| On February 22, 2015, 24-year-old Dane Krukowski and his 23-year-old partner, Codie Lynn Stevens, brought their two-month-old son, Roegan, to Covenant Hospital in Saginaw, Michigan because he began twitching and they feared he was having seizures.
There were no signs of trauma. His heart and respiratory rates, as well as his temperature, were normal. Hospital staff administered Ativan intravenously to try to stop the twitching. Krukowski and Stevens saw Roegan’s hand was bent back dramatically to insert the intravenous needle. At that point, Roegan’s heart rate dropped precipitously and his eyes glazed.
Emergency room physician Jessica Kiry suspected low sodium or electrolyte abnormality and ordered lab tests. When the tests ruled out these possibilities, she ordered a CT scan and an MRI. These tests revealed bleeding in the brain. Dr. Kiry suspected non-accidental trauma.
A catheter was inserted into Roegan’s skull and 10 ounces of fluid were drained. Dr. Kristin Constantino, a radiologist, examined x-rays taken March 1 of Roegan’s entire body. Dr. Constantino found evidence of a skull fracture, a fracture in the forearm, and healing fractures in his ribs.
Roegan recovered and was discharged on March 3, 2015. However, doctors concluded that the boy’s injuries were the result of violent shaking. On March 18, Krukowski and Stevens were arrested and charged with second-degree child abuse.
In July 2015, Krukowski’s defense attorney, Phillip Sturtz, petitioned the court for appointment of a neurologist and an ob-gyn specialist to consult on the case. He specifically sought a review of the child’s difficult birth and an incident on February 7 when the baby slipped out of Krukowski’s hands and struck his head in the bathtub. Judge Janet Boes authorized $1,000 and said more would be approved if necessary.
In November 2015, Sturtz asked again for funding. When Judge Boes reminded him that funds had already been provided, Sturtz said he believed the judge had merely allowed for the use of an expert physician in Family Court, where proceedings had been instituted to put the child and his older sister in foster care and to terminate the couple’s parental rights.
Judge Boes said that the defense could employ the services of the Family Court physician. In February 2016, Judge Boes noted that the defense had not sought additional funding for expert consultations, and Sturtz said he did not plan to call any expert witnesses at trial. At that time, the prosecution offered to allow the couple to plead guilty to attempted second-degree child abuse and receive probation. They rejected that offer.
On April 27, 2016, Krukowski and Stevens went to trial in Saginaw County Circuit Court. The evidence showed that Roegan was born December 6, 2014, following 19 hours of labor. He had a very large head and he was bruised about the head and chest. At first, Roegan could not hold down formula or breast milk. Several types of formula were tried before one was found that he could keep down. Stevens and the baby were discharged on December 9.
On December 11, Stevens took the baby to her pediatrician, Dr. Elvia Dawis, reporting that Roegan was not keeping his formula down, that he cried almost constantly and continued to vomit. Dr. Dawis thought that the baby was a bit jaundiced and suggested more sunlight and plenty to eat. A return visit was scheduled for February 9, 2015.
On Saturday, February 7, 2015, Krukowski was bathing Roegan. When he was taking him out of the tub, the baby jerked and slipped and fell, striking his head. Krukowski grabbed the baby and called Stevens, who dried the baby off, dressed him, and checked him over. Roegan’s eyes followed her finger and he grasped her finger. She said she checked his feet for reactions and he responded.
They noticed a small swelling on Roegan’s head, but otherwise the boy seemed to be fine. They wrapped a small bag of frozen peas in a towel and put it on his head. The following day, Roegan was awake and smiling.
On February 9, Stevens took Roegan to Dr. Dawis, the pediatrician, who recommended the boy be taken to a chiropractor. Roegan had appointments on February 9, 10 and 18. On the first visit, Dr. Michael Dense put Roegan between his legs and adjusted his neck, making a cracking sound, like a knuckle popping. He then hung Roegan upside down and twisted him, then laid him down, causing the neck to make another cracking noise.
On February 10, Stevens brought Roegan back to the chiropractic office. Dr. Jason Barrigar performed the same manipulations. On February 18, Dr. Barrigar saw Roegan again and the treatment was the same.
On February 21, Roegan, who had been behaving normally, vomited after having a bottle. Stevens, who worked at a pharmacy, thought Roegan might have the flu. He continued vomiting and she made him a bottle of peppermint water, which he managed to keep down. He took another bottle of peppermint water before going to bed. He slept through the night.
On Sunday, February 22, Roegan awoke whimpering. Stevens found his arm twitching in his crib. That’s when they called the hospital and were told to bring him in.
Dr. Gerard Farrar, a radiologist, testified that he read Roegan’s MRIs. He said he saw a subdural hygroma—evidence of an old bleed—and acute blood, which was evidence of a more recent bleed. Dr. Farrar testified the old bleed could have been a couple of weeks old, and the new bleed a day or two old. He testified the injuries could have been caused by a bathtub fall or by being shaken.
Ophthalmologist Dr. Majed Sahouri testified he used a RetCam on Roegan to look through his pupil and saw numerous hemorrhages in the back of Roegan’s eyes. Based the RetCam views, Dr. Sahouri testified, “Hemorrhages of this severity usually I would characterize as non-accident.” Dr. Sahouri testified hemorrhages of this kind were caused by “shaking,” and could not be caused by blunt force trauma.
Dr. Frank Schinco, a neurological surgeon who treated Roegan, testified that with the combination of hematomas and retinal hemorrhages, “it would indicate a very significant probability and likelihood that the child had been shaken in a typical manner. When you see retinal hemorrhages of that type, what we see, subdural hemorrhages that are of different ages, that is highly diagnostic of Shaken Baby Syndrome.”
Shaken Baby Syndrome (SBS) was a term coined to describe a condition first articulated in 1971. SBS is said to arise when an infant is shaken so hard that the brain rotates inside the skull, causing severe and potentially deadly brain injury, but often without any external signs of harm. SBS is said to involve a telltale “triad” of symptoms—brain swelling, brain hemorrhaging, and retinal hemorrhaging. When present in an infant who has no outward signs of abuse, this triad of symptoms indicates that the child has been violently shaken. According to prevailing medical wisdom at the time of the incident, no other injuries or pathologies could cause these three symptoms to occur at the same time. Moreover, it was thought that a victim of SBS became unresponsive immediately, and therefore the last person to have physical care of the baby must have caused the injuries.
Dr. Constantino testified about the fracture of Roegan’s skull and concluded the skull fracture could have been caused by a bathtub fall.
Dr. Michael Fiore, a specialist in pediatric critical care who treated Roegan at the hospital, testified about the skull fracture and swelling in Roegan’s brain. He said the fracture was “like a crack, and the swelling of the brain causes that crack to split open.”
During closing argument, the prosecutor asked the jury to “visualize” Krukowski shaking Roegan. “Are you now…trying to visualize: Did Dane grab that baby and shake that baby? Did Dane cuff that baby? Instead of it slipping out of his arms, did he get angry because that baby squealed like it did all of the time when it came from the warm water into the cold and he just had enough?...Did [Krukowski] do something in one or two seconds, or a half a second?”
The prosecutor added that the prosecution didn’t have to prove that the baby was shaken, noting that “the doctors said this is not accidental. This baby was abused. This is nonaccidental. This is child abuse.”
On May 6, 2016, the jury convicted Krukowski and Stevens of second-degree child abuse. Krukowski was sentenced to three to 10 years in prison. Stevens was sentenced to 18 months to 10 years in prison.
The State Appellate Defender Office (SADO) was appointed to handle Krukowski’s appeal. SADO asked the Michigan Court of Appeals to remand the case back for a hearing on a claim that the trial defense attorney had provided an inadequate legal defense by failing to call any expert medical witnesses.
In May 2017, the appellate court granted the motion. In September 2017, a two-day hearing was held. Sturtz testified that although he was aware that the reliability of SBS had come under considerable doubt in the scientific community, he intended to challenge the prosecution’s case by arguing that the chiropractors “shook the living daylights…out of this child upside down.” He did not intend to challenge whether shaking had caused the injuries, but instead who did the shaking, he said.
In 2009, the American Academy of Pediatrics declared that because of questions of scientific accuracy and scientific basis, the term “SBS” was being replaced by Abusive Head Trauma “in recognition of the fact that inflicted head injury of children can involve a variety of biomechanical forces, including shaking.”
Even so, Sturtz said he did not object to the SBS evidence because he thought the evidence of shaking was going to be allowed to be presented to the jury. “A number of doctors used it in their testimony,” Sturtz said. “The baby was shaken.”
He also said that he did not object to the testimony about SBS because he didn’t think it was “a big deal.”
Sturtz said he talked to a number of doctors at an eye clinic with whom he was familiar because his son had married into the retinal doctor’s family. He said he also talked to a high school friend’s son, who was a doctor. None of these physicians reviewed the medical evidence. Sturtz admitted he “really didn’t get into” the issue of SBS with the doctors he consulted.
Dr. Karl A. Williams, a forensic pathologist and chief medical examiner of Allegheny County, Pennsylvania, testified that the diagnosis of SBS “is the most contentious debate in forensic pathology.” He said SBS was nothing more than a “hypothesis” that is “increasingly challenged” in the scientific literature.
Dr. Williams said that Roegan’s injuries were “not a case of shaken baby.” He was critical of the physicians who diagnosed SBS because they focused on it from the start and did not consider other diagnoses or investigate other causes for Roegan’s injuries.
Dr. Williams pointed to causes such as the circumstances related to Roegan’s birth, his abnormally large head, the chiropractic manipulation, and the fall in the tub. The chiropractic manipulation could have contributed to the subdural hemorrhage, he testified.
Evidence was presented that after Roegan was discharged from the hospital and was in foster care, he suffered another hemorrhage that was not attributable to the actions of a caregiver.
Dr. Steven Rundell, an expert in biomechanical engineering, examined the medical records and concluded that Roegan’s injuries were likely caused by the short fall described by Krukowski. He noted that there was “no neck injury consistent with shaking, so I see no evidence…that indicates that shaking occurred in this case.”
Despite the testimony, the motion for a new trial was denied.
Krukowski’s and Stevens’s cases were consolidated on appeal from that ruling. On August 1, 2019, the Michigan Court of Appeals reversed the convictions of Krukowski and Stevens and ordered the cases dismissed for lack of evidence. The court noted that the prosecution advanced three theories of second-degree child abuse: abandonment, reckless act, and intentional act. Under the abandonment theory, the prosecution said that Krukowski and Stevens “willfully abandoned” Roegan and thereby caused him serious physical harm. Under the reckless act theory, the prosecution said that the use of a frozen bag of peas and administering peppermint water were inadequate home remedies. Under the intentional act theory, the prosecution contended that the use of the peas and peppermint water were intentional acts likely to cause serious physical harm.
“Under the factual circumstances in this case, and based on the theories presented, the prosecutor failed to present sufficient evidence…to convict defendants of second-degree child abuse,” the court ruled.
The court chose not to address the claim that the defense had failed to call experts to rebut the SBS evidence. Instead, the court held that the prosecution had failed to present sufficient evidence to sustain the charge of child abuse. The court ordered Krukowski and Stevens be acquitted.
By that time, Krukowski and Stevens each had spent more than three years in prison. Krukowski was released on August 22, 2019. Stevens was released days later, on August 27, 2019.
The prosecution filed a brief in the Michigan Supreme Court, seeking permission to appeal the appellate court ruling. The Court granted argument on the prosecution’s application for leave to appeal and ordered briefing on the sufficiency issue.
In a legal brief opposing the prosecution, SADO attorney Jason Eggert said, “One day after their son started vomiting, and immediately upon noticing seizure-like activity, Ms. Stevens and Mr. Krukowski took him to the emergency room. The prosecutor criminalized their initial decision not to seek immediate medical assistance. Now on appeal, the prosecution attempts to recast the initial failure as affirmative acts in order to save these convictions.”
On November 10, 2020, the court heard oral arguments from the lawyers on both sides.
On November 20, 2020, the motion for leave to appeal was denied.
The Supreme Court declared, “On order of the Court, the application is again considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.”
– Maurice Possley
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