Court of Appeals reverses ’06 ruling Cases involved two men accused of injuring their infants by shaking
By KENNETH HART - The Independent

GREENUP — The Kentucky Court of Appeals has reversed a 2006 ruling by a former Greenup circuit judge that affected cases involving two men accused of injuring their infant children by violently shaking them.

In a ruling handed down Friday, a three-judge panel of the appeals court ruled that now-retired Judge Lewis D. Nicholls erred when he barred prosecutors from introducing expert testimony regarding shaken-baby syndrome.

Because of the ruling, Greenup Commonwealth’s Attorney Clifford Duvall was unable to bring the cases against the two defendants, Raymond Martin and Christopher A. Davis, to trial. Martin and Davis were indicted in separate cases in 2004 for allegedly abusing their infant sons. Martin was charged with second-degree assault; Davis with first-degree criminal abuse.

The victims — who were three and four months old, respectively, at the time of the alleged abuse — both exhibited the classic signs of shaken-baby syndrome: bleeding in the brain, also known as subdural hematoma, and bilateral hemorrhaging, or bleeding behind both eyes.

Shaken-baby syndrome was first recognized in the 1970s and the diagnosis has been accepted by the American Association of Pediatrics and the National Association of Medical Examiners. However, at a March 29, 2006, hearing, attorneys for Martin and Davis presented expert testimony they maintained was proof that the diagnosis wasn’t reliable enough to send their clients to prison.

Dr. Ronald Uscinski, an associate professor of neurosurgery at Georgetown University, testified during the hearing that a recent study had shown shaking alone would cause infants’ necks to snap before it would cause bleeding in their eyes and brains. Experts for the prosecution countered that Uscinski’s conclusions were flawed and could not be proved in controlled experiments because researchers couldn’t shake real infants.

On April 17, 2006, Nicholls ruled that testimony from the prosecution’s chief expert, Dr. Betty S. Spivack, a forensic pediatrician at Kosair Children’s Hospital in Louisville, did not meet the standard for scientific reliability, and concluded, based largely on the testimony of Uscinski, that shaking alone could not have caused the type of injuries suffered by the two infants.

“To allow a physician to diagnosis shaken-baby syndrome with only the two classical markers, and no other evidence of manifest injuries, is to allow a physician to diagnose a legal conclusion,” Nicholls wrote. Duvall appealed Nicholls’ decision, which child advocates said set a dangerous precedent and had the potential to hamper the ability of the criminal justice system to protect children.

The appeals court ruled that Nicholls abused his discretion in keeping out the testimony and ordered the cases reversed and remanded for further action. The panel concluded Nicholls’ decision to exclude Spivack’s testimony was erroneous “because it was founded on the unsupported legal conclusion that because there was dispute amongst the experts as to the possible cause of the infants’ injuries, it was the court’s rule to choose the side it found more convincing and exclude the side it found less convincing.”

Judges also wrote Nicholls should have allowed both experts to testify and a jury to choose the one it found more credible because the “gatekeeping” function assigned to judges is restricted to keeping out “junk science” and unreliable expert testimony. Under the law, attorneys for Martin and Davis now have 30 days to request a discretionary review by the Kentucky Supreme Court.

Duvall said Friday, if the defense does appeal, further action on his part would have to await a ruling from the high court. “If it remains in our favor, we will set those cases for trial,” he said.

“We worked very hard on these cases and we feel vindicated by the decision,”Duvall said. “We also give lots of credit to James Shackleford, who briefed the issues before the court of appeals for (former Kentucky Attorney General) Greg Stumbo.”