| On July 29, 2009, the mother of a two-year-old boy and her boyfriend, 28-year-old Gregory Council, brought the boy to Wolfson Children’s Hospital in Jacksonville, Florida. The boy, RW, was suffering from seizures.
When a CT scan showed a subdural hemorrhage and an x-ray of the boy’s chest revealed healing rib fractures, the Child Protection Team was notified, and a child abuse investigation was commenced.
The boy was near death, but survived, though he suffered serious brain damage.
The boy’s mother, SB, told medical personnel and police that she worked two jobs and was only home from about 5:30 p.m. to 9 p.m. She said that beginning after the July 4th holiday, Council, who she had met several months earlier, cared for RW while she was at work.
On August 18, 2009, Jacksonville Sheriff’s detective Alan Leavens questioned Council and accused him of causing the boy’s injuries, specifically that Council violently shook the boy. Council denied shaking RW. “I am not shaking no kid,” Council declared. “I don’t shake my kid.”
Council said he may have gently pushed the boy to go into his bedroom if the boy balked. He said he might have made the boy stand next to the wall—a “time out.”
“If I accidentally pushed him, sir, I might have accidentally pushed him once—not no
two, three, four, five, six, seven times,” Council said. “God honest truth, I might have
accidentally, you know, not forceful, pushed him, just go on in your room. Just go.”
Leavens replied, “That won’t explain the injuries.”
Council said that on one occasion, he pushed open the door to the bedroom, and the door struck the boy, who was lying on the floor near his bed, on the side of the head. He said the boy cried in pain. Council said he called SB at work and she told him to put ice on it, which he did.
Ultimately, even though Leavens would later concede that nothing that Council said accounted for the boy’s injuries, once Council conceded that whatever happened had occurred while in Council’s care, Leavens arrested him.
Council was charged with one count of aggravated battery on a child. On June 27, 2011, a jury was selected in Duval County Circuit court.
SB testified that she met Council in late 2008. At the time, he had moved from Illinois to Jacksonville to care for his grandmother. They developed a relationship, and, in 2009, Council began coming to her home to care for RW when SB was at work. In June 2009, Council stopped caring for the boy because SB’s mother came to stay for a month. When SB’s mother left in early July and SB took a second job, Council began caring for BW for all but the few hours when SB was home between jobs.
Sb said that the boy had been an active “rambunctious” toddler until mid-July when he spiked a fever of 103 degrees. In mid- July, SB said she and Council took RW to the Orange Park Medical Center. The boy was listless, had no appetite and vomited, SB reported. SB said that medical personnel said the boy’s vital signs were normal, but that he appeared to have some blood vessels in his eyes that had burst. SB later testified that she was told that was due to the boy’s vomiting, “They didn’t really know what was wrong, so they diagnosed him with a viral infection,” she later testified.
She said she later took the boy to his primary care doctor. The boy had become “uncoordinated” and was having trouble walking, she said. The primary care doctor wrote a referral for a spinal tap at Wolfson Children’s Hospital. However, no spinal tap was done, she said.
RW was diagnosed with pneumonia, given a shot, and sent home with antibiotics, SB said. On July 29, she said she arrived home from work about 5:30 p.m. She checked on RW, and he was sleeping. Not long after, as she was just finishing a shower, Council brought RW to her. She said RW was “making a weird noise” and appeared to be having a seizure. “His hands were shaking. His eyes were rolling around,” SB testified.
She said she and Council then drove the boy to Wolfson.
Dr. Solange Benjamin-Thorpe, a pediatric critical care physician, testified that she examined RW. She said she noticed bruising on the right side of his face and along his neck. An x-ray showed what appeared to be healing rib fractures. Most significantly, a CT scan revealed a fresh subdural hemorrhage. “[T]here was bleeding on both sides of the front of his head, the right side more than the left, and as part of the workup we did chest x-rays on him and he had some healing fractures,” she testified.
Dr. Benjamin-Thorpe testified that RW had retinal hemorrhaging as well. She told the jury that “you would not expect to see subdurals from just a simple fall or the retinal hemorrhages.” She said the brain hemorrhage was very recent—"that day—a few hours preceding.”
She said she spoke to SB. “I couldn't elicit a history as to what happened. I mean, there was [a] history of him being feeling unwell, having been taken to an emergency room on at least two occasions, but there was no history of trauma that we could get to explain what we were seeing.”
She testified that RW was put on a breathing machine for four days and then transferred from the intensive care unit to the pediatric ward of the hospital. After a couple of weeks, he was transferred to a rehabilitation facility.
Dr. Benjamin-Thorpe testified that the boy’s injuries were “devastatingly disturbing” and that she was “shocked” that the boy had survived. She said that she called in the Child Protection Team because the injuries met “the constellation of non-accidental trauma.” She said that the subdural bleeding was the result of veins that were broken as a result of a “shearing motion as opposed to a blunt motion.”
The prosecution played portions of Detective Leavens’s interrogation of Council. Leavens said that Council had given differing descriptions for some of the boy’s injuries. Leavens said Council first said that the bedroom door hit RW’s chin and later said it was the side of the head. Leavens said Council first said a scar on the boy’s chest was the result of a fall in the park and later said it was caused by hot oatmeal that was spilled during feeding.
During cross-examination by Council’s attorney, Leavens conceded that none of the incidents that Council had described were serious enough to cause the boy’s injuries. Council was charged because he was the boy’s caregiver, Leavens said.
Dr. Bruce McIntosh, the medical director of the Child Protection Team, testified, “One of the red flags in diagnosing child abuse is a story that changes over time. People often offer one story but when they get the feeling that people don’t believe them they tweak that story. They change it. They try to make it more credible. They try to come up with a story that doesn't make people raise their eyebrows, so the story that changes over time is very, very suspicious.”
“The child did have bruises to his ears,” Dr. McIntosh said. “Given the bruising to his face and ears, the mechanism of injury for his brain injury would have been some combination of blunt head trauma, having his head and ears boxed or struck very forcefully with something or against something very forcefully, violent shaking such that the brain rattled in the head, tearing blood vessels over the surface of the brain and possibly, in this case, choking or strangulation—that is, having the child’s airway or blood vessels in the neck blocked. And I say that because of the areas of dead and dying brain deep within the substance of the brain.”
Dr. McIntosh said a household fall could not cause the injuries suffered by RW. “Household falls don’t give you the dead brain deep within the substance of the brain that this child had.”
He added, “There are other causes of retinal hemorrhages, but when you don’t have a history of a fall from a very great height or of a motor vehicle accident or of being in the intensive care unit with very high blood pressure—when you don’t have some other medical explanation, the presence of retinal hemorrhages generally goes with child abuse.”
“[H]e really presents [as] the picture of a true battered child,” Dr. McIntosh testified.
Asked about studies that had been done suggesting that a person could not shake a child hard enough to cause such injuries, Dr. McIntosh said the studies “fly in the face of common sense and reality, so they are not accepted in the general community. They are not scientifically valid.”
Asked about Shaken Baby Syndrome (SBS), Dr. McIntosh said, “I would not call this a shaken baby case. This is a baby who suffered blunt head force trauma—probably was shaken as well, but may have been choked and strangled as well…It’s my opinion that [RW] is a victim of abusive head trauma, that he was violently shaken, slammed or impacted and probably choked or strangled as well, producing bleeding over the surface of his brain, bleeding into the back of his eyes, and death of a large portion of his brain.”
Dr. Edward Willey, a forensic pathologist, testified for the defense that RW’s high fever could have contributed to the seizures, but there was no doubt that RW had a serious brain injury.
Defense lawyer Davis asked, “Could this have occurred as a result of shaken baby [syndrome]?”
“No,” Willey replied.
“Why is your opinion that that could not have occurred as a result of shaken baby?” Davis asked.
“Well, this child weighs almost 30 pounds—29 and a fraction pounds—and shaking something that weighs that much is very difficult and you cannot produce the acceleration that’s necessary to damage [the] brain.”
Assistant District Attorney Alan Mizrahi objected, arguing that statement was “beyond the scope of this witness’s expertise.”
Judge Russell Healey sustained the objection, and ordered the testimony stricken, saying that testimony was a matter of biomechanics, not pathology.
The defense sought to call John Lloyd, an ergonomist, biomechanist, and brain injury specialist. During a hearing outside the presence of the jury, Lloyd testified that he had performed simulations using mannequins the same size as RW. He said that it was possible that RW suffered the injury to his head by falling out of his crib.
Based on his analysis, Lloyd testified, “I have determined that a short fall, even a fall as low as 18 inches, could in some circumstances cause head injury in an infant.”
He concluded, “[I]t is my expressed opinion that non-contact shaking is a benign biomechanical activity that results in physical exhaustion to the adult without injury to the infant. Whereas, short-falls are undoubtedly injury-producing and clearly account for the type of injury sustained by [RW].”
The prosecution objected to Lloyd’s testimony. Judge Healey sustained the objection and barred Lloyd from testifying. “I don’t find that this testimony will be helpful to the jury. In fact, I think it could be somewhat confusing because it’s hard for me to grasp personally because I think anybody is going to be curious as to the science…of it all and how it goes from really engineering to medicine.”
Judge Healey said the field of biomechanics could not translate into a medical diagnosis regarding the extent of RW’s injury.
Council testified and denied injuring the boy. “I never shook him,” Council declared.
He described how he had opened the door to RW’s bedroom and struck the boy on the side of the head because the boy was on the floor. He said he called SB at her job and she told him to put ice on RW’s head. Council said RW calmed down afterward.
In rebuttal, the prosecution recalled SB, who testified that Council never called her at work and reported hitting RW with the bedroom door. She also said that Council originally told her the scar on RW’s was the result of a fall in the park, but later said that it was from hot oatmeal that was spilled.
On June 29, 2011, the jury retired to deliberate at 4:40 p.m. At 5:12 p.m.—32 minutes later—they reached a verdict finding Council guilty of aggravated battery on a child. In August 2009, Judge Healey sentenced Council to 30 years in prison.
In July 2012, the First District Court of Appeal set aside the conviction and ordered a new trial. “Dr. Lloyd was not offering a medical opinion as to the extent of the victim’s brain injury, a matter which was not in dispute,” the appeals court said. “Rather, based upon his biomechanical studies, he opined that (1) a child of the victim’s height and weight could have sustained similar brain injuries by falling out of a daybed; and (2) shaking alone could not have caused such injuries. We conclude Dr. Lloyd was qualified to offer these opinions as to causation because the mechanism of injury (falls and shaking) fell within the field of biomechanics.”
Council went to trial a second time in July 2015. At this trial, SB was allowed to testify that she did not believe that Council did anything that caused RW’S subdural hemorrhage. SB testified that Council did not believe in corporal punishment. She testified the police had threatened to have RW removed and put up for adoption unless she testified for the prosecution.
In addition, an emergency room nurse testified that after SB and Council brought RW to the hospital on July 29, they told her that they heard a thump in RW’s bedroom, as if he had fallen out of bed.
Davis also presented evidence that the crib that RW was using was the subject of a massive recall of about one million cribs in 2007, but SB had not attempted to replace the crib. The recall was prompted by an investigation by the Chicago Tribune newspaper which disclosed that the federal Consumer Product Safety Commission had records of numerous complaints that the side railings inexplicably and without warning would drop down. At least three infants had died, the newspaper reported.
In the end, Davis chose not to call Lloyd as a witness, despite the ruling of the appeals court.
On July 24, 2015, the jury acquitted Council and he was released.
– Maurice Possley
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