Fingerprint evidence not infallible

Fingerprints have been police tools for a long time, more than a century. They were considered infallible for much of that history, according to Science News.

Limitations to fingerprint analysis came to light in spectacular fashion in 2004, with the bombing of four commuter trains in Madrid. Spanish police found a blue plastic bag full of detonators and traces of explosives. Forensic experts used a standard technique to raise prints off the bag: fumigating it with vaporized superglue, which stuck to the finger marks, and staining the bag with fluorescent dye to reveal a blurry fingerprint.

Running that print against the FBI’s fingerprint database highlighted a possible match to Brandon Mayfield, an Oregon lawyer. One FBI expert, then another, then another confirmed Mayfield’s print matched the one from the bag.

Mayfield was arrested. But he hadn’t been anywhere near Madrid during the bombing. He didn’t even possess a current passport. Spanish authorities later arrested someone else, and the FBI apologized to Mayfield and let him go.

The case highlights an unfortunate “paradox” resulting from fingerprint databases, in that “the larger the databases get … the larger the probability that you find a spurious match,” says Alicia Carriquiry. She directs the Center for Statistics and Applications in Forensic Evidence, or CSAFE, at Iowa State University.

In fingerprint analyses, the question at hand is whether two prints, one from a crime scene and one from a suspect or a fingerprint database, came from the same digit (SN: 8/26/15). The problem is that prints lifted from a crime scene are often partial, distorted, overlapping or otherwise hard to make out. The expert’s challenge is to identify features called minutiae, such as the place a ridge ends or splits in two, and then decide if they correspond between two prints.

Studies since the Madrid bombing illustrate the potential for mistakes. In a 2011 report, FBI researchers tested 169 experienced print examiners on 744 fingerprint pairs, of which 520 pairs contained true matches. Eighty-five percent of the examiners missed at least one of the true matches in a subset of 100 or so pairs each examined. Examiners can also be inconsistent: In a subsequent study, the researchers brought back 72 of those examiners seven months later and gave them 25 of the same fingerprint pairs they saw before. The examiners changed their conclusions on about 10 percent of the pairings.

Forensic examiners can also be biased when they think they see a very rare feature in a fingerprint and mentally assign that feature a higher significance than others, Quigley-McBride says. No one has checked exactly how rare individual features are, but she is part of a CSAFE team quantifying these features in a database of more than 2,000 fingerprints.

Computer software can assist fingerprint experts with a “sanity check,” says forensic scientist Glenn Langenburg, owner of the consulting firm Elite Forensic Services in St. Paul, Minn. One option is a program known rather informally as Xena (yes, for the television warrior princess) developed by Langenburg’s former colleagues at the University of Lausanne in Switzerland.

Xena’s goal is to calculate a likelihood ratio, a number that compares the probability of a fingerprint looking like it does if it came from the suspect (the numerator) versus the probability of the fingerprint looking as it does if it’s from some random, unidentified individual (the denominator). The same type of statistic is used to support DNA evidence.

To compute the numerator probability, the program starts with the suspect’s pristine print and simulates various ways it might be distorted, creating 700 possible “pseudomarks.” Then Xena asks, if the suspect is the person behind the print from the crime scene, what’s the probability any of those 700 could be a good match?

To calculate the denominator probability, the program compares the crime scene print to 1 million fingerprints from random people and asks, what are the chances that this crime scene print would be a good match for any of these?

If the likelihood ratio is high, that suggests the similarities between the two prints are more likely if the suspect is indeed the source of the crime scene print than if not. If it’s low, then the statistics suggest it’s quite possible the print didn’t come from the suspect. Xena wasn’t available at the time of the Mayfield case, but when researchers ran those prints later, it returned a very low score for Mayfield, Langenburg says.

Another option, called FRStat, was developed by the U.S. Army Criminal Investigation Laboratory. It crunches the numbers a bit differently to calculate the degree of similarity between fingerprints after an expert has marked five to 15 minutiae.

While U.S. Army courts have admitted FRStat numbers, and some Swiss agencies have adopted Xena, few fingerprint examiners in the United States have taken up either. But Carriquiry thinks U.S. civilian courts will begin to use FRStat soon.

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CREATORS: DNA Reveals Flaws in Criminal Justice System

Matthew T. Mangino
CREATORS
February 11, 2025

The Innocence Project used to track all DNA exonerations throughout the country. An exoneration clears a convicted person of blameworthiness. Now they track all "Innocence Project successes," which includes all exonerations generated through DNA or other evidence.

There were 375 DNA exonerations between 1989 and 2020. For those 375 men and women and their families, DNA saved them from the anguish and pain of being locked up for a crime they did not commit. For the rest of us, DNA revealed the many flaws in the criminal justice system.

The "other successes" are even more impressive than the DNA exonerations. In "Bringing Ben Home: A Murder, a Conviction, and the Fight to Redeem American Justice," Barbara Bradley Hagerty declared, "The double helix has sparked a revolution." DNA has exposed the errors of our way.

The Innocence Project is right to celebrate those non-DNA exonerations. "[O]verturning a wrongful conviction, even with DNA evidence, is extremely difficult. ... [Without it] it's so much harder," Rebecca Brown of the Innocence Project told Bradley. She goes on to say, "It comes down to, really, serendipity. ... We should not be having to depend on luck."

DNA is not present in every case. However, there are still mistaken identifications, police misconduct and bad forensics throughout the system. The Innocence Project lists six "contributing causes" for wrongful convictions: eyewitness misidentification; false confessions or admissions; government misconduct; inadequate defense; informants; and unvalidated or improper forensic science.

More specifically, in 63% of wrongful convictions there was eyewitness identification; 52% had inaccurate or unscientific forensic analysis; 19% had untrustworthy informants: and 28% had confessions.

Imagine that nearly 3 in 10 people exonerated pleaded guilty to a crime they did not commit. How does that happen?

In 2010, 17-year-old India Spellman was arrested by Philadelphia police for the robbery of a woman with a gun and as the shooter in the robbery and murder of a second person. India and her co-defendant were taken to the police department for interrogation. Although she was a juvenile, her parents were kept from the interrogation room.

As the 17-year-old was alone with the police, a detective hit her in the face and screamed at her. He left the interrogation room and returned with a statement that Spellman signed after detectives refused to read her the content of the statement. The statement was a confession to being involved in both robberies.

Thirteen years later, a judge vacated Spellman's conviction. The trial — which featured a misidentification, a coerced confession and prosecutors withholding exculpatory evidence — had been unconstitutional.

As science evolves, so does the reliability of forensic evidence. The gold standard pre-DNA was the human fingerprint. You may be surprised to learn that the uniqueness of a fingerprint is an assumption, not a well-studied idea.

According to Discover magazine, the "lack of a fundamental scientific basis for the supposed uniqueness of fingerprints — and the inability for apparent experts to reliably match them or even agree on what's required for a match — has seen some federal courts reject fingerprints entirely as evidence."

Even DNA has come under scrutiny. As collection of DNA at crime scenes has become more sophisticated, gathering minute biological samples has emerged as potential for folly. Finding someone's DNA at a crime scene doesn't necessarily mean they were ever at that location. Transfer DNA can spread to objects and places by way of other human carriers.

In one case, according to Discover magazine, a man's DNA was found on a murder victim who was killed in their home. The man whose DNA was found at the crime scene was in the hospital during the murder. The DNA had been transferred by a paramedic who brought the man to the hospital and who later responded to the 911 call made regarding the homicide.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book "The Executioner's Toll, 2010" was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Bluesky @matthewmangino.bsky.social.

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Reducing the use of junk science in criminal trials

 M. Chris Fabricant writes in his book Junk Science in the American Criminal Justice System:

One of the primary hurdles to reducing the use of the junk science in criminal investigations and trials lies in the standards used to determine the admissibility of forensic evidence in court.

Traditionally, U.S. courts have relied on doctrines such as the Frye Standard and the Daubert Standard to assess whether scientific evidence should be presented to juries. The Frye Standard, originating from a 1923 case, allows evidence if it has gained "general acceptance" within the relevant scientific community. However, this standard has often been too lenient, allowing pseudo-scientific practices to enter the courtroom simply because they were widely used, despite lacking rigorous scientific validation.

In response to the shortcomings of the Frye Standard, the Supreme Court established the Daubert Standard in 1993, which requires a more stringent scientific evaluation of the evidence. The Daubert ruling instructs judges to act as gatekeepers, ensuring that an expert's testimony is based on valid scientific principles, has been peer-reviewed, and has known error rates.

Despite this seemingly robust criterion, practical application varies dramatically across jurisdictions. Many judges, lacking scientific expertise, continue to struggle with distinguishing credible science from junk science. Consequently, unreliable forensic evidence continues to find its way into trials, perpetuating wrongful convictions. Beyond legal standards, institutional resistance

Beyond legal standards, institutional resistance forms another substantial barrier to addressing junk science. Law enforcement agencies and prosecutorial bodies often exhibit a profound reluctance to amend established practices. There's an inherent inertia within these institutions; changing methods, admitting past mistakes, and embracing new protocols require significant shifts in culture and mindset.

Law enforcement officials and prosecutors may fear that conceding errors or questioning forensic methodologies could undermine their credibility, lead to reopening past convictions, or even expose them to legal liabilities.

In Texas 'tough on crime' impacts the guilty as well as the innocent

Politicians like Greg Abbott and Ken Paxton project an image of being tough on crime, but they’re also tough on those who are innocent, per a year-end report from the Texas Coalition to Abolish the Death Penalty, as reported by The Austin Chronicle.

The annual report tells the stories of several individuals who faced execution in 2024 despite evidence that they were not guilty of the crime for which they were convicted. Three of the eight people the state planned to execute this year tried to present evidence of innocence. The state killed Ivan Cantu on Feb. 28, despite evidence not heard by his trial jury – or any court – which demonstrated that the main witness against him lied on the stand about important details of the case. In July, Ruben Gutierrez received a last-minute stay from the U.S. Supreme Court, which agreed to decide whether he should be allowed to sue the state of Texas to compel them to conduct DNA testing on items involved in his conviction. Gutierrez has said for years that such testing will show he is innocent. The state of Texas has fought the testing every step of the way.

The most glaring example of that kind of intransigence was the case of Robert Roberson. Roberson was convicted in 2003 of killing his chronically ill 2-year-old daughter Nikki on the basis of the dubious medical hypothesis known as “Shaken Baby Syndrome,” now regarded in many circles as junk science. Roberson’s advocates have tried for years to get Texas’ criminal justice system to consider evidence showing that Nikki died of undiagnosed pneumonia, not being shaken. The courts have refused to grant him a new trial. Gov. Greg Abbott, Attorney General Ken Paxton, and the members of the Board of Pardons and Paroles have supported his execution.

The Texas Supreme Court stayed the execution on Oct. 17 at 9:45pm, four hours after it was to have begun, to allow the Texas House Committee on Criminal Jurisprudence to bring Roberson to the Capitol to testify on his innocence. Paxton stopped the testimony last month, allowing the Texas Department of Criminal Justice to ignore a subpoena from the committee. Roberson’s supporters expect another execution to be set for him in the coming year.

In two other death penalty cases, courts decided that Melissa Lucio and Kerry Max Cook were innocent of the crimes for which they were convicted. The Texas Court of Criminal Appeals is considering whether to accept the recommendation of Lucio’s trial court and overturn her death sentence. She remains locked up as she awaits the decision. Cook was officially exonerated by the TCCA nearly 50 years after his conviction and is now free.

The TCADP’s report shows that Texas juries are continuing to sentence fewer and fewer people to death. Only six new people were sent to death row this year. However, as death sentences decline, they continue to be applied disproportionately to people of color. Five of the six men sentenced to death this year are people of color: three are Black, one is Hispanic, one is Native American. According to the report, nearly 70% of death sentences over the last five years have been imposed on people of color. More than 40% were imposed on Black defendants. This disparity hasn’t changed over the years. Although Black people constitute about 13% of Texas’ population, they represent 47% of death row.

But the total number of people awaiting execution is down. As of Dec. 16, TDCJ lists 174 people on the row, the lowest number since 1985.

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Fire science under scrutiny in review of 40 year old conviction

The  man who has been serving consecutive life sentences for the 1984 rooming house fire in Beverly has the opportunity for a new trial, according to WBGH in Boston.

Last week, Essex County Superior Court Judge Jeffrey Karp overturned James Carver’s convictions for second-degree murder and arson. In the decision, Karp wrote a new trial was necessary because advances in fire science and eyewitness testimony “cast real doubt on the justice of his convictions.”

The fire killed 15 people. During the trial in 1989, prosecutors claimed Carver acted out of jealousy when he discovered a tenant of the rooming house was dating his ex-girlfriend. An investigator said the fire started from a stack of gasoline-soaked newspapers aflame in the only exit of the building. Witnesses said they saw Carver by the newspapers before the blaze.

Carver, 60, has maintained innocence and appealed, claiming new evidence would prove that other people set the fire. He has multiple chronic conditions and has used a wheelchair since 2006. He sought medical parole in 2021 but was denied.

This year, the court heard testimony from fire science and memory experts.

Karp’s decision mentions the fire marshal failed to “adequately rule out an electrical source.” On eyewitness memory, he noted experts revealed “the risk of misidentification significantly increases each time a witness is exposed to a suspect or the suspect’s photograph.” His decision mentions one witness was shown Carver’s photo three times before identifying him in a lineup.

Attorney Charlotte Whitmore of the Boston College Innocence Program said over 25 students have worked on Carver’s case in the past nine years.

“A lot of the evidence that the prosecution used in the 1980s to attempt to prove that this fire was an arson are now outdated, you know, sort of myths that fire scientists no longer rely on,” said Whitmore.

She and attorneys Lisa Kavanaugh, director of the Innocence Program at Committee for Public Counsel Services drove to Old Colony — where Carver is currently housed at — on Christmas Eve to let him know of Karp’s decision.

“Charlotte and I each took one of his hands and told him, 'we’re here with really good news,'” said Kavanaugh. “His face sort of lit up and he was like, 'Really?’ Then we told him 'the judge allowed your motion for new trial.’ It was a very emotional moment. He started crying. He was really just completely overwhelmed.”.

Essex County District Attorney Paul Tucker has 30 days to decide whether to retry the case. In a statement, he said his office has received the court’s decision allowing Carver’s motion for a new trial.

“This was the defendant’s fifth such motion,” Tucker wrote. “His four prior motions were denied. We are carefully reviewing the ruling and exploring options. We are also attempting to locate and notify the families of the fifteen victims who were killed in the fire.”

A CVS and memorial stand at the rooming house site. Amanda Mazzaglia of the Elliott Chambers Fire Memorial Foundation said the foundation has “always been about the victims and never served as an interest in the legalities of the crime,” but declined further comment.

Within the next few weeks the court will also likely hear “the issue of his release conditions,” said Kavanaugh, who said they’re working on a release plan for Carver, in hopes that can occur during the time the commonwealth decides whether the case can be tried.

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Texas set to execute man in the face of enormous opposition due to conviction by shaken-baby syndrome

As Texas prison officials ready the death chamber to execute Robert Roberson tonight, a thundering chorus of people who believe the state is about to kill an innocent man hope last-minute measures will buy him more time, reported The Texas Tribune.

Roberson was convicted of killing his 2-year-old daughter, who was diagnosed with shaken baby syndrome. But experts, lawmakers and the lead detective in the girl’s case say the science supporting Roberson’s death sentence no longer holds up — and the state’s “junk science” law should have already halted his execution.

In an stunning move, a Texas House committee voted unanimously Wednesday to subpoena Roberson ahead of his Thursday execution, a step that sought to give the man a final lifeline after a series of court rejections left him on track to become the first person in the country executed for allegedly shaking a baby to death.

That move “sets up a bit of a separation of powers issue that I think would result in him not being executed tomorrow night,” Benjamin Wolff, director of the Texas Office of Capital and Forensic Writs, said on Wednesday, adding that he had not seen this maneuver attempted before, so it was not clear what could happen. “It’s an unprecedented subpoena and an unprecedented case.”

But Roberson set to be executed around 6p.m. Thursday, it’s unclear if that gambit will work.

The Texas House Criminal Jurisprudence Committee approved the subpoena hours after the state’s highest criminal court again declined to stop the execution, and after the Texas Board of Pardons and Parole denied Roberson’s request for clemency. Gov. Greg Abbott cannot defy the board’s recommendation, but he can issue a 30-day reprieve. Abbott has remained silent. Roberson’s lawyers have also asked the U.S. Supreme Court to step in.

The committee’s subpoena — which was offered by state Reps. Brian Harrison, R-Midlothian, and Jeff Leach, R-Plano — calls for Roberson to "provide all relevant testimony and information concerning the committee's inquiry."

Gretchen Sween, Roberson's attorney, said that she had "no knowledge" of a subpoena being used before in an effort to pump the brakes on an execution.

"It shows how strongly the lawmakers who have learned about this case feel about the injustice," she said.

The parole board’s six members voted unanimously earlier Wednesday to deny Roberson's clemency application. The decision came amid a forceful bipartisan campaign to spare Roberson’s life, and as lawmakers raised concerns that the courts were not properly implementing a groundbreaking 2013 “junk science” law that was intended to provide justice to people convicted based on scientific evidence that has since changed or been debunked.

“It is not shocking that the criminal justice system failed Mr. Roberson so badly. What’s shocking is that, so far, the system has been unable to correct itself," Sween said in a statement after the board's vote. “We pray that Governor Abbott does everything in his power to prevent the tragic, irreversible mistake of executing an innocent man.”

Brian Wharton, the lead detective in Roberson’s case who sided with the prosecution at trial, has called for his exoneration, as has bestselling author John Grisham. A large majority of the Texas House has asked the courts to take a second look at his case. Doug Deason, a GOP megadonor and Abbott ally, also publicly said he believes in Roberson’s innocence, according to the Houston Chronicle.

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More forensic junk science: bitemark analysis

Despite the popularity of cop shows about investigators bringing criminals to justice based on a few fingernail clippings and a dropped tissue, the track record of forensic evidence is spotty at best. Critics, including Reason journalists, have shown that too much crime-stopper "science" resembles tea-leaf reading more than it does the efforts of Sherlock Holmes, reported Reason Magazine.

Now a federal agency says that bitemark analysis, something of a poster child for bad forensic technique, is every bit as sketchy as skeptics claim.

"Forensic bitemark analysis lacks a sufficient scientific foundation because the three key premises of the field are not supported by the data," finds a draft report from the National Institute of Standards and Technology (NIST). "First, human anterior dental patterns have not been shown to be unique at the individual level. Second, those patterns are not accurately transferred to human skin consistently. Third, it has not been shown that defining characteristics of those patterns can be accurately analyzed to exclude or not exclude individuals as the source of a bitemark."

There's a lot more in the report, which is currently in its comment period and so isn't yet finalized. It's worth noting this 2022 document is a response to a 13-year-old call for a stronger scientific basis for the proliferating use of forensic evidence.

"NIST scientific foundation reviews fill a need identified in a landmark 2009 study by the National Academies of Sciences, Engineering, and Medicine, which called for research to address issues of accuracy, reliability and validity in many forensic science disciplines, including bitemark analysis," acknowledges NIST.

That was after journalist Radley Balko, then with Reason, had pointed out some of the glaring flaws in forensic science in general, and bitemark analysis in particular.

"He claims to have perfected a method of identifying bite marks using laser light and orange goggles that he modestly calls 'the West Phenomenon,'" Balko wrote in 2007 of Mississippi dentist Michael West. "He has said his error rate in bite mark analysis is 'something less' than the error rate of 'my savior, Jesus Christ' and has compared his bite mark virtuosity with the musical talent of Itzhak Perlman."

Balko subsequently literally wrote the book about West, fellow practitioner Dr. Steven Hayne, and the injustices resulting from their forensic testimony. But even with NIST acknowledging, at long last, that "the ability of bitemark analysis to accurately exclude or not exclude individuals as a source of the mark is not supported," he sees little hope for reform.

"If the criminal legal system prioritized justice, we'd have long ago seen a thorough review of every bitemark conviction in the country—if not after the first series of DNA exonerations of bitemark convictions, then certainly after the NAS report cast doubt on the entire discipline," Balko writes. "Tragically, judges and prosecutors seem to have concluded that real legitimacy lies in pretending the biggest, most consequential mistakes never happened."

Maybe not, but it's worth highlighting the extent to which the NIST report debunks bitemark analysis. The report points out that bitemark analysis relies on the assumptions that: teeth marks are unique; that they reliably transfer to surfaces such as skin; and that the marks can then be analyzed and linked to specific individuals.

First of all, it's not at all clear that bites leave distinct patterns. "Bitemark patterns typically only represent the anterior teeth" (those in the front of the mouth) and the marks they leave can vary depending on injuries, breakages, or obstructions. That leaves limited information with which to work even before we get to the contradictory evidence available about the individuality of bites from one mouth to the next.

Second, skin is the surface most often analyzed for bitemarks, but it's malleable and doesn't reliably take teeth marks to begin with. "In addition, human skin can change the appearance of a bitemark over time depending on the rate and amount of swelling at the site, healing, and skin elasticity." As a result, "human skin as a dependable material for bitemarks is a key area of dispute in the field."

Finally, linking bitemarks that may or may not be unique, left on elastic surfaces that swell and heal, to people is fraught with uncertainty. "Multiple studies have demonstrated a widespread lack of agreement on conclusions reached with bitemark data, including those relating to whether the mark was indeed a bitemark, features present, and inconsistency in techniques used to analyze bitemarks from one case to the next."

That's right. Scientists don't always agree they're examining a bitemark, let alone on who left it.

The NIST report might or might not inspire some humility in the criminal justice system. But it should offer ammunition to defendants against whom bitemarks are included in the prosecution's evidence.

Unfortunately, as that 2009 NAS call for better scientific support for forensic science suggests, the problem doesn't stop with bitemarks. Reason has documented the unreliability of drug-sniffing dogs, flawed drug tests, shaken-baby junk science, and the sometimes dishonest testimony of technicians called to make the state's case. The unreliability of much of this evidence isn't a recent revelation.

"In September the President's Council of Advisers on Science and Technology (PCAST) released a report finding 'a dismaying frequency of instances of use of forensic evidence'—such as analyses of hair, bite marks, and shoe prints—'that do not pass an objective test of scientific validity,'" C.J. Ciaramella wrote for Reason in 2016. "This is not just a theoretical problem. Last year, the FBI admitted that nearly every one of the experts at its microscopic hair analysis lab had given scientifically invalid testimony. The breaches affected almost 270 cases. Of those, 32 defendants were sentenced to death, and 14 were executed or died in prison."

So, the NIST report on the failings of bitemark analysis provides extra backing for what even the White House admitted two administrations ago: those cop shows about super-accurate science linking criminals to their foul deeds are more science fiction than whodunnit. As it turns out, it takes a lot more evidence to end the use of bad forensic techniques than it does to throw people in prison or put them on death row.

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Judge calls 'shaken baby syndrome' junk science

When Michelle Heale was sentenced for shaking to death 14-month old Mason Hess, she told the courtroom: “Innocent people are being sent to prison based on this flawed theory…This needs to stop.”

More than six years later, a New Jersey judge agreed with her, reported The Appeal.

In January of this year, Superior Court of New Jersey Judge Pedro J. Jimenez, Jr. ruled in a different case that prosecutors could not introduce evidence of the scientifically dubious theory used to convict Heale—”Shaken Baby Syndrome.” In that case, a father was accused of shaking his 11-month-old son, who was identified as D.N. in the judge’s opinion.

Jimenez wrote that the diagnosis of Shaken Baby Syndrome, also known as Abusive Head Trauma, is “an assumption packaged as a medical diagnosis” and “lacks scientific grounding.” The parents had brought D.N. to the hospital because he appeared to be having seizures. Although he had a documented history of medical problems, including a hospital stay for the first seven months of his life, doctors concluded that he had been shaken.

“No study has ever validated the hypothesis that shaking a child can cause the triad of symptoms associated with AHT,” Judge Jimenez continued. “This diagnosis is akin to ‘junk science.’”

In February, Colin Miller, a professor at the University of South Carolina School of Law, submitted an application to the New Jersey Attorney General’s Conviction Review Unit asking that they “correct an injustice and set Michelle Heale free.” Last month, he sent the office a letter detailing Jimenez’s ruling. Miller began work on Heale’s application after he read The Appeal’s investigation into her case, which was published in 2020.

Proponents of the Shaken Baby Syndrome diagnosis claim that shaking a baby produces a so-called “triad” of catastrophic injuries exclusive to shaking — subdural hemorrhage, retinal hemorrhage, and brain swelling. The diagnosis does not require the presence of other injuries such as bruises, grab marks, or damage to the baby’s neck.

The injuries are so severe, these experts say, that the baby would immediately collapse. The last person with the baby — a parent, babysitter, or daycare worker — is often the prime (if not the only) suspect. The person accused is then left to prove they’re innocent of a crime that likely never occurred. They are up against damning testimony, often from physicians, who say with certainty that the baby’s injuries are comparable to those sustained from falling out of a window or being thrown from a car. In comparison, the defendant’s account — that the baby went limp — often seems farcical.

On Aug. 28, 2012, Heale was babysitting Hess in her New Jersey home. She says she was feeding him when he suddenly went limp.

Heale called 911. “His whole body is lifeless,” she told the operator. Hess was then rushed to the hospital.

The emergency room doctor diagnosed him with pneumonia and found evidence of a possible bacterial infection. Hess was airlifted to Children’s Hospital of Philadelphia. Their doctors quickly came to a different conclusion: Hess must have been shaken.

Hess was pronounced dead on Sept. 1. Although Heale, a mother of two, had no history of abuse, she was convicted of aggravated manslaughter and child endangerment and sentenced to 15 years in prison. At the time, her twins were six years old.

Studies and several exonerations have shown that there are many other explanations for the so-called triad, including accidental, seemingly inconsequential short-distance falls that may have occurred days or weeks before a baby’s collapse; trauma sustained during childbirth; or illness.

In Heale’s case, Hess was sick and had fallen in his home about a week before his collapse. The fall caused a bruise on his head that was visible during the autopsy.

Before Heale’s trial, her attorneys had contacted Chris Van Ee, a biomechanical engineer and accident reconstruction specialist, about her case. He wrote and sent them a report, but never heard back. The report was not introduced at her trial and he was not called to testify. In his report on Hess’s death, Van Ee wrote that the child did not have any bruises, skull fractures, or other injuries that would have indicated he was shaken.

Van Ee has testified as an expert in several criminal cases, including at the hearing held before Judge Jimenez to determine if the prosecution could introduce evidence of SBS against D.N.’s father.

Jimenez is not the first judge to question the SBS diagnosis. Another New Jersey judge acquitted a father who was accused of shaking his infant son. The father had said the baby unexpectedly went limp, at which point he’d taken him to the hospital. In the judge’s ruling he wrote that it was widely accepted in the scientific community that other causes can “‘mimic’ findings commonly associated with SBS.” His decision came down in the summer of 2018, about two months after the state Supreme Court refused to hear Heale’s appeal.

“There have now been two New Jersey courts that have deemed the same type of testimony used to convict Michelle Heale unreliable and inadmissible,” USC’s Miller wrote to the Attorney General’s conviction review unit in April. The most recent ruling further strengthens Heale’s innocence claim, Miller said, and he “again respectfully asks that her convictions be overturned.”

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