In the early morning hours of Jan. 10, 2016, 6-week-old Raylie Dickerson was rushed to Saint Francis Children’s Hospital in Tulsa by ambulance after she stopped breathing.
She remained on life support for three days before finally succumbing to her injuries.
Her parents, former University of Tulsa running back Tavarreon Dickerson and her mother, Jenna Dickerson, now Jenna Smith, had reported that their daughter had been fussy beforehand, and at 3 a.m. on the morning she had been sent to the hospital, Jenna had tried to feed her but she would not eat.
Tavarreon said he volunteered to watch the child so Jenna could get some sleep, and after taking the baby, he laid down on the couch with her and drifted off to sleep.
About 45 minutes later, he said, he woke up and found that Raylie was limp and not breathing. He burst into the bedroom and woke Jenna, who called 911.
However, though the child showed no outward signs of trauma, medical experts and police say his story didn’t add up — Raylie had severe bleeding in the space between her brain and its protective membranes, known as subarachnoid and subdural hemorrhaging, and swelling of the brain. A later autopsy revealed she also had two healing rib fractures and two bruises under her scalp.
Previous complaints of domestic violence against Tavarreon by Jenna, as well as an incident where Tavarreon spanked one of the couple’s older children and left a handprint, also aroused authorities’ suspicions, as did Jenna’s statement that the two had been arguing over Tavarreon’s infidelity in the days leading to Raylie’s death.
“There was a lot of issues with T and I,” Jenna told The Frontier. “We were very toxic for each other. It was not a relationship we should have held onto. Regardless of what went on between him and I, he loved the kids and he would never do anything to hurt them.”
In 2016, Tavarreon was charged in Tulsa County with first-degree child abuse murder.
During his jury trial, a child abuse pediatrician testified that the fractured ribs and bruises were all signs of abuse and the bleeding on Raylie’s brain could have only been caused by one thing — repeated abusive shaking.
Tavarreon was found guilty and sentenced to life in prison.
However, Tavarreon, who maintained his innocence throughout the trial and after conviction, would later seek to overturn his conviction. And during that process, a forensic pathologist would take another look at the samples of Raylie’s brain, and make a discovery that would throw into question whether Raylie indeed was killed by abuse. The discovery, the pathologist said, was “conclusive” evidence that Raylie had died from natural causes.
“The only thing I’ve been confident about for the last four and a half years is that I didn’t do it,” Tavarreon told The Frontier. “I’m just hoping they (the Oklahoma Court of Criminal Appeals) take the time and cumulatively put it together and say that he at least deserves a new trial.”
Tavarreon’s case is just one of scores of murder and child abuse convictions in Oklahoma that involve what was known until 2009 as “Shaken Baby Syndrome” but is now referred to as “Abusive Head Trauma.”
Many of the people convicted on shaken baby or abusive head trauma evidence maintain their innocence, but proving it can often be a difficult prospect — the cases and trials rely heavily on expert testimony that can prove expensive for defendants and are based on science that some in the medical field question.
Though many in the pediatric child abuse field considered Abusive Head Trauma to be settled science, there has been a growing chorus over the last decade of those who say that the injuries that typify the diagnosis could be caused by non-abusive injuries such as accidental falls or pre-existing medical conditions.
According to the state’s Child Death Review Board, there were at least 85 children between 2007 and 2017 who died as a result of Abusive Head Trauma, which includes Shaken Baby Syndrome.
For years, pediatricians and child abuse doctors were instructed by the American Academy of Pediatrics that three symptoms alone — bleeding in the retina of the eye, bleeding in the protective layer around the brain and brain swelling — were definitive indications of child abuse in the form of Abusive Head Trauma critics say. These three components are sometimes called the Triad.
The injuries to the brain caused by shaking are often so severe that the child would likely immediately lose consciousness, child abuse experts say, meaning that, most of the time, the last caregiver to be alone with the child is highly likely to be the person who inflicted the abuse.
“I think Abusive Head Trauma is a medical diagnosis first, so the controversies we see are not within the medical community per se, they’re more within the courtroom,” said Dr. Michael Baxter, a Tulsa child abuse pediatrician, assistant professor of pediatrics at University of Oklahoma in School of Community Medicine in Tulsa and medical director of the Children’s Advocacy Center.
Often, those courtroom disagreements are about “mimics,” Baxter said — diseases or accidental injuries that mimic the symptoms of Abusive Head Trauma. However, the theories of mimics often lack scientific backing, he said.
But critics say it is the shaken baby hypothesis that lacks scientific validation. Those critics point to the literature showing the force required to inflict those types of injuries has not been shown to be possible by shaking, and point to the absence in many cases of neck or other injuries that would be expected in shaking cases, as well as evidence that many of the injuries can be explained by short falls or other medical conditions.
“My opinion is injury by abusive shaking has failed validation on all fronts,” said Dr. John Galaznik, a retired medical doctor who has testified in more than 160 shaken baby cases around the country.
Galaznik said that doctors and prosecutors are likely to include shaking as a mechanism in suspected child abuse cases, rather than an impact to the head alone since shaking shows willful intent while impacts can be chalked up to falls or other accidents.
“The child abuse doctors loved it and the prosecutors loved it because by including shaking as a requisite component of the injuring mechanism, it established a crime and identified the perpetrator,” Galaznik said.
The Hammers Case
In February 2014, an Oklahoma County jury found Edmond resident Megan Hammers guilty of felony child abuse for allegedly injuring her 6-month-old son Maddox by shaking him. Maddox survived, but she was later sentenced to 18 years in prison on one count of felony child abuse.
Hammers, who was a licensed day care worker at her family’s Edmond daycare center prior to her arrest, has maintained her innocence and is currently appealing an application for post-conviction relief before the Oklahoma Court of Criminal Appeals.
The doctors who testified at Hammers’s trial said the injuries caused to her son — bleeding inside the skull (with CT scans showing both old and new bleeds), bleeding in the retinas of his eyes, healing bone fractures of differing ages in his legs and arm and a left eye that temporarily turned inward — all were indicative of abuse, and prosecutors also focused on her use of opioid prescription medication, court records show. Doctors also said it was likely that Maddox would be blind in his left eye, court records state, and that the only way the injuries could have been inflicted was by abusive shaking.
Hammers said she believes that the head and eye injuries her son suffered were from an accident, where her 4-year-old son tripped and his knees landed on her 6-month-old son’s face while her boyfriend was changing his diaper on the floor. The bone fractures, she said, may have been caused by her older son and other children playing roughly with her 6-month-old while he was in a child’s jumper toy that was secured to a doorway.
“It was typical children being children,” she told The Frontier. “And I beat myself up every day for it.”
The injuries first came to the attention of authorities after Maddox was taken to OU Children’s Hospital in Oklahoma City a couple of weeks after the older child allegedly fell on his face, court records state.
During trial, no medical experts were called to testify on behalf of Hammers, according to court records. For years, she said she fought to get medical records on her youngest son, and eventually was able to get some of those records, though not all.
Using those records and other evidence, two expert witnesses brought in by Hammers’s appeals attorney — a radiologist and a professor of medicine, physiology and biophysics at Boston University Medical Center — submitted affidavits on Hammers’s behalf stating that it appeared her youngest son suffered during his early life from a brittle bone disease known as rickets, and possibly Ehlers Danlos syndrome, a genetic disorder with a variety of medical conditions that includes greater susceptibility to bone fractures.
Because of the possible brittle bone disease and genetic disorder, the child’s fractures, the doctors stated, were likely to have been caused by the jumper seat, rather than abuse.
However, the judge reviewing the application noted that neither doctor had actually physically examined the child, and that neither provided an explanation for the brain bleed or eye injuries. The application was dismissed, though Hammers has appealed that decision.
Maddox and his older brother were sent to live with their father, and she has only had “little glimpses into their lives” through photos she sometimes receives in the mail, she said.
“I’ve been trying to get answers and I told my oldest I’m not going to stop fighting for you. The truth will get out,” Hammers said. “I’m a firm believer in my Lord, and I know God will work it out.”
Hammers, who is incarcerated at Mabel Bassett Correctional Facility in McLoud, said she feels the system was too quick to jump to conclusions about her child being abused, and that there are many others who have also been wrongfully convicted.
“The system is broken in the courtroom, it’s broken there in the hospital, it’s broken with DHS,” Hammers said. “I made some mistakes growing up, but nothing to put me here. Anybody is one freak accident in this state from being in here. And the state, they don’t look at the children they’re affecting, the families they’re affecting. They’re tearing families apart. And it’s not OK.”
The existence of Shaken Baby Syndrome as an explanation for infants who had bleeding on the brain with no external signs of trauma was first hypothesized by pediatric neurosurgeon A. Norman Guthkelch in the early 1970s. Throughout the 1970s and 1980s, pediatricians continued to publish studies building on the idea.
The diagnosis was labeled “Whiplash Shaken Baby Syndrome” early on, and was typified by a constellation of three injuries: subdural or subarachnoid hemorrhages (bleeding in the space between the brain and the fibrous protective layers between the skull and brain), cerebral edema (brain swelling) and retinal hemorrhaging (bleeding in the light-sensitive tissue on the back wall of the eye).
By the mid-1980s, pediatricians and researchers had begun to refer to the diagnosis as “Shaken Baby Syndrome” and it was diagnosable by the presence of those three distinct symptoms, commonly referred to as “the Triad.” Though some in the scientific community took issue with the hypothesis that the injuries found in shaken baby cases could be caused by shaking alone, by the mid to late 1990s, it was a widely accepted diagnosis in the medical field.
The idea, proponents of the hypothesis say, is that a caregiver may become frustrated with a baby’s crying, pick the child up under the arms by the chest and shake the child back and forth. The repeated rotational forces caused by shaking and the movement of the brain inside the skull cause “bridging veins” between the brain and its protective layers to tear and bleed, and for the jelly inside the eye to swirl and cause bleeding on the retina. The injuries to the brain then cause swelling, which can result in death.
Dr. Baxter said the Saint Francis Children’s Hospital in Tulsa sees, on average, between six and eight cases of Abusive Head Trauma per year and two to three deaths on average.
Baxter said there is little debate in the scientific community about the existence and symptoms of Abusive Head Trauma.
“There’s been multiple consensus statements done — Abusive Head Trauma is an accepted medical diagnosis,” Baxter said.
In 1993, the American Academy of Pediatrics released its first official consensus statement on Shaken Baby Syndrome. The paper, which stated physicians should search for other signs of abuse such as broken bones or bruises in possible shaken baby cases, stated that “While physical abuse has in the past been a diagnosis of exclusion, data regarding the nature and frequency of head trauma consistently support a medical presumption of child abuse when a child younger than 1 year of age has intracranial injury.”
The AAP issued a new position statement on Shaken Baby Syndrome in 2001 that repeated the diagnosis is not one of exclusion, stating that the injuries could occur with or without an impact, and adding that short falls are incapable of producing the constellation of symptoms.
Then, in 2009, the AAP issued a new paper on the diagnosis that changed the acceptable term for it from Shaken Baby Syndrome to Abusive Head Trauma, though Shaken Baby Syndrome remained a subset of Abusive Head Trauma. The reason for the change, the AAP stated, was to acknowledge that the injuries could occur through a variety of biomechanical forces.
Missing from the 2009 AAP paper was the statement that Shaken Baby/Abusive Head Trauma is a not diagnosis of exclusion, rather than one reached through a process of elimination that would require doctors look at other alternative explanations for the injuries before settling on Abusive Head Trauma. The paper also eliminated the statement that similar injuries could not be caused by short falls of less than five feet and included a recommendation that doctors look for neck injuries, rib injuries and other injuries before settling on a diagnosis of Abusive Head Trauma.
“Pediatricians also have a responsibility to consider alternative hypotheses when presented with a patient with findings suggestive of AHT,” the 2009 paper stated. “A medical diagnosis of AHT is made only after consideration of all the clinical data.”
In April 2020, the AAP issued a new policy statement and general guidance for pediatricians that said the change in terminology had been “misinterpreted by some in the legal and medical communities as an indication of some doubt in or invalidation of the diagnosis and the mechanism of shaking as a cause of injury.”
The 2020 AAP position paper acknowledged that short falls of less than 5 feet could cause injuries similar to those of Abusive Head Trauma, though it stated such events are an “extreme rarity,” and that while retinal hemorrhaging does occur from accidental injuries, they are much more prevalent in abuse cases. Citing a 2008 study, the paper states that the annual risk of death from short falls among young children is less than 1 in 1 million.
“Because short falls may be proffered in courts as a likely medical explanation for the findings commonly seen in Abusive Head Trauma, pediatric practitioners should be prepared to educate multidisciplinary colleagues on the relative improbability of serious injuries or death as a result of short falls,” the paper states.
Not all experts agree that the science behind the diagnosis is settled, and point to the evolving AAP consensus statements as evidence that the many of the claims about Shaken Baby Syndrome have yet to be verified, though numerous individuals were convicted and imprisoned based on the diagnosis.
Dr. Galaznik, a licensed pediatrician in Alabama and a skeptic of Shaken Baby/Abusive Head Trauma diagnoses, said he first became interested in the issue after serving on a jury in a child abuse murder case during the late 1990s.
Though Galaznik was not a child abuse pediatrician (he oversaw the health clinic at the University of Alabama at the time he served on the jury), he began researching the subject and eventually authored and co-authored several scientific papers challenging the Shaken Baby Hypothesis.
“I’m not denying abuse,” Galaznik said. “I believe you can kill a baby by shaking it. I just don’t think it will look like what you say it will look like, and certainly you can kill a baby by slamming its head on a brick wall or floor. So that’s not an issue. But remember, impact can be accidental or inflicted, and nothing medical or in imaging can tell you whether it’s accidental or inflicted. Only shaking would be a unique abusive mechanism.”
Galaznik said he took issue with much of the 2001 AAP statement, including the statement that the injuries could not be caused by short falls. Shortly after the 2001 statement came out, he said, Minnesota forensic pathologist Dr. John Plunkett, who was initially a proponent of Shaken Baby Syndrome but later recanted his support for the diagnosis, published a paper showing that retinal hemorrhaging was present in four of six children whose eyes were examined after suffering short falls onto their heads and where the falls were witnessed, and in one case, videotaped.
“It (the 2001 AAP statement) had made an absolute assertion that was absolutely false,” Galaznik said. “You would think they, ethically, would say we were wrong, short-distance falls can do it.”
Galaznik also pointed to earlier experiments that had difficulty in showing that shaking alone could produce the necessary rotational force to cause the injuries attributed to Shaken Baby Syndrome, such as bleeding in the retinas, as well as other studies that showed the rotational forces in some short falls exceeded those caused by shaking alone, and studies showing injuries caused by short falls could lead to the symptoms associated with Shaken Baby Syndrome.
Galaznik said there has been little or no validation of the Shaken Baby hypothesis shown in those experiments.
“This research is being done by people who are believers in shaking, and they’re not getting the results they’re expecting,” Galaznik said “The assertion that short falls are benign when they’re producing massive amounts of more rotational acceleration than abusive shaking ever could clearly makes no logical sense. So, as this was unfolding, the child abuse doctors’ dogma was not holding water.”
One 2011 study, in which Galaznik was a co-author, showed that a 7-month-old child who was placed in a Jumparoo — a toy for infants that allows them to bounce up and down — exerted more rotational force by playing in the toy than what other studies have shown could be exerted by shaking alone.
In many cases, Galaznik said, the retinal hemorrhaging found in suspected Shaken Baby cases can be explained by brain swelling, rather than as a primary injury caused by shaking. In a 2018 study of witnessed shortfalls where the child landed on the back of their heads, it was discovered that, of the eight cases reported, six had subdural hematomas and all eight suffered retinal hemorrhages.
Galaznik said he took issue with the 2009 re-labeling the diagnosis as “Abusive Head Trauma,” saying it was a way to avoid stating a specific mechanism of injury that could be challenged in court.
“Abusive head Trauma is just the new term for Shaken Baby Syndrome,” Galaznik said. “In my opinion, that is unethical. That is a contrived, slick, clever working designed to be misleading.”
Andrea Miller, legal director for the Oklahoma Innocence Project, said there are disagreements about the science behind Abusive Head Trauma and Shaken Baby Syndrome, mostly between pediatricians and forensic pathologists who perform the autopsies.
“What’s happened is there is a divide between pathologists and pediatricians,” Miller said. “Part of that I think, what emergency room doctors and emergency room pediatricians see in imaging looks very different at autopsy.”
Miller said child abuse pediatricians who testify in Shaken Baby cases often make claims for which there is no scientific backing.
“You often hear in the prosecution of these cases that a head injury like this could only be caused in a car accident going 70 miles per hour or a drop from a 20-story building — all of which is unprovable because you can’t subject a 2-month-old to any of those circumstances,” Miller said.
Katie Koljack, director of the Tulsa County District Attorney’s Office’s Crimes Against Children team, said she believes there is no credible scientific study that refutes the abusive shaking diagnosis, and that many of the expert witnesses who testify against it are motivated by financial gain.
“The literature I’ve seen those experts rely on has either been completely disproven or the authors have different motives,” Koljack said. “What I’ve seen at least, of these experts coming out and signing literature saying it’s kind of a debunked science is not valid. It is an accepted diagnosis in science and the medical community. That is not a question. A lot of times experts try and act like there’s so much controversy.
“I think the controversy lies in the courtroom strategy, not the medicine,” she said.
Baxter said he looks at the whole picture — there may be no retinal hemorrhages in an Abusive Head Trauma patient, but there could be bruising or rib fractures and subdural hemorrhaging that indicates the child was abused.
Baxter said that while he has had cases where the injuries appeared initially to show child abuse and later tests and investigation confirmed it was not, he has never had to retract a final diagnosis of Abusive Head Trauma.
A critical issue that often arises in Shaken Baby convictions is the timing of the injuries, Miller said. Often, child abuse experts testifying for the prosecution have stated that the child would have become unconscious immediately after suffering the injuries, she said.
And that is important for the prosecution, she said, because it allows investigators to state definitively that the last person alone with the child was the likely culprit of the abuse.
“In the cases where it is likely abuse, the medical personnel, particularly pediatric abuse experts, don’t acknowledge the potential for that,” Miller said. “So the person who is going to get arrested is the person who the child is in the care of, even if somebody had just dropped the child off within an hour or two before they lost consciousness, because the typical testimony is a child sustaining that kind of injury would have lost consciousness immediately, so it must have been that person.”
However, Miller said, there are numerous examples of individuals who have suffered internal head injuries who have a “lucid interval” period lasting hours or a day or more, where they seem to be functioning relatively normally before collapsing.
“It’s something a lot of the people who promote the Shaken Baby Syndrome hypothesis deny exists,” Miller said. “But we know it exists. There’s been cases of athletes who have sustained head injuries and remained conscious for 12 hours, sometimes more than that, before losing consciousness, where it was obvious when the injury was caused.”
Baxter said he does not use the term “lucid interval” since it implies that the person is fully aware and not otherwise showing symptoms of a head injury. Baxter also said the term has been co-opted by those who aim to cast doubt on the diagnosis of Abusive Head Trauma.
“Lucid shouldn’t imply you are acting completely normal and just like yourself,” Baxter said. “Most of the histories I get, no one ever says the kid was completely acting 100 percent normal.”
At that point, Baxter said, the pediatrician must dig into the details given by the caregiver — when was the child last acting normal? Who was the person who last cared for the child?
Medical imaging can also reveal bleeding on the brain, and since new and older blood have distinct appearances in CT scans, a time frame of when the injuries occurred can be narrowed down.
Short falls are one of the more common medical histories provided to him by caregivers who have a child showing signs of Abusive Head Trauma, Baxter said. Usually, the injuries are relatively minor head injuries — some scalp swelling, small linear skull fractures and in some cases a small subdural bleed under a skull fracture.
Birth trauma is another “mimic” Baxter said he is confronted with. Though a few small retinal hemorrhages and some asymptomatic subdural hemorrhaging can occur during birth, those issues typically resolve in a matter of weeks, Baxter said.
A ‘ticking time bomb’
When Tavarreon Dickerson’s jury found him guilty of first-degree child abuse murder in the death of his 6-week-old daughter Raylie’s death, there was no closure, said Jenna Smith. The feeling was just the opposite, she said.
“I hate that word, closure, because I don’t think you can get closure on something like this. For myself, I don’t feel like I can grieve because it’s not over. I feel like I’m still fighting the fight to get the truth out,” Smith said. “This is not what I wanted. There is no justice with what they did to him. He’s not the reason why she’s gone.”
Following Raylie Dickerson’s death, Dr. Andrea Wiens of the Oklahoma State Medical Examiner’s Office performed an autopsy.
Though there were no visible bruises or other external signs of trauma on Raylee, Wiens uncovered two ¾ by ½-inch bruises under her scalp on the left side of her head, one on the front above her forehead and one at the back behind her ear. The autopsy also showed a massive bleeding inside her skull, accompanied by brain swelling. The medical examiner’s office also found that the optic nerve of Raylie’s left eye had been injured.
The exam also found two healing rib fractures.
Wiens would later testify that she noticed something odd at the top Raylie’s brainstem — an arteriovenous malformation or AVM, a tangle of abnormal veins and arteries that form direct connections to each other with no capillaries to slow down the blood flow from the arteries to the veins. Because of the high flow of blood, AVMs can spontaneously rupture, and if an AVM ruptures in the brain, it is highly likely to result in death. But the section Wiens examined showed no signs that it had ruptured, she later testified.
Wiens did not note the presence of it in her medical examiner’s report.
The cause of death was listed as multiple blunt impact injuries, with other significant conditions being listed as unsafe sleep environment (co-sleeping with adult on sofa), and the manner of death was listed as homicide. Though the medical examiner ruled that the death was caused by blunt-impact injuries, during trial the state would call an expert witness, Dr. Baxter, who said the bleeding in her skull was caused by shaking.
“If you are saying I shook her, why weren’t there bruises or broken bones?” Dickerson said. “If you’re saying I lost it, there would be some type of bruises, there would be handprints, there would be something. I’m not Houdini. I can’t make things happen at the snap of the fingers.”
Before trial, an expert witness, Dr. Zhongxue Hua, a board certified neuropathologist and assistant clinical professor at the Albert Einstein College of Medicine in New York, had received the slides of samples taken from Raylie’s brain and noticed the AVM, and the fact that it was not mentioned in the medical examiner’s report.
He told Tavarreon’s lead trial attorney Keith McArtor about the presence of the AVM, that AVMs tend to spontaneously rupture, and that, given its location in Raylie’s brain, had it spontaneously ruptured it would almost certainly have caused her death, though the slide he was provided did not show evidence of a rupture. He later called the AVM a “ticking time bomb.”
“It’s not what we were expecting. It solidified in both of our minds that we were representing an actually innocent man,” one of Tavarreon’s attorneys, Amanda Mims, later testified during his evidentiary hearing. “If we were able to get slide evidence of an actual rupture, it would be conclusive evidence of actual innocence.”
Faced with a decision of whether to request further samples from Raylie’s brain that might have shown that the AVM ruptured, McArtor decided not to. He feared, he said, that the new samples would also not show a rupture and the prosecution would use that against Tavarreon at trial.
It was a decision he said he later regretted.
“I was concerned that if we did that, Dr. Hua would find that the AVM had not ruptured. And if we had found that, I didn’t think I would have a defense other than ‘he didn’t do it,’” McArtor later testified. “My concern was finding out there was no rupture in the malformation.”
Dickerson said he was never told about the decision not to seek deeper recuts of the AVM.
“Obviously, I wish they would have,” Dickerson said. “I put it in their hands to make the best decision. Had I known what I know now and they would have asked me, I would have asked them to look further.”
After seven hours of deliberation, a Tulsa County jury reached its verdict — Tavarreon was guilty of first-degree child abuse murder.
He was sentenced to life in prison.
“They were exhausted,” McArtor would later say of the jury. “They were not a happy group of people at all. Grim, I would say.”
After the verdict, one of the jurors said something to Tavarreon as he was taken away by deputies, McArtor later testified.
“The gentleman said ‘I’m sorry,’” McArtor said.
In early 2018, Dickerson sought post-conviction relief based on ineffective assistance of counsel.
His attorney for his appeal, Oklahoma Indigent Defense System attorney Maria Kolar, eventually obtained recuts of the samples taken by the Medical Examiner from Raylie’s brain near where the vascular malformation was discovered. The recuts of the tissue were deeper than what had been presented at trial, and the goal was to discover whether the vascular malformation had ruptured.
To examine the evidence, Kolar brought in Dr. Mark Shuman, associate medical examiner at the Miami-Dade County Medical Examiner’s Office in Florida and a board certified anatomical, clinical and forensic pathologist.
As Shuman looked at the slides, it became apparent that a second malformation of blood vessels was present in Raylie’s brain, possibly connected or related in some way to the first one that was discovered prior to trial.
And then, as Shuman delved deeper into the slides of Raylie’s midbrain, he found what he was looking for — one of the slides showed that the second vascular malformation had ruptured, causing blood to leak into space between Raylie’s brain and the protective lining around it.
“I cried,” said Jenna, who remains convinced of Tavarreon’s innocence. “I felt like for four years I’ve been looking for an answer and nobody could give me one. I felt like there was a weight that had been sitting on me for all these years.”
In 2019, the Oklahoma Court of Criminal Appeals ordered an evidentiary hearing in Tulsa County on Tavarreon’s ineffective assistance of counsel claim.
The State Medical Examiner’s Office refused to review the case and provide testimony when asked to do so by the district attorney’s office, saying it was a “contentious case” that Wiens would have to testify at. At that point, Wiens had left Oklahoma and worked at the Maricopa County, Ariz., medical examiner’s office.
However, Shuman provided testimony for Dickerson, saying that the new slides showed conclusive evidence that the vascular malformation in Raylie’s brain had ruptured and caused her death, and that he had consulted with five neuropathologists who concluded the same thing.
“A vascular malformation such as this, if it had ruptured,” Shuman testified, “would have resulted in the death of Raylee and all of the internal cranial findings listed in the autopsy report and identified in the photographs.”
However, Tulsa County Judge Kelly Greenough, who presided over the hearing, issued a judgement that mirrored the prosecution’s arguments — Shuman’s testimony did not hold the weight that a certified neuropathologist’s would have, Dickerson’s attorney’s had not sought further recuts as a legitimate trial strategy, and that his trial counsel was not ineffective by failing to do so.
The case is now before the Oklahoma Court of Criminal Appeals for a decision on whether to grant Tavarreon a new trial.
Tulsa County District Attorney Steve Kunzweiler said he remains convinced that Dickerson abused Raylie and caused her death. The healing fractured ribs, the bruises under her scalp, all point to ongoing abuse, he said.
“There’s no doubt the kid had subdural hemorrhaging. The kid also had facial injuries. That seems to be getting glossed over,” Kunzweiler said. “It’s not like the kid had a brain aneurysm and died. There was a lot of other evidence that law enforcement and medical personnel were looking at that was consistent with abusive head trauma or shaken baby syndrome or whatever.”
The decision by Dickerson’s attorneys was also a legitimate trial strategy, and not one that would be negligent, Kunzweiler said.
“The cases that are the most frustrating for me as a prosecutor are the ones where I feel I’ve done everything possible to get this in front of a jury,” Kunzweiler said. “The one thing I cannot account for is an attorney falling on their sword after the fact and claiming they were incompetent in the representation of their client. Those are the ones that are exceptionally frustrating for prosecutors.”
Dickerson said he thinks the case was more about getting a conviction, rather than getting to the bottom of what happened to his daughter.
“There’s no justice in this case. Everybody’s hurting,” Dickerson said. “My child is gone. There’s no justice. I wish they would search more for the truth rather than getting a conviction.”
The legal system
When suspected Shaken Baby cases are discovered, it usually brings out a “all-hands-on-deck” response from law enforcement, prosecutors, social workers and medical professionals, Kunzweiler said.
When the child arrives at the hospital and doctors see the potential signs of abuse, a process is set in motion to get to the bottom of what happened. First, the parents or caregivers are interviewed by medical professionals to find out how the injuries might have occurred.
Delays in finding out what happened and how to treat it can be devastating for the victim, Kunzweiler said.
“Most of these children, it’s rare they’re not going to have some kind of long-term injury. A lot of them, the cases that I’ve handled, have profound developmental delays,” he said.
It is rare in abuse cases that someone will admit to abusing the child.
“Sometimes, you don’t ever get an admission,” Kunzweiler said. “The baby’s not going to be telling us what happened, but you’ve got a traumatically injured baby and no one can provide a plausible explanation.”
When law enforcement is called in to investigate, they look at the totality of the situation, he said — what are the child’s injuries and can they be explained by the caregiver’s story of what happened? What is the living and family situation and history? What do the medical experts say?
“Can you have a high-impact injury from falling off the bed? So, law enforcement is going to be looking at heights and measurements and those kinds of things, and then you talk with your medical experts like child abuse doctors who will from their training and experience, would you expect to see this type of injury as described by the caretaker?” Kunzweiler said. “In these cases, you’re getting experts who are kind of filling in an explanation for what these injuries are, how they come into existence. Not necessarily pointing the finger and saying this person did that crime, but you take what the medical expert would know from their experience.”
And if there is a history of abuse or conflicting stories offered about what happened, those can be important red flags of abuse being the reason for the injuries, said Katie Koljack, of the Tulsa County District Attorney’s Office crimes against children office.
“It’s so important in our cases to be able to tell the jury this is a pattern,” Koljack said. “This isn’t just a freak accident. There’s been instances leading up to this in the past. For us as prosecutors, it’s important to be able to give the jury that entire picture of the evolution or escalation or pattern of abuse that child had been suffering before they finally succumbed to whatever that person was doing.”
The nature of these cases makes law enforcement and prosecutors heavily reliant on what the experts say about the injuries, Kunzweiler said.
“We’re very reliant on those doctors, and what they do on a day-to-day basis, to explain how the injury occurred or how the child came to be where they were at,” he said. “We’ve had some cases where we had doctors who, the initial thought was ‘this generally can’t happen to a baby.’ And as you start to put the pieces together, you realize ‘yeah, as a matter of fact it happened just as that guardian was able to describe it.’”
Even with the assistance of expert testimony in Abusive Head Traumacases, it is often to pin down the exact mechanism that caused the injury, Koljack said.
“A lot of times in these cases, you can’t always say exactly what happened,” she said. “I think a lot of times people want to hear exactly what happened. What was it? Was it a shake? Was it a throw? Was it a slam? Was it a kick? Was it a punch? Well, the baby can’t tell us what it was and certainly the person who did it isn’t offering up what they did. But what we do know is this was an inflicted injury of some type because one: the baby can’t do it to itself, and two: there’s no other medical explanation for this severe of an injury.”
For defense attorneys, Miller, of the Oklahoma Innocence Project, said it would be very difficult to offer an effective defense in a shaken baby case without the testimony of experts, though that often occurs.
“These cases are incredibly expert-driven,” she said. “You have an injured or dead child and somebody needs to be held responsible. You hear a doctor taking the stand who says this is the area I’ve practiced in for 30 or 40 years and this is the only way this child could have sustained these injuries, especially in a case where the defense attorney hasn’t bothered to do the homework the defense counsel needs to do to be able to challenge that kind of testimony, then the jury is really not left with a whole lot of choice.”
The Oklahoma Innocence has taken up multiple shaken baby case appeals in recent years, said Miller, who has represented clients in about 15 such cases, but that there have been fewer new cases filed than in the 1990s and mid-2000s.
“We have several cases that either fall into the shaken baby syndrome category or shaken impact syndrome, which was kind of the shaken baby 2.0, when they realized that just shaking alone couldn’t create the types of injuries they’ve been looking at,” Miller said. “Then they built in the potential of there being an impact, whether against a floor or a wall.”
Until recently, there’s been little movement on widely litigating and appealing many of the earlier shaken baby convictions, mostly because of incomplete case files, which makes it difficult for a medical expert to fully look into the case, Miller said.
“Defense attorneys didn’t know they needed to be questioning what was being presented as science,” Miller said. “So they often didn’t get the medical examiner’s file, they often didn’t ask for tissue samples that could be evaluated by independent experts, they weren’t getting medical records for the baby and for, if it was a biological parent, the mother’s prenatal stuff, which figures into it. So rarely do we get a case where we have all the stuff we need to have an expert look at it.”
Even if all the records are present, Miller said, it can often be challenging to find doctors who, though they may believe there are problems with a Shaken Baby Syndrome diagnosis, are publicly willing to say so.
“There is so much pressure on those doctors not to assist in Shaken Baby Syndrome cases, they are basically called all sorts of names like non-mainstream medical people,” Miller said. “So the doctors are few and far between.”
Shaun Hittle, a private investigator in Oklahoma who has worked on several suspected cases of Abusive Head Trauma over the years, said he believes there have been dozens of wrongful convictions in Oklahoma based on Shaken Baby science.
Hittle said he compiled a database of convictions in the state based on Shaken Baby testimony in hopes that national innocence organizations will help address Shaken Baby convictions on a larger scale.
“They are still diagnosing children who present with the triad symptoms with Shaken Baby Syndrome. There are current court cases like that going on,” Hittle said. “It appears in Oklahoma, the doctors have not caught up with the science.”
There have been several Shaken Baby Cases nationwide that have been overturned on appeal, including at least five cases in Oklahoma and at least one death penalty case in Texas, Miller said.
However, once convicted, mounting a successful appeal in a shaken baby case is no easy task, Miller said.
“Between the complexity, the amount of money it costs and just the demand on the folks who are available, it’s long, it’s time consuming, it’s expensive, and it’s complicated,” she said. “It’s overwhelming because it involves such complex medical issues and most lawyers just don’t have that kind of background.”
Any case involving the death of a child is a highly emotional affair, something that both prosecutors and defense attorneys say is difficult to overcome.
“It’s laden with the potential for emotion,” Kunzweiler said. When you make a decision to file a case or stand in front of a jury you have every confidence that this is a case that a judge or jury needs to make a decision on.
“Our job is to see justice prevails, and we cannot capitalize on the emotions of the jurors.”
During Tavarreon Dickerson’s evidentiary hearing, his trial attorney, McArtor, testified about the challenges of overcoming the emotions caused by the death of a child in a jury trial. Often, he said, the defense needs to show more than “reasonable doubt.”
“In any cases where there are children that are either molested, abused or killed, specifically killed, as we say sometimes, the very allegations can convict you,” McArtor said. “And that’s definitely one of these cases. We trust jurors to hold the state to the burden of proof beyond a reasonable doubt, but I think emotionally it is difficult for human beings not to weigh the scales of justice a little bit differently in favor of the child. I think I’ve seen that in my career, both as a prosecutor and defense attorney. Especially when it’s a child of this age.”
Ultimately, Dr. Baxter said, while there may be disagreement at trial about what caused a child’s injuries, the science underpinning the diagnosis is sound, and while evidence challenging it in individual cases may be compelling, it must meet a rigorous scientific standard before being accepted.
“I think debate is good and if someone can bring up a potential mimic, or anything like that, if you can come with evidence, I’m always going to listen,” Baxter said, “because my goal in medicine is to always make sure I have the right diagnosis.”
Galaznik, on the other hand, said that while some doctors have reversed their support of a Shaken Baby diagnosis, others have only held onto it more tightly despite contradictory or a dearth of evidence for its existence.
“To come out and acknowledge that the abusive shaking hypothesis is not valid as the way it’s ever been formulated, would open Pandora’s box to overturn every conviction where it was asserted that the symptoms would be immediate and the last man standing is guilty,” Galaznik said. “It would overturn every conviction where the retinal hemorrhages were so severe that it could only be explained by shaking. And it would overturn every conviction where the assertion was made that the findings in this case are not explained by short-distance falls.
“I think the ego strength to stand up and confess that you may have been so wrong for so long and done such horrific damage, is I think beyond most people’s human capacity,” he said. “I’m not sure if mine would be any better.”