ISSUE SEVEN
MR. YURKO WAS DENIED HIS RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL WHEN HIS TRIAL ATTORNEY
FAILED TO USE AVAILABLE MEDICAL EVIDENCE AND
THEORIES TO DEMONSTRATE THE FALLACIES OF THE
STATE EXPERT WITNESSES' OPINIONS.
At Mr. Yurko's
trial the State presented several medical expert witnesses. The
substance of said witnesses' testimony as it related to SBS was often incorrect
and
misleading to the jury. Numerous medical fallacies were presented to the jury
by
expert witnesses as medical fact. Said fallacies included: (1) the rib fractures
apparent
on Baby Alan were absolutely indicative of an abusive situation; (2) retinal
hemorrhages occur only as a result of SBS; (3) a child suffering from an ultimately
fatal head injury will not experience any lucid interval; (4) Diffuse Axonal
Injury is
hemorrhaging in the axons. The medical expert witnesses were not impeached with
generally accepted medical theories and literature that was available. Said
testimony
of the State's witnesses should have been challenged by defense counsel on cross
examination but was not. The testimony of the State's witnesses was improper
and
misleading in the following respects:
1. FALLACY #1- The Rib Fractures Apparent On Baby Alan Were
Indicative of an Abusive Situation.
In the instant
case the prosecution made frequent references to the rib injuries
that were apparent on Baby Alan. Although it was testified that the rib injuries
were
not diagnostic of SBS, the State's expert witnesses did testify that the ribs
indicated a
history of abuse of Baby Alan. According to Dr. Seibel, the injuries were indicative
of
an abusive situation. Dr. Seibel further testified that the injuries to the
ribs likely came
from a vigorous squeezing-type of force. (T.157). Dr. Seibel testified that
rib
fractures are not described in the medical literature as ever being the result
of birth
trauma. (T.158). Instead, he felt that the rib fractures were the result of
abuse.
(T.166). As such, the State submitted the theory that Baby Alan suffered from
Battered Child Syndrome. (T.51).
Dr. Seibel's testimony
relating to the rib fractures was not accurate and in fact
could have been impeached with generally accepted medical literature. Such literature
includes a medical study of 2080 children seen at a pediatric trauma center
that found
that among 33 children with rib fractures, the injuries were accompanied by
severe
internal thoracic injuries in 85% of the cases. 9 Accordingly an absence of
internal
injuries would way heavily in favor of spontaneous fractures and against abuse.
Impeachment of Dr. Seibel with such a study would have served to substantially
refute his theory that Baby Alan suffered from Battered Child Syndrome.
Additionally,
there is a general consensus in the medical community that
spontaneous fractures can occur where there is: (1) Brittle Bone Disease (BBD);
and,
(2) Scurvy with imperfect connective tissue formation in fetal or infant skeletal
tissue;
(3) Osteomyalcia; (4) traumatic birth situations; (5) during cardiopulmonary
resuscitation; (6) rickets; (7) vitamin D deficiencies; and, (8) osteogenesis
imperfecta.
While defense counsel did address the subject of BBD, he failed to realize and
address the fact that the fractures could be spontaneous as a result of other
conditions
nor related to brittle bone disease. Such information also would have served
to
discredit Dr. Seibel's testimony that the rib fractures only could have occurred
as a
result of abuse. This is especially so when one considers that prior to his
admission to
the hospital there was no prior evidence of abuse to or injury of Baby Alan.
During
his frequent pediatric checkups there was never any indication of injury to
Baby
Alan. Surely such injuries would have been noted by a pediatrician performing
frequent examinations on an infant. However, defense counsel failed to note
the
absence of any such previous findings.
While the rib
fractures in and of themselves did not serve to establish SBS, they
certainly were used by the prosecution to prejudice the jury against Mr. Yurko.
Although there was no evidence whatsoever to tie the rib injuries to Mr. Yurko,
the
clear implication was that the fractures were caused by abuse and that Mr. Yurko
was the abuser. As such, it would be easy for the jury to assume that Mr. Yurko
also
must have shaken Baby Alan, as was proposed by the prosecution. In fact, juror
Edward Russell acknowledged in his questionnaire that he was partially convinced
of
Mr. Yurko's guilt because of the "evidence of prior injury." (See
Exhibit D, Juror
Edward Russell's answer to question #8). Therefore, it was imperative that the
rib
injury testimony by the State's expert witnesses be addressed and sufficiently
discredited. Unfortunately, though, trial counsel dropped the ball in this regard
and
the prejudicial testimony was allowed to stand significantly unchallenged.
2. FALLACY #2- Retinal Hemorrhages Occur Only as a Result of SBS.
Dr. Gore testified at trial that he did observe a retinal hemorrhage in Baby
Alan. Dr. Gore
stated that the retinal hemorrhage was only present in Baby Alan's
right eye. (T.272). The retinal hemorrhage was minor in that there was not a
lot of
blood in the back of the eye. (T.272). According to Dr. Gore, retinal hemorrhaging
is
present approximately 25% of the time in SBS cases. (T.272).
Perhaps the most
dangerous and abused belief in cases like the instant one is
that retinal hemorrhaging can only be caused by shaking a baby. Retinal hemorrhage
may be caused by ligating the central retinal vein or its tributaries, suddenly
increasing
intracranial venous pressure. 10 11 Retinoschisis, the detachment of the retina
from
the supporting structures, is the result of breakthrough bleeding and venuous
stasis,
not violent shaking.12 13 In reality, any sudden increase in intracranial pressure
may
cause a retinal hemorrhage.14 15 16 17 In fact, opthalmologic textbooks list
hundreds
of causes of retinal hemorrhage including the administration of DTP, Hep.B and
MMR vaccines. Furthermore, retinal and optic nerve sheath hemorrhages associated
with a ruptured vascular malformation are due to an increase in venous pressure,
not
extension of blood along extravascular spaces. 18 19 20 21 Simply stated, retinal
hemorrhage may occur whenever intracranial pressure exceeds venous obstruction.
Retinal hemorrhages are not necessarily diagnostic of a shaken infant.
In the instant
case, the retinal hemorrhage was just one more element for the
prosecution to rely on to demonstrate that Baby Alan's death was the result
of SBS.
If the retinal hemorrhage was not relevant, the prosecution never would have
introduced evidence of said hemorrhage. As such, it was important for trial
counsel to
discount the State's evidence regarding the retinal hemorrhaging and demonstrate
that the hemorrhage was not necessarily diagnostic of SBS. Trial counsel, though,
did
not attack Dr. Gore's testimony regarding the retinal hemorrhage. As such, another
building block of the State's case was left unassailed. Trial counsel should
have
discredited the State's alleged evidence of SBS at every point possible. To
fail to do
so left the jury with no conclusion but that Mr. Yurko was guilty. Consequently,
Mr.
Yurko was severely prejudiced by his attorney's failure to discredit Dr. Gore's
testimony regarding the retinal hemorrhages.
3. FALLACY #3- A Child Suffering From An Ultimately Fatal Head Injury
Will Not Experience Any Lucid Interval.
At least some
children with head injuries have a documented lucid interval prior
to the development of symptoms, including those who subsequently die.22 23 One
study documents 12 children (out of 18) with lucid intervals followed by
unconsciousness and death, in which the fatal brain injury was due to a short-distance
fall (one of which was videotaped).24
All of the experimental
data regarding lucid intervals and cerebral trauma are on
mature adult human, primate and other animal brains. Adult data, which uses
diffuse
axonal injury to explain prolonged unconsciousness in head-injury victims has
been
applied to child injuries with no scientific basis or experimentation on children
or
infant primates to justify the extrapolation.25 Despite a lack of evidence that
this data
can be scientifically applied to children, and documented evidence of children
having
lucid intervals up to 72 hours post head injury, experts continue to testify
that shaken
infants never have a lucid interval.26
According to Dr. Seibel at trial, Baby Alan would have exhibited severe
symptoms within
a very short period of receiving his injuries. (T.166). The doctor
opined that Baby Alan would have been unable to do much of anything after
receiving his injuries because of the bleeding in and around the brain. (T.167).
However, admission Ct scans showed a tiny subdural hemorrhage which is common
in infants and usually clears without any clinical symptoms. It was not until
75 hours
later, while in the hospital, that Baby Alan's brain massively hemorrhaged.
27
Effectively, Dr. Seibel testified that Baby Alan would not have experienced
a lucid
interval after the alleged vigorous shaking of Baby Alan. As such, Dr. Seibel's
testimony could have been shown to be untrustworthy. There have been cases where
an infant has experienced lucid intervals after fatal head injuries, and, thus,
Dr.
Seibel's testimony regarding a lucid interval was incorrect.
The issue of the
lucid interval is pivotal in the instant case as the timing of the
injury was the evidence which indicated (incorrectly) to the jury that Mr. Yurko
was
the only person who could have caused Baby Alan's injuries. Had Doctors Seibel
and Gore testified correctly, they would have had to admit that lucid intervals
do
occur up to 72 hours or more after head injury. Moreover, it appears that both
Doctors Seibel and Gore timed the injury from the autopsy and not admission
data
which showed only a small subdural hemorrhage. Timing from the admission would
have been proper as new bleeding occurred spontaneously in the hospital. Therefore,
the State could not have credibly isolated Mr. Yurko as the only possible perpetrator
of the alleged crime. This fact would have warranted an acquittal of Mr. Yurko.
It is additionally
important to note that the State's witnesses should have been
impeached whenever possible. Mr. Yurko's case was a credibility contest between
the State's experts and Dr. Douglas Shanklin. As such, this was just one more
chance to discredit the State's expert witnesses that slipped by. Mr. Yurko
should
have had the benefit of effective counsel who had the necessary medical information
to impeach the State's expert witnesses. Mr. Yurko did not receive such
representation and the State's medical witnesses were left unimpeached. As such,
the
jury was free to accept the State's witnesses as credible and knowledgeable.
The
potential effect of trial counsel's ineffectiveness is that the jury was left
with no
reason but to believe the State's witnesses and their opinions regarding Baby
Alan's
death.
4. FALLACY #4- Diffuse Axonal Injury Is Not Hemorrhaging In
The Axons.
While testifying,
Dr. Gore defined Diffuse Axonal Injury (DAI) as "VERY
MINUTE PINPOINT HEMORRHAGES IN AXONS." (T.226). Dr. Gore's
definition of DAI was completely inaccurate. DAI is simply the damage of the
axon
of brain cells in widespread fashion. Axons and brain cells do not have blood
product
and thus cannot hemorrhage. The entire brain and spinal cord is blood-free and
protected from blood by the blood brain barrier. When an axon is damaged it's
body
folds up on itself and the neuron swells. There are no hemorrhages.
Dr. Gore's definition
of DAI was, thus, clearly wrong. As has been repeatedly
pointed out, the State expert witnesses should have been impeached whenever
possible. Dr. Gore's inaccurate definition of DAI was just one more opportunity
for
impeachment of Dr. Gore. Dr. Gore's testimony was riddled with problems and
should have been attacked. With the abundance of impeachment material available
(including the incorrect DAI definition) the reliability of Dr. Gore's testimony
could
have been demolished. Once again, though, Dr. Gore's testimony was not adequately
challenged and the jury was left with the impression that they had no reason
to
disbelieve Gore.
ARGUMENT
The Fallacious Expert Testimony Should Have Been Challenged And
Was Not. Counsel Was Ineffective For Failing to Properly Impeach
The Misleading Medical Testimony, And, Said Failure To Impeach
The State's Witnesses Substantially Prejudiced Mr. Yurko's Right
To A Fair Trial.
The State's expert
witnesses testified in a misleading and improper way at trial
in the following manners: (1) that the rib fractures apparent on Baby Alan were
only
indicative of an abusive situation; (2) that retinal hemorrhages occur only
as a result
of SBS; (3) that a child suffering from an ultimately fatal head injury will
not
experience any lucid interval; (4) that Diffuse Axonal Injury is hemorrhaging
in the
axons. The State's expert witness testimony in the above respects was clearly
improper, fallacious, and misleading to the jury. To allow such testimony to
go
unchallenged was unacceptable and inexcusable. Once again, Mr. Yurko's trial
was a
credibility contest between Mr. Yurko's expert witness, Dr. Shanklin, and the
State's numerous expert medical witnesses. The State witnesses' testimony should
have been impeached and shown to be misleading. It was imperative that the State's
witnesses be impeached and discredited at every possible juncture. Counsel's
failure
to do so clearly falls below an objective standard of reasonableness and thus
satisfies
the ineffectiveness prong of Strickland v. Washington, 466 U.S. 668 (1984).
Additionally,
the prejudice to Mr. Yurko is evident. As has already been
addressed in this memorandum, the instant case was one that had to be decided
on
the credibility of the expert witnesses. The fact that Mr. Yurko was convicted
in the
instant case demonstrates that the jury found the State's expert witnesses to
be more
credible than Mr. Yurko's expert witness, Dr. Douglas Shanklin. Had the State's
expert witnesses' testimony been impeached with the above delineated fallacious
testimony, the balance would have tipped in favor of Mr. Yurko's expert witness,
Dr. Shanklin. As such, there is a substantial likelihood that the outcome of
Mr.
Yurko's trial would have been different had defense counsel provided effective
representation in the form of a thorough cross-examination of Dr. Gore, Dr.
Seibel,
and Dr. Guedes. This is especially so when one considers that the State repeatedly
argued in closing that Dr. Shanklin was the only expert witness who did
not believe that
Baby Alan's death was due to SBS. 28 29 30 31 As such, Mr. Yurko
has demonstrated a facially sufficient allegation of ineffectiveness of his
counsel and
resulting prejudice, as is required by Strickland, and, his Judgment and Sentence
should be vacated and a new trial should be granted.
ISSUE EIGHT
SUBSEQUENT TO HIS JUDGMENT AND SENTENCE MR.
YURKO OBTAINED NEWLY DISCOVERED EVIDENCE IN
THAT SCIENTIFIC DISCOVERIES THAT DID NOT SOLIDLY
MANIFEST THEMSELVES IN THE REALM OF FORENSIC
NEUROPATHOLOGY AT THE TIME OF TRIAL HAVE NOW
BEEN GENERALLY ACCEPTED BY THE FORENSIC
COMMUNITY; SAID EVIDENCE IS DIRECTLY CONTRARY TO
TESTIMONY AND EVIDENCE PRESENTED BY THE STATE AND
ITS EXPERT WITNESSES AT TRIAL RELATING TO DIFFUSE
AXONAL INJURY.
Forensic science
is constantly evolving with the advent of new technologies and
advanced studies. At the time of Mr. Yurko's trial, the general consensus and
trend
of opinion in the medical/forensic community posited that the presence of Diffuse
Axonal Injury (DAI) was simply a widespread pattern of injury to the axons of
brain
cells which was best seen microscopically on brain tissue sample slides.
At trial the State's
expert witnesses testified to the presence of axonal injury in
Baby Alan's brain. Said DAI was never indicated in Dr. Gore's autopsy report.
The
alleged DAI was offered by the State and its experts as undeniable evidence
of Mr.
Yurko's guilt and as the premier finding that Baby Alan's injuries were of
traumatic/non-accidental etiology. Dr. Gary Pearl and the State's other medical
witnesses repeatedly testified to the effect that the DAI was indicative of
physical
trauma inflicted on Baby Alan. And, during closing arguments, Prosecutor Wilkinson
argued to the jury that DAI was the key evidence to demonstrate that Mr. Yurko
was
responsible for Baby Alan's death when she stated:
"EVIDENCE WILL PROVE THIS CASE TO YOU BEYOND A
REASONABLE DOUBT. [Baby Alan's] BODY WILL PROVE THIS
CASE TO YOU BEYOND A REASONABLE DOUBT. DIFFUSE
AXONAL INJURY, IT'S BEEN UNDISPUTED, WOULD PUT A
CHILD UNCONSCIOUS IMMEDIATELY. 9:30 IN THE MORNING
THIS CHILD IS FINE AND AT 11:30 IN THE MORNING THIS CHILD
HAS TO BE RESUSCITATED JUST TO BE KEPT ALIVE FOR
SEVERAL DAYS ON MACHINES.
"WHEN YOU LOOK AT THE TIMING OF THIS CASE, YES,
SUBDURAL HEMORRHAGES HAVE A WIDER TIME FRAME.
BUT YOU HAVE TO LOOK AT THE DIFFUSE AXONAL
INJURY. LOOK AT THIS CHILD IN THE WHOLE. THIS WAS AN
ABUSED CHILD. THIS CHILD HAS SEVERAL DIFFERENT
INJURIES THAT OCCURRED AT SEVERAL DIFFERENT TIMES.
"AND THERE'S ONE INJURY THAT WE CAN PUT ONE
PERSON WITH HIM AND ONE PERSON ALONE AND LO AND
BEHOLD, THAT'S THE PERSON WHO'S BEEN TAKING CARE OF
HIM FOR THE LAST TEN WEEKS, BECAUSE YOU HEARD THE
TESTIMONY THAT MS. REAM IS THE ONE WHO WENT OUT
TO WORK AND THE DEFENDANT WAS A POET, A PIANIST,
A PAINTER." (T.542-543, emphasis added).
Prosecutor Wilkinson
thus argued that the DAI was irrefutable proof of Mr. Yurko's
guilt.
It is important
to note that the instant case consisted entirely of circumstantial
evidence. As a result, the trial was necessarily a battle of the experts where
credibility
of the experts was key. In addition to the credibility of the experts themselves,
the
reliability of the science upon which the experts based their testimony was
also of
critical importance. Thus, one can easily imagine that the jury was deeply swayed
by
the State experts' DAI testimony and the prosecutor's arguments that DAI was
the
proverbial smoking gun that unquestionably defined Mr. Yurko as Baby Alan's
killer.
Subsequent to
Mr. Yurko's conviction, though, the worldwide forensic
community has concluded that attributing DAI to traumatic or mechanical injury
solely is in fact erroneous. (See Exhibit F). The forensic field has actually
deemed the
use of DAI evidence in medico-legal cases of only limited value, never to be
used
outside of a clear clinical history of trauma. In the instant case the clinical
history of
trauma was non-existent in that: (1) there were no eyewitnesses to Baby Alan's
alleged abuse; (2) no statements were ever given to the law enforcement officials
to
indicate that Baby Alan was ever physically abused by Mr. Yurko; (3) there was
no
other clinical history of abuse or trauma. In fact, prior to November 24, 1997,
there
was nothing in Baby Alan's medical history to indicate that he has suffered
any falls,
shaking, accidents, etc. Additionally, there were never any signs of abuse witnessed
by anybody. Therefore, there was absolutely no clinical history to be able to
support
DAI as traumatically induced.
Many peer reviewed
studies by an array of the world's top experts in brain
injury have now posited that DAI has many causes of which many are induced by
chemical, hypoxic, ischaemic, anoxic and myriad other causes which are not
mechanical or traumatic in nature. A sampling of the peer reviewed studies from
prestigious journals are included in Exhibit F of the Appendix to this Memorandum
to
indicate the drastic change in the forensic/scientific theories regarding DAI.
At the
time of Mr. Yurko's trial the forensic community was not fully aware of the
newest
theories and trends relating to DAI as they were not securely established in
the
relevant literature with the preponderance and acceptance by the community as
they
are today. As such, Mr. Yurko's attorney and Dr. Douglas Shanklin would not
have
been able to, through the use of due diligence, present the relevant forensic
theory
that DAI is not to be used to attribute brain injuries only to trauma. As such,
the
recently accepted theory qualifies as newly discovered evidence pursuant to
Jones v.
State, 709 So.2d 512 (Fla. 1998).
Had the newly
discovered forensic principles been available to Mr. Yurko at the
time of his trial, Mr. Yurko's trial likely would have resulted in an acquittal.
The
State relied heavily on the DAI to establish that Mr. Yurko was the only person
who
was present and who could have inflicted traumatic injuries upon Baby Alan.
The
State's witnesses all relied on the DAI as proof of Mr. Yurko's guilt and the
prosecutor argued the same to the jury. Without the reliance on the (now known
to
be erroneous) DAI argument, the State would not have been able to prove their
case
against Mr. Yurko and the trial would probably have ended in an acquittal.
Therefore, pursuant to Jones v. State, 709 So.2d 512 (Fla. 1998), Mr. Yurko's
Judgment and Sentence should be vacated and Mr. Yurko should be allowed to take
his case to trial once again and present the newly discovered forensic theory
on DAI
to the jury in support of his defense.