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Court of appeals rejects defense challenge to shaken baby syndrome; finds old wine in new container

State v. Michael L. Cramer, 2012AP2547; District 1; October 15, 2013 (not recommended for publication); case activity

A jury convicted Cramer of 1st-degree reckless homicide for the death of his 10-week old son.  Both the Milwaukee County medical examiner and the attending physician testified for the State at trial. In their opinions, the baby died from blunt force injuries, including trauma to the head and brain.  The defendant’s expert testified that the baby’s injuries were caused by “resuscitated Sudden Infant Death Syndrome.”  Cramer’s postconviction motion argued that (1) the State presented demonstrably false testimony to the jury (i.e. death by “shaken baby syndrome”), (2) trial counsel was ineffective for failing to challenge it, and (3) the real controversy had not been tried.  He offered a second expert’s opinion to prove these points.

False testimony.  It’s true the State may not use false testimony to get a conviction because that would violate the defendant’s right to due process.  Giglio v. United States, 405 U.S. 150, 153-154 (1972); Napue v. Illinois, 360 U.S. 264, 269 (1959).  But, said the court of appeals, that’s not what happened in this case.

¶24 Cramer has not shown that the State used false testimony. Both Dr. Valvano and Dr. Tlomak were qualified expert witnesses, and we do not understand Cramer to contend in his postconviction motion or on this appeal that they were not. See Wis. Stat. Rule 907.02. Both physicians personally treated Matthew and saw evidence of his injuries first-hand. Both based their opinions on their training, experience, and knowledge. The fact that Dr. Plunkett (or Dr. Young for that matter) disagreed with their opinions does not make their testimony false. Indeed, Cramer’s argument that Drs. Valvano and Tlomak testified falsely is tenuous at best. For example, Cramer argues that Dr. Valvano’s testimony that: “There really is no controversy outside the courtroom. The American Academy of Pediatrics, pediatricians, neurosurgeons, it’s well accepted that violently shaking a baby causes injury to that baby” is false given the medical literature on which he relies. The medical-literature controversy however, is not that “violently shaking a baby causes injury to that baby” but rather whether shaking alone, without some type of impact, can cause the type of brain injury commonly associated with shaken baby syndrome in the past. See State v. Edmunds, 2008 WI App 33, ¶15, 308 Wis. 2d 374, 385, 746 N.W.2d 590, 596 (“[A] significant and legitimate debate in the medical community has developed in the past ten years over whether infants can be fatally injured through shaking alone[.]”). As we have seen, Dr. Valvano testified that Matthew died from abusive head trauma, not shaken baby syndrome.  Slip Op.

Ineffective assistance of counsel.  Because the record contained no evidence to support Cramer’s arguments on this point, the court of appeals concluded that the trial court appropriately denied his request for a Machner hearing.  Slip op. ¶ ¶29-30.

Interest of Justice.  According to the court of appeals, “[t]he ‘real controversy’ here was what and who caused Matthew’s death. . . Finding another expert after the trial who would have disagreed with the State’s experts does not mean the real controversy was not tried.” Slip Op. ¶ 32.  Or, put more eloquently:

Cramer’s interest-of-justice contention is but the wine of his other arguments, which we have already rejected, repackaged in a new container. See Mentek v. State, 71 Wis. 2d 799, 809, 238 N.W.2d 752, 758 (1976) (“We have found each of these arguments to be without substance. Adding them together adds nothing. Zero plus zero equals zero.”). Id.

Gut reaction:  Cramer’s appeal tries to piggy back on the defense’s victory in Edmunds where the court of appeals tossed out a decade old conviction for homicide caused by shaken baby syndrome. The defense had filed a postconviction motion offering newly-discovered evidence to show that the expert opinions presented at the original trial (which challenged shaken baby syndrome) are no longer considered fringe views.  See prior On Point post here.


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