Speaker 1: You're listening to the Mind of Low Murder.
Speaker 2: Listeners in the Washington, DC area. We hope. My name
is Thomas Next. I'm a writer, a consulting producer, and
I am now the mox public other victims of violent crime,
how worse time crime, and I think it'll murder. It's
really interesting, special and we hope to see Facebook group
together with Saturday.
Speaker 3: My name is Kristin Dilly. I'm a writer, a researcher,
a teacher, and a victim's advocate, as well as the
social media manager and co administrator for the Colonial Parkway
Murders Facebook page with my partner in crime, Bill Thomas.
Welcome to Mind Ever Murder.
Speaker 2: I'm Kristin Dilly and I'm Bill Thomas.
Speaker 3: It's cold day here in coastal Virginia. It's probably equally
as cold up there.
Speaker 2: Yeah, it's in the low twenties with a stiff wind.
I'm not loving it.
Speaker 3: So we want to try to give you something interesting
to curl up with when you decide to stay inside
and catch up on your podcasts.
Speaker 2: And then, of course I'm hoping the weather won't be
too cold because I'm going to be heading your way soon.
We're speaking Saturday, January twenty fifth.
Speaker 3: That's right. We are going to be at the Montclair
Public Library, which is right outside of Washington, d C.
We are going to be appearing at there by the
book Mini con along with various other assorted guests, and
we are really looking forward to that. So we do
encourage you come hang out with us for a little
bit as much time as you would like, a little
or a lot. Spend a little bit of time with us.
We're going to talk about advocacy and what that looks like.
We'll fill you in on any developments in the Colonial
Parkway murders, and we'll be available to take selfies, sign autographs,
and generally answer your questions. So please do join us.
Speaker 2: So Saturday, January twenty fifth, Montclair, Virginia at the Montclair
Public Library. Beautiful facility. I think it's going to be
a very energy afternoon.
Speaker 3: I'm looking forward to it. We would also encourage you,
if you were in the DC area to stop by
the Smithsonian American History Museum and check out a truly
fantastic new exhibit that they have running called Forensic Science
on Trial. It basically encapsulates some of the forensic science
hits and misses over the years, things that have become
very popular but maybe don't always necessarily work to get
the conviction that is needed. For example, they have a
section on forensic odontology and bikemark analysis. They have a
section on the polygraph and the sort of issues that
come up with the polygraph. There's a section on handwriting analysis.
I saw this exhibit when I was chaperoning the Senior
field trip to Washington, d C. In December, and I
have not been able to stop thinking about this exhibit.
I do encourage anybody who's interested in forensic science stop
by the Smithsonian check it out. It's a wonderful exhibit.
It will definitely give you a lot to think about. Also,
it's just good fun to go to the American History Museum.
There's so many wonderful things there. But I do encourage
you to catch this exhibit if you are in and
around the DC or Maryland area and are able to
get up there. All the Smithsonian museums are free if
you've never been to one, and they're just a wonderful experience.
Do try to catch that exhibit if you possibly can.
And we are going to use that exhibit as the
jumping off point for a series of episodes that we're
going to do throughout the year about forensic science and
taking a deep dive into some of these same topics,
but mark analysis, holigraphy, handwriting analysis. We're very excited by this,
and when we put this up on social media and
floated it as a test balloon, you all seem to
be pretty excited about it too. We're going to embark
on this throughout the year and we hope that you
will find it interesting and instructive.
Speaker 2: One of the things we're going to be trying to
schedule in the coming weeks and we'll reach out to
her is our friend. Lisa Ribakoff was one of the
people who responded to this thread. Kristen had put out
the question about forensic science and questions about various techniques,
and there are aspects of forensic science that have changed
a lot. Of course, now these days we talk about
DNA quite a bit. The purpose of the Smithsonian exhibit
is to go back and look at a number of
different scientific techniques, some of which fallen into disfavor. Lisa
Ribakoff was one of the people who responded. She herself
as a polygraphic examiner of significant repute. She's on the
National Organization that A credits polygraph examiners. Sometimes I want
to call them polygraphers, but that makes them sound like
they have multiple spouses.
Speaker 3: I didn't even think about it that way because I
have been saying polygraphers, and now that you put it
that way, I can't ever say it that way again.
Speaker 2: Somehow I stumble on polygraphers. Lisa's absolutely wonderful. You may
recall she was on the podcast with us about a
year ago talking about the Colonial Parkway murders and how
polygraphy was used in that case. We'd love to have
her back, and we'll reach out to her and see
if we can get her schedule for some time in
the next few weeks. She's got a lot going on
with her professional career and was recently married, so she's
got tons of stuff going on. But we'll reach out
to her and see if we can get her booked
and school us further on polygraphic examinations and how they
work and how they can be used. Most effectively, interestingly,
she was one of the people that jumped right into
that thread that you started.
Speaker 3: Yeah, that was very interesting to see how much many
people had suggestions for things that they would like to
see us cover. So we're going to try to take
note of as many of those as we can and
see how many experts we can find to talk about
those various techniques. So we're really looking forward to that.
In that same vein, I was reading the New York
Times magazine this past weekend, as I so often do.
I found a story that I wanted to share with Bill,
and so I sent it and said, I think this
would be interesting to talk about on the podcast. It
was a quite upsetting and rather tragic story about a
family who has come under a cloud of suspicion, which
is the name of the long form piece that we're
going to talk about today, when one of their children
fell ill mysteriously and the parents were accused of being abusive.
While that is not the case, the legal community surrounding
them has leaned more toward the idea that when babies
appear with this sort of injury, the same one that
this small child had, it is largely because of abuse
from a parent. So this is a family that is
trying to clear their name of wrongful abuse charges, and
the uphill battle that they are facing as a result.
As soon as I read this, I sent it to
Bill and said, we have to cover this on the pod.
Speaker 2: It's a fascinating article. As Kristen said, it's very moving.
The headline from the New York Times magazine he dialed
nine to eleven to save his baby, then his children
were taken away. The controversial medical diagnosis of shaken baby
syndrome and send parents to jail. What if the symptoms
are caused by something else? And it's by a woman
named Pamela Koloff who's a writer for Pro Publica and
she covers criminal justice. Tell us a little bit about
this article.
Speaker 3: This was first published on December twenty ninth, twenty two,
twenty four And as soon as I saw it and
that really interesting slugline that you just read about shaking
baby syndrome, I was like, that's it. I've got it.
I want to read about this. What we thought we
would do is we sometimes do with long form articles
here because we know not everyone has the time to
devote to reading a piece like this. We're going to
go ahead and read this to you with our additional
commentary in between paragraphs and ask some very I think
concerning questions that arise around this idea of shaken baby syndrome.
And I know Bill, you also had some questions and
emotions that it brought up for you. So I'm going
to have you share your experience in this realm as well.
The article is called A Cloud of Suspicion by Pamela Koloff.
I was interested to note that she writes about the
factors that lead to wrongful conviction. On the nine one
one call, Nick Flannery's voice was frantic as he tried
to revive his infant son. Come on, buddy, he pleaded
with the two month old who had gone limp. Come on, buddy, breathe. Nick,
who was on paternity leave from his IT job, was
caring for his two boys while his wife, Felicia, was
at a doctor's appointment. Not long before he called nine
one one. On September seventh, twenty twenty three, his baby, Arlow,
vomited while being given a bottle. Nick, who was cradling him,
turned him over to ensure that he did not choke,
then changed him into fresh clothes and put him in
his bouncy seat. Suddenly, Arlow's eyes rolled back and his
body stiffened and then he went still. Paramedics rushed to
the Flannery's house in Blue Ash, Ohio, a suburb of Cincinnati.
They revived the infant, but his breathing remained shallow. Felicia,
who returned home to find emergency medical workers swarming her driveway,
staggered across the front yard toward her family, uncomprehending.
Speaker 2: In the emergency room at Cincinnati Children's Hospital Medical Center,
the Flanneries looked on as the doctors worked to save
their life. So soon a social worker took them aside.
She explained that a CT scan revealed the presence of
subdermable hematomas, or bleeding between the brain and skull, a
symptom she said, commonly seen in abuse cases. Nick and
Felicia were dumbfounded. More tests still needed to be run,
she told the Flanneries, but mandatory reporting laws required that
the police and child welfare officials be alerted. Nick and Felicia, upset,
but certain that any concerns would be allayed since doctors
gathered more information, said they understood. Detectives arrived, and the
attending physician told them that subdural hematomas could indicate that
there was an underlying medical condition, or that the baby
had been shaken. It was the second scenario that Felicia
remembers the doctor mentioning to her that evening. I'll never
forget him telling me, you probably know this as shaken
baby syndrome, she said. Felicia, having once listened to a
podcast that characterized the diagnosis as controversial, grew alarmed.
Speaker 3: No outward signs suggested that Arlow had endured harm. Arlow
is a nicknamed his parents asked that I used to
protect his privacy. He had no bruises, scratches, or cuts,
no external evidence of head trauma like a scalp injury
or a skull fracture, no broken bones, no symptoms of
neglect or malnutrition. Nick and Felicia were his sole caregivers,
and neither of them had any previous interaction with child
protective services or a criminal history. The next day, as
they sat at their son's bedside in the pediatric ICU,
they were visited by two doctors with the hospital's child
abuse team, Doctor Stephen Famm, who was halfway through a
three year fellowship in child abuse pediatrics, and doctor Pritima Shambang,
a child abuse pediatrician, each closely examined Arlow. Child abuse
pediatrics is a relatively new subspecialty whose practitioners work closely
with police officers and social workers to investigate potential cases
of intentional harm. These physicians are entrusted with a profound
responsibility deciding whether a child's symptoms indicate abuse or are
due to an unrelated medical issue. Their findings often determine
whether parents face criminal charges and whether children are separated
from their families. Boy, I was surprised to learn that
is a subspecialty that we need to have.
Speaker 2: I didn't know this either. Now let me jump in
with a personal story some years ago, and I'm talking
about twenty five years ago when my son was quite small.
My son, Chris is twenty seven now, so this would
have been twenty five twenty six years ago. Chris was
a baby and we were up here in Connecticut. It
was quite snowy, as I recall, and I was holding
Chris while my ex wife Valerie was making dinner. I
was holding him and walking into the living room, and
somehow I tripped over our boots which were next to
the back door. I stumbled quite badly. And those of
you that have had children will know what I'm talking about.
Baby's heads are incredibly heavy in relation to their body weight.
So when you're holding a child, and you're typically holding
the baby and holding their head in one hand while
you hold the usually there but in the other. When
I stumbled, I lost Christopher. He flipped end over end.
Remember how heavy the head is, so he did a
loop the loop in the air, and then he landed
on the oriental rug in the living room of this
little weekend house that we had, and he hit hard
and he started crying, and I was completely mortified. I
had fallen to my knees when I stumbled over the boots,
lost Chris. He goes flying. I grab him. I called
out to Valerie and said I dropped the baby or
something like that. She came running in and we were terrified.
We remember where new parents, we never had a baby before.
Chris was crying, he seemed okay, but we were so
shaken up that we immediately stopped cooking dinner, put our
boots on, put our winter coats on, and headed out
into the night. And we went to the emergency room
in Wednstead, Connecticut, which is about I'm probably close to
ten miles away. We're way out in the country out here.
When I brought him into the emergency room, he had
calmed down, but we were just very shaken up by
the whole experience. We brought him in, we explained what
had happened. The doctors and the nurses were wonderful, but
one of the things we realized pretty quickly was they
made a point of separating us. And of course we
were nervous and upset about what had happened, and we
wanted to be together with Chris, and they wanted to
separate us. And it wasn't until a little further into
the process that I began to realize they wanted to
talk to Valerie without me present because they wanted to
find out if Chris, as a little baby Christopher, was
being subject to abuse. And I didn't feel bad enough
already about what had happened. When they left me alone,
I was actually trying to figure out whether there was
a bridge high enough for me to jump off of,
if there was anything wrong with this beautiful baby that
I had just dropped. Now, thankfully, Chris had a bump
on his forehead, but he was fine and we got
through it. But I remember being so shocked when they
separated the two of us. When we got back together,
I realized how they had viewed me as a father
that had I was I abusing this child and I
didn't feel bad enough as it was. Now my understanding
from later research is that they do this all the time,
that they make certain that child's injuries are not the
result of being abused by the parents or caregiver or
someone like that. But man, it did not feel good,
and we actually realized later there was a possibility they
might have followed up with us social services that didn't
end up happening. I think they ended up accepting our
version of what had transpired, which was the truth, of course.
But I don't think I've ever felt worse in my
entire life, more embarrassed and ashamed of tripping and falling
while holding our baby.
Speaker 3: So then I imagine reading this probably struck some chords.
Speaker 2: Oh my gosh, when you get into the details and
how the two parents felt with their baby boy Arlow,
it just took me right back to share that terrible night.
Everything worked out fine for us, and Chris was fine,
and he's healthy and twenty seven years old and in
law school. Now our story has a happy ending. But
I completely understand the terrible upset that this family went through.
Speaker 3: This story continues, fam asks the Flannery is whether anything
had happened to their son, a fall, a car accident
that might account for the bleeding on his brain. More
tests still needed to be performed, he said, but the
absence of any reasonable explanation for our low symptoms suggested
that the infant had suffered abusive head trauma. Families using
the term that the American Academy of Pediatrics has recommended
physicians employed since two thousand and nine instead of shaken
baby syndrome. That year, the AAP endorsed the use of
the more comprehensive term abusive head trauma to describe not
only brain, a skull, and spinal injuries that result from shaking,
but also those resulting from blunt impact or a combination
of the two. The name change came amid controversy over
whether shaken baby syndrome signature symptoms brain swelling and bleeding
around the brain and from the retina were always evidence
of abuse. Once believed to be proof of shaking, the
symptoms had by then been shown to have other causes,
including accidental falls, illness, infection, and congenital disorders. The courts
took notice, and in two thousand and eight, a Wisconsin
appeals court held that a shift in mainstream medical opinion
raised questions about the diagnosis or assumptions.
Speaker 2: It was in the wake of the Wisconsin decision that
the AAP's Committee on Child Abuse and Neglect, a small
group of child abuse specialists, spearheaded the name change. The
committee's work came at a time when confidence was eroding
in a diagnosis that the child protection community saw as
vital to safeguarding children. The new name, abusive head trauma,
was not only more precise, according to its two thousand
and nine consensus statement on the matter, it would also
show up credibility in the courts. Quote legal challenges to
the term shaken baby syndrome can distract from the more
important questions of accountability of the perpetrator and the safety
of the victim, the statement read. Fifteen years later, the
diagnosis is still shaping criminal prosecutions and child welfare investigations.
Child abuse pediatricians say they do rigorous work ups to
rule out the possibilities of both natural and accidental causes
before they settle on the diagnosis, but doctors and the police,
prosecutors and judges who look to them for guidance don't
always get it right. Thirty five people whose convictions rested
on the diagnosis are currently listed on the National Registry
of Exonerations, not yet counted as Joshua Byrne, whose wrongful
conviction was vacated by a Michigan court. In November. This year,
convictions that hinged on the diagnosis were overturned in California, Kentucky,
and Minnesota. In Texas, doubts about the guilt of a
death row inmate, Robertson galvanized a bipartisan group of lawmakers
to call for a wholesale reappraisal of the evidence. The
legal battle that followed succeeded in postponing his scheduled execution
in October. In a similar case in Arkansas, another father,
Cody Webb, was acquitted of capital murder. Some judges, however,
have started looking at the diagnosis with more skepticism. Last year,
a new Jersey appellate court back to a lower court
judge who pronounced the diagnosis quote akin to junk science.
Speaker 3: Wow, I had no idea that there were that many
exoneries that were convicted based on shaken baby syndrome evidence.
That was news to me. Were you familiar with this
many egxoneries on that level.
Speaker 2: No, I've read about shaken baby syndrome. But of course,
in this example, and we'll get into more details as
the article unfolds, there start to be some other very rational,
alternate explanations for why Arlow had bleeding in his brain.
You can see how there might have been a rush
to judgment in some of these cases.
Speaker 3: And I think that those sort of rushes to judgment,
I would imagine that they probably happen always with the
best intentions for the child in mind. But where does
that leave the parents who are being accused of something
they did not actually do? That was the big question
that came up for me.
Speaker 2: You're listening to Mind over Murder. We'll be right back
after this word from our sponsors. We're back here at
Mind over Murder.
Speaker 3: That tension between child abuse pediatricians who stand by their
ability to identify abuse from telltale symptoms and a mounting
number of criminal cases that point to the fallibility of
the diagnosis leave families like the Flanneries vulnerable. Quote. The
rebranding of Shaken Baby syndrome preserved the diagnosis and allowed
it to live on with less scrutiny. Unquote, says Randy Peppetti,
an Arizona trial attorney an author of the twenty eighteen
book The Forensic Unreliability of the Shaken Baby Syndrome. Quote.
Shaken Baby Syndrome is alive and well, but mostly operates
under an alias. Nick and Felicia had been together ever
since they were juniors in high school in Troy, Ohio.
He ernest and mild, mannered, with chunky black glasses that
channeled Buddy Holly. She warm and unguarded with a mane
of red hair. They were strivers intent on muscling their
way out of what Nick called the bottom end of
the lower middle class. He enlisted in the Army to
pay for college, serving a combat deployment to Afghanistan, and
Felicia worked her way into management at a national retail chain.
They were intentional about starting a family, waiting until they
were financially secure enough in their late twenties for Felicia
to stay at home when they had their first child,
Arlow's older brother, in twenty twenty one. They built a
house in a good school district with room for a
big family and painted it a cheerful lavender. The Flanneries
did not hire a lawyer when the specter of abuse
was first raised by doctors. They remained singularly focused on
their infant son, who lay intubated in the pediatric ICU,
his tiny body dwarfed by medical machinery. Before his hospitalization,
they told his pediatrician how he slept so much that
Felicia often had to wake him up for feedings, but
their pediatrician was not overly concerned. Arlow was meeting all
his milestones and appeared to be thriving. Three days after
he arrived at the hospital, he underwent surgery to relieve
the excess fluid that had been building up inside his head.
Nick and Felicia were relieved to see that he gradually
improved with each day that followed.
Speaker 2: Now I would make the point. Actually, I'm not here
to criticize the Flanneries, and I feel really terrible for
this family, but I actually think they should have hired
a lawyer.
Speaker 3: Yeah, I agree, I have not to this point knock
on Wood needed a lawyer for anything other than real
estate transactions. But I think my default stance on anything
regarding law enforcement is going to be I'm hiring a lawyer.
We've heard enough about this stuff by now that it
just seems sensible. You can talk to my attorney.
Speaker 2: Without a doubt. In a report that FAM forwarded to
the blue Ash Police Department a week after the operation,
he wrote that Arlow's symptoms, which a recent exam had
showed included retinal hemorrhages, raised a concern quote unquote for
abusive heptrauma. Further testing, he noted, did not turn up
any evidence of a genetic condition or a bleeding disorder
that could explain his symptoms. Though it was not a
definitive diagnosis, it was enough to set in motion a
change of events that would upend the Flanneryes lives. Two
days later, on September twenty, twenty twenty three, a social
worker went to their home to inform them that Hamilton
County Job and Family Services, which oversees child protective services
for the area, was filing for temporary custody of their children.
Moments later, Blue Ash Police detectives served a search warrant
demanding that the Flanneries allow them entry and turn over
their phones, police body cameras, captured the Flannery's anguish, Nick buckled,
nearly falling to his knees. Felicia, wide eyed, stared back
at the officer's hardened expressions.
Speaker 3: What followed was a grinding, bureaucratic journey that stripped them
of everything they had worked so hard to build. They
were forbidden to take Arlow home when he was released
after a two weeks stay at the hospital. A court
order mandated that he and his brother live with Felicia's aunt,
limited to supervised interactions with their children. Nick and Felicia
did everything they could to maintain a sense of normalcy,
arriving at the aunt's house each morning before dawn so
they could be there when the boys awoke, and caring
for them throughout the day until Felicia nursed Arlow to sleep.
Barred from spending the night, they return home each evening
to an empty house, desperate to be a family again
and hoping that voluntarily submitting to an extra degree of
scrutiny might convince the authorities that they had nothing to hide.
The Flannerys had cameras installed in every room of their house.
At a hearing in Hamilton County, give and I'll Court
that October, Magistrate Nicholas Varney offered a tentative path forward.
The children could return home, but under strict conditions. Nick
and Felicia were barred from being alone with them, and
the boys' grandmothers, who had come to court and volunteered
to help, agreed to take turns and maintain a constant presence.
This is heartbreaking, what a nightmare for any parent.
Speaker 2: And this seems like such overreach too. Why couldn't they
spend the night if the aunt was there? And then
later you have the two grandmothers volunteering to effectively supervise.
I don't understand how if other responsible adults, the aunt,
the two grandmothers were in the house, why would Nick
and Felicia not even be allowed to spend the night
in the home. I thought that was shocking. This felt
overreach is the right word.
Speaker 3: It does. And again I'm sure that someone out there
was thinking, we're doing what's best for the children, But
look what you're doing to the adults, who at this
point have never been proven guilty of doing anything wrong
at all.
Speaker 2: And there's a reference a few paragraphs back about how
much Arlow slept when he was a little baby that
I think is incredibly important because, as it turns out,
there are conditions in the early part of Arlow's life
that could have explained what was happening here with the
brain bleeds. So the story continues. The threat of losing
their children never went away. A caseworker would appear unannounced,
entering their home and probing whether the flanneryes had deviated
in any way from the court order. Their original caseworker
and then her replacement often sought to get Felicia alone,
pressing her to accept that her husband was an abuser. Quote.
I was not seen as part detective of my children
because I did not believe that Nick hurt our son quote,
she told me in November hearing, a prosecuting attorney put
the county's objectives plainly. We maintained that the Flannery children
would be at imminent risk of harm if they were
to reside in the parents' home today and were custody,
not to be granted to job and family services. I
find this so disturbing.
Speaker 3: Yes.
Speaker 2: Then on January third, Blue Ash Police detectives made an
unannounced visit, arresting Nick on assault and child endangerment charges. Nick,
who was handcuffed in front of the older son. Was
careful not to react. I knew they wanted to see
me as this horrible, violent person with a hairpin trigger,
he says. From that moment forward, the Flanneries found themselves
in parallel legal battles, one in juvenile court over the
custody of their children and another in criminal court, where
Nick faced prosecution.
Speaker 3: At this point, I was like, what is happening here?
Speaker 2: Yeah, this feels like such a nightmare. And this is
every parent's nightmare.
Speaker 3: Not having been a parent and not ever wanting to
be a parent, I have no understanding of this. But you,
as a parent, I'm sure you were looking at this
and going, oh my god.
Speaker 2: And you try to put yourself in that situation, and
what would you choose to do. It's just horrible. I
know we've used that word before, but this feels like
such overreach by Child and Protective Services.
Speaker 3: Two days after his arrest, when he was said to
be released on bond, the Flannery's caseworker arrived at the
house without warning their Nick was within his rights to
return home the court had not imposed no contact order.
The caseworker removed the infant in toddler That afternoon, Felicia
hurriedly nursed Arlow before he was taken away. I was
sitting on the stairs, just crying and crying. Felicia told
me my toddler started wiping my tears away, and I
remember thinking I have to get it together because this
might be the last time I ever see them. The
boys were not placed in foster care, as she had
been told was a possibility. They went to her aunt,
and they were returned home the following week at the
direction of the juvenile Court. But the knowledge that her
children could be taken from her at any moment left
her unmoored. Stalked by the fear of what might happen
if one of the boys fell or hurt themselves, she
rarely left home, trusting the cameras she'd installed to document
her every interaction with her children. She inexscrupulously followed the
court's order to have an approved family member present around
the clock, but she began losing sleep over any possible breach,
even imagined that could cost them custody. I started having nightmares,
she said. Where the nightmare was that I was found
alone with my children.
Speaker 2: The Flanneryes, felt certain there was a logical explanation for
Arlow's symptoms, and they began to piece together what they knew,
starting with his difficult delivery, which had aim ended in
an emergency cesarean section. More than twenty four hours of
labor augmented with potocin to make contractions stronger, had left
a deep hollow above his forehead. The Flanneries had been
assured this was a normal consequence of a challenging delivery,
and the indentation, though conspicuous, had eventually gone away. In retrospect,
they wondered if this had anything to do with the
bleeding in his brain. Also notable looking back was the
drastic increase in Arlow's head circumference in the weeks after
his birth. By one month, his medical record showed he
had leaped from the eighty first percentile for head size
to the ninety ninth, which was a possible cause for concern.
The Flanneries had been told that his head growth would
have to be monitored. If it continued to expand at
the same rate, he would be referred to a specialist
for evaluation. His next head measurement was scheduled to be
taken the day after after Nick called nine one one.
As their questions multiplied, the Flanneries consulted three doctors, a
pediatrician who was qualified to testify in court as a
child abuse expert, a pediatric neurologist, and a radiologist. After
studying Arlow's medical records and imaging, they each concluded that
he had not suffered a sudden trauma just before he
was rushed to the er. In written reports and in
later testimony given in juvenile court by two of the experts,
they laid out their findings. Arlow, they determined, had a
pre existing health condition. The bleeding on his brain was chronic,
most likely originating at birth. Fluid had then collected between
his brain and skull and pressure built, eventually triggering seizures.
This explained Arlow's rapid head growth and excessive sleepiness that
the Flanneries had reported to their pediatrician.
Speaker 3: That makes a lot of sense, and ultimately, the one
photo that shocked me most out of this whole entire
article was the one where you can see when Nick
is holding Arlow, this drastic, very deep hollow above his forehead.
It was shocking to me. I'd always heard that babies
have very soft heads, and that you can't actually dentt
a baby's head. My poor boyfriend will absolutely murder me
for saying this. But he's actually got a flat spot
on the back of his head where he was left
lane still for too long when he was a baby.
So I do know that skulls can be malleable in
young babies. But the photo that I saw of this
divot in his forehead, that was terrifying. And so then
when I read this, I was like, oh, that that
makes a lot of sense. Having read that, does that
make sense to you?
Speaker 2: It does? And I remember when Chris fell or I
dropped him. They talked about how when your little Chris
was probably six months old or so when our incident happened,
the top of your head when you're a little kid
has a soft spot because the skull has not completely
knitted together, because it has to have room to grow,
just like we're seeing with Arlow here. The crazy thing is,
there doesn't seem to be any openness on the part
of these pediatric abuse specialists to the possibility that Arlow's
condition may have much more to do with his difficult
birth than it would have been with abuse at the
hands of his father.
Speaker 3: In his report, FAM dismissed the idea that Arlow's birth
was to blame, pointing to the baby's sudden collapse a
full two months after he was born. Fam made no
mention of the details in Arlow's medical records that noted
the baby's head circumference at one month, or the unusual
rate of growth that his pediatrician had flagged for further monitoring,
but several facts in the medical records suggested an ongoing condition.
In addition to his quickly expanding head circumference, there was
his printounce sleepiness, possibly a symptom of seizures related to
fluid around the brain. There were also the post operative
notes of Arlow's neurosurgeon, which described the subdural hematomas as chronic,
suggesting that they had been present for an indeterminate period
of time. The blood on the infant's brain was straw colored,
the surgeon had observed, not the pink or red typically
associated with acute trauma. During a twenty twenty three juvenile
court hearing, Fam acknowledged speaking with the neurosurgeon and reviewing
the surgical notes, but he said he did not include
them in his report because he focused on other indicators,
such as Arlow's rapid decline. The thing that I focused
on is his acute presentation.
Speaker 2: Pam said, I think this is shocking that the doctor
is not really including a more complete picture of what
has happened to Arlow. And I feel like he's focusing
only on evidence of abuse and not offering a more
complete picture which might indicate that this is not the
result of abuse.
Speaker 3: Yeah, he is cherry picking his evidence and they're just
really just seems very irresponsible. I wanted to better understand
FAM's perspective and that of the pediatrician who examined Arlow
with him, Shaanbag. The Flannerys agreed to provide a letter
authorizing the doctors to talk to me about their son's
protected health information, but a spokesperson for Cincinnati Children's declined
to make them available for an interview. The hospital also
did not respond to a detailed list of questions. The
flannery Is believed that the new expert opinions provided by
the three doctors would exonerate nick. I thought investigators would
consult the doctors we were talking to, and this whole
misunderstanding would be swept away. Felicia says, and this is
where the butt comes in.
Speaker 2: But the suspicion of abusive head trauma, once raised, is
hard to undo. Christina Kerlis, a Las Vegas mother I
spoke with whose two year old Jokai Davis was rushed
to the hospital in twenty eighteen in cardiac arrast, told
me that the doctors developed quote tunnel vision unquote after
finding her son had the diagnosis signature symptoms. Jokai died
three days later, and she was charged with murder. It
took years of legal wrangling, during which her three other
children were removed from her custody, for Kurlos to be vindicated.
Prosecutors dropped charges in twenty twenty two after the defense's
medical experts determined that Jokai died from complications of sickle
cell trait and inherited blood disorder.
Speaker 3: Oh wow, I know.
Speaker 2: It's just a horrible story. Even if parents who were
accused challenge and abusive head trauma diagnosis with medical experts
of their own, prosecutors tend to view these witnesses cynically.
Their distrust stems from a core belief among some child
advocates that physicians who questioned the diagnosis whom some dismiss
as denialists are back actors. Quote denialists persist in generating
false controversy against the diagnosis of AHT and unwarranted skepticism
about shaking being an important mechanism of AGET, states an
opinion essay written by three prominent child abuse experts who
appeared last year in Drama Pediatrics, the Journal of the
American Medical Association. Quote, misinformation generated by science denialists may
harm children unquote.
Speaker 3: I don't love this idea that being skeptical means you're
being a science denialist. I feel like that's those aren't
the same thing.
Speaker 2: No, And it's almost like there can only be one viewpoint,
which is, of course, this is abuse. I'm troubled by
this me too. Doctor Cindy Christian, a lead author of
the American Academy of Pediatrics two thousand and nine statement,
called it quote cynical unquote to suggest that the shift
to abusive head trauma was made to evade scrutiny of
the diagnosis. Rather, she wrote in an email, the name
change ensured quote that physicians were using correct terminology in
medical records and in courts. The controversy around shaken baby syndrome,
She added, as largely contained to the legal arena. Quote.
The diagnosis is not controversial in children's hospitals around the world,
she wrote, the courtroom is not designed to be an
arbiter of scientific truth. I can't say I completely agree
with that either.
Speaker 3: I feel like there's a lot to unpack in some
of these statements. I think. In its most recent policy
statement about the diagnosis, the AAP set in twenty twenty
that the name change to abusive head trauma quote was
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 unquote. The AAP quote continues to embrace the shaken
baby syndrome diagnosis as a valid subset of the AHT diagnosis.
The antipathy for physicians who challenge the diagnosis was hard
to miss at the International Conference on Shaken Baby Syndrome
Abusive Head Trauma held in Salt Lake City in September.
The conference, which draws child abuse pediatricians, social workers, police officers,
and prosecutors, featured multiple presentations that cast doctors who testify
for the defense as both ill informed and mercenary. During
a keynote presentation, Matthew Torbensen, a deputy district attorney in Milwaukee,
questioned whether doctors operate in good faith when they rebut
an abusive head trauma diagnosis. Is that practicing medicine, he
asked a sympathetic crowd, Or is that providing reasonable doubt
for sale? Wow? Yeah, that's a really problematic question. The
expert opinions of doctors from outside the field of child
abuse pediatrics who weigh in a these cases, including radiologists, neurologists,
and pathologists, are rarely given the same deference by the courts,
one reason that most legal efforts to counter the diagnosis fail.
In July, I chronicled the efforts of prosecutors at the
Nashville District Attorney's office to overturn the two thousand and
four shaken Baby conviction of Russell Mays. Those seven medical
experts concluded that his son's death was a result of
natural causes. The presiding judge refused to grant a new trial.
Speaker 2: That's just shocking for the Flanneries. Having three physicians who
provided an alternate explanation for arlow symptoms did not prove
to be enough. During a hearing in juvenile court in March,
Shuanbach took the stand to dismiss the notion that a
birth injury could explain the infants presentation at the er,
emphasizing that abusive head trauma was not the only possible cause. Quote,
there was no other medical condition that could account for
these injuries. She said, yes, there was no. There clearly was.
I think this is absurd and it's painful to see
how rigid and inflexible some of these doctors can be
where they're not even willing to acknowledge that there could
be another cause of Arlow's I believe on the brain.
After hearing from both sides Varney, the magistrate handed down
a ruling late this summer in which he leaned heavily
on Shanbeg's testimony, finding that the infant had been abused,
color me skeptical. Still, the magistrate was careful to state
that because of doctor's differing opinions, both the quote origin
and cause of the injuries remained unknown unquote. The attorneys
with whom the Flanneries retained to represent them in juvenile Court,
James Whitfield and Aaron Rapier criticized this conclusion as logically
inconsistent with the finding of abuse and the equivalent of
claiming quote there may be abuse without any abuser unquote.
Guardian ad Ltem, the attorney appointed by the court to
represent Arlow's interests, oppose the magistrates ruling that abuse had occurred,
noting that such a conclusion was quote not supported by
the manifest weight of the evidence. What a nightmare, I
know it, really you feel so bad for these parents.
Speaker 3: It's shocking protective orders remain in place, requiring the Flanneries
to keep living under the watchful eyes of family members,
cameras and caseworkers. They have done everything the court has asked,
taking parenting classes, submitting to mental health evaluations, complying with
the safety plan. But more than a year after their
boys were returned home, they are still living in limbo.
We've asked our caseworkers, so what comes next, Felicia says,
and the answer is that they are still pursuing custom.
They offer us no plan, just that we need to
say that. Nick Harmed Arlow, a spokesperson for Hamilton County
Job and Family Services, declined to comment on pending litigation.
Felicia longs for their old life, unencumbered by the quiet
terror of an abuse investigation. She looks at other mothers
at the grocery store, mothers who are unaware that their
lives can be turned upside down in an instant, and
she feels like a different species, like an alien. She
told me, Nick speaks of what feels like a primal wound,
the shame and stigma of being called an unfit parent. Still,
the Flanneries know they are lucky. Unlike other parents who
face the same kind of accusations, they had the means
to post bond and get Nick out of jail. They
had family members who were able to serve as caregivers,
which prevented Arlow and his brother from being put in
foster care. Their friends stuck by them. Nick did not
lose his job, and they did not suffer the worst
possible outcome. Their baby lived. Arlow, now a healthy one
and a half year old, has enjoyed a full recovery.
Ever since the surgery that relieved the excess fluid on
his brain, he has not needed any medical intervention yet
the future is filled with uncertainty. Nick, who is expected
to stand trial next year, faces up to twelve years
in prison if convicted. Felicia once wanted to fill their
lavender house with children, but she no longer thinks beyond
the present. We used to have plans and dreams, she
told me, and now our future is a huge question mark.
Speaker 2: I think this is just shocking. I feel so bad
for these people, and I feel like they've done everything
they can to prove that Nick is not an abuser.
They've offered very reasonable and thoughtful explanations for how Arlow
could have had the medical problems that he did, and
yet he's still facing a criminal action in Cincinnati. This
is crazy.
Speaker 3: The whole idea behind you have to admit your husband's
an abuser and all of this will go away. That
sounds a whole lot like you have to admit that
you're a witch and we won't hang you for witchcraft.
As somebody who teaches to Crucible every year, this sounds
like a horrible sort of no win situation. He's not
an abuser, It's clear that he's not, but they keep
encouraging Felicia to say, you just have to say that
Ni's an abuser. I read this, and I was horrified
beyond all belief. We do encourage you to take a
look at the article. It is titled A Cloud of
Suspicion by Pamela Koloff. The alternate title given it by
New York Times magazine was he dialed nine to one
one to save his baby, then his children were taken away.
We do encourage you to take a look at those
photos because there are some excellent photos and we hope
that they will continue to follow up on this terrible,
ongoing saga.
Speaker 2: For those of our listeners in the Washington, DC area,
we hope we'll see some of you next Saturday, January
twenty fifth at the Montclair Public Library mini con focused
on true crime and I think it'll be a really
interesting discussion. We hope to see some of you there.
That's next Saturday, January twenty fifth in Montclair, Virginia.
Speaker 3: That is going to do it for this episode of
Mind Over Murder. Thank you so much for listening. We'll
see you next time.
Speaker 1: Mindover Murder is a production of Absolute Zero and Another
Dog Productions.
Speaker 2: Our executive producers are Bill Thomas and Kristin Dilley.
Speaker 1: Our logo art is by Pamela Arnois.
Speaker 2: Our theme music is by Kevin McLeod.
Speaker 1: Mindover Murder is distributed in partnership with crawl Space Media.
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Murders on Facebook.
Speaker 2: And finally, you can follow Bill Thomas on Twitter at
Bill Thomas. Five six.
Speaker 1: Thank you for listening to mind Over Murder. Yeah,