an hour before her hospitalization.
It would be nearly a year before Potter County Judge Dick Alcala issued his opinion on the case. In August 2010, Alcala made a recommendation to the state’s highest criminal court that Lopez’s conviction should be overturned. He found that Lopez’s original attorneys had failed to “fully investigate the medical issues of whether a sexual assault had occurred” and “the cause of death of the child.” If they had investigated properly, Alcala wrote, the jury might not have convicted Lopez.
The judge rejected Lopez’s claim of innocence, which would have required a conclusion that “no reasonable juror would have convicted him” — a high legal standard.
The case is now in the hands of the Texas Court of Criminal Appeals. It has the power to throw out Lopez’s conviction and free him.
Potter County District Attorney Randall Sims continues to fight Lopez’s appeal. In an interview, Sims said he could not discuss the case in detail because it is still ongoing. (He also said he had discouraged state witnesses, including the medical examiner, from speaking with us.) Sims said he thought Lopez had received a fair trial.
“The jury found him guilty,” he said. “And we’re defending that conviction.”
There is no timetable for the appeals court’s decision. Even if it overturns Lopez’s conviction, he could remain tangled up in the criminal justice system for years. Sims could refile charges and try him a second time.
The United States is not the only country in which forensic pathologists have had difficulty investigating child deaths. Canada was rocked by a scandal that affected at least 20 criminal cases, sending officials there on a search for systemic solutions to prevent future miscarriages of justice.
The controversy centered on the work of Dr. Charles Smith, once one of Canada’s leading forensic pathologists. Based at a children’s hospital in Toronto, Smith specialized in performing autopsies in grisly child deaths and, over a span of 24 years, he testified regularly for prosecutors.
But by 2005, the province’s chief coroner had become openly skeptical of Smith’s findings and assigned five other forensic pathologists to conduct a top-to-bottom review of his work in 45 child death cases.
The results of the study were devastating: In 20 of the cases, the reviewers disagreed with Smith’s autopsy reports or court testimony. Over and over, Smith cited evidence of murder where there was none, they found. (Smith would not respond to our questions.)
In a dozen cases, people were wrongly accused of killing children in Ontario based on Smith’s work or testimony. Tammy Marquardt, who was sentenced to life in prison for murdering her son, spent 14 years behind bars before being exonerated.
In prison, she said, the other inmates despised her. “A baby killer would basically get the living daylights beaten out of them,” she said. “A baby killer is classified as one of the lowest on the totem pole.” The courts reversed her conviction earlier this year.
The Ontario chief coroner’s internal review led to an official inquiry by Justice Goudge, who set out nearly 170 recommendations for remaking the province’s broken death-investigation system.
Forensic pathologists who conducted child autopsies should be formally trained and board-certified, Goudge said. They should read all relevant medical records. While forensic pathologists often toil in a certain amount of isolation, Goudge recommended a more collaborative approach, saying they should consult with specialists in other medical disciplines and have other doctors review their autopsy findings.
Bias was a major concern for Goudge. In Ontario there was a mantra among forensic pathologists, he said in an interview: “Think Dirty.” When doctors dealt with cases involving children who had died unexpectedly, they assumed parents or caregivers had murdered them. That outlook, the justice said, skewed the conclusions they reached in the autopsy suite. “The scientist’s objective is to ‘think truth’ not ‘think dirty,’” he said.
Many of Goudge’s suggestions are being implemented in Ontario. But policy-makers in the United States have largely ignored them. There are no national standards or regulations regarding forensic pathology and practices vary widely from place to place.
Barnes, the Stanford pediatric radiologist, said it was imperative for the U.S. system to absorb the lessons from Ontario. “We need to establish the new standards at all levels, just like what is happening in Canada,” he said.
* * *
After Lopez was bused off to prison, his mother would look out her kitchen window and stare across the street at his former home, her mind turning back to the day everything changed. “It was too much to bear,” Rosa remembered. So she and Ernest Sr. sold their house and moved to a place on the outskirts of Amarillo. Eddie and his wife did the same.
Lopez now lives in a cell in the Connally Unit, a maximum-security lock-up about 600 miles away in the scrubby countryside south of San Antonio. Every three or four months his parents make the 10-hour drive to the facility, a journey that costs about $1,000 between gas and hotels. “When we go, we have an enthusiasm, ‘We’re going to go see him,’ you know, ‘We’re going to touch him and hold him,’” Rosa said. “And then on our way back it’s really emotionally hard because we have to leave him there.”
Lopez’s imprisonment gnaws at Eddie, who weeps repeatedly when talking about his brother, tears streaking across his broad face. “Him being away this whole time, it’s like a part of me is dead, because we were that close,” Eddie said.
The two men are separated in age by 11 months, but these days Ernie looks years older. His close-cropped hair, once brown, has turned the color of iron.
Behind the prison’s thick cinderblock walls, Lopez struggles to hold onto what’s left of his old life. Every Tuesday evening he calls his children collect, offering fatherly guidance despite the circumstances. He communicates less frequently with DeAnn, who divorced him and remarried after he was sent away. (DeAnn has participated in his appeal, giving a sworn statement that corroborated his account of the day Isis died. She declined to be interviewed for this story.)
Because of the seriousness of his offense, Lopez is barred from working a prison job. He fills his mental space with the written word, reading more than 50 books last year alone. He’s a big fan of the Western pulp novelist Louis L’Amour and an avid student of the Bible, which he’s been through eight times.
Many men discover religion while incarcerated, but Lopez was devout long before he found himself in handcuffs. The night before he allegedly attacked Isis, he was at his church, acting in a play about good and evil.
Today, nearly 11 years after Isis died, Lopez continues to maintain — emphatically — that he never harmed her.
“Why should they believe that I’m innocent?” he asked during a two-hour interview. “Well, because that’s not my character. That’s not who I am.”
Thinking back to that Saturday, Lopez paused and went silent, anguish filling his face. He exhaled heavily. “Her heart was beating a hundred miles an hour and she wasn’t breathing. I put my ear to her chest, and I heard her heart just beating, just racing and …” His head tilted downward and he stared at the floor. “She was there and then she wasn’t there.”
Lopez’s voice grew quiet as the words trickled out slowly. “So many times,” he said, “I think about what I could have done different to help her more.”