It’s long been clear that what was once called “Shaken Baby Syndrome,” later renamed “Abusive Head Trauma” to pretend it’s not the same old sham, was nothing more than a phony diagnosis wrapped in pseudo-medical lingo to manufacture a crime when something terrible happened to a baby but no one knew what. After all, it was a baby, so someone must pay, even if no one did anything wrong.
The “syndrome” consisted of three medical criteria, “the trifecta of brain bleeding, swelling, and bleeding behind the eye.” Obviously, someone had to do something bad to a baby to make such horrifying things happen. The problem was that it wasn’t medically true and could just as well not be caused by anyone’s conduct.
Deborah Tuerkeimer, a professor of law at Northwestern University, has written extensively on the subject, and noted in a New York Times op-ed all the way back in 2010 that “bleeding in the brain can have many causes, including a fall, an infection, an illness like sickle-cell anemia or birth trauma.”
The new understanding of this diagnosis has only just begun to penetrate the legal realm. In 2008, a Wisconsin appeals court recognized that “a shift in mainstream medical opinion” had eroded the medical basis of shaken baby syndrome. The court granted a new trial to Audrey Edmunds, herself a mother of three, who had spent a decade in prison for murdering an infant in her care. Prosecutors later dismissed all charges.
This isn’t to say someone can’t shake a baby too hard, do serious harm and commit a heinous crime. It’s just that the diagnosis doesn’t prove it, and the last person with the baby isn’t guilty of a crime because of it. But that wasn’t the case for then-baby sitter Terry McKirchy in 1984.
A former babysitter who served a few months in jail for shaking a 5-month-old boy so forcefully 37 years ago that he suffered permanent brain damage now faces a possible life sentence after his death from those injuries in 2019, at age 35, the authorities said.
She was taking care of him at her home in Hollywood, Fla., on July 3, 1984, when he had difficulty breathing, the authorities said. His mother told investigators that she immediately took him to a hospital, where doctors found that he had been shaken with such force that it had severed the blood vessels to his brain.
Ms. McKirchy was sentenced to 60 days in jail and probation after pleading no contest in 1985 to charges of attempted murder and aggravated child abuse.
At the time of her prosecution in 1984, McKirchy was pregnant, and that, combined with the fact that the baby survived, influenced the disposition offered her, so she did the only rational thing available to her. She copped the plea.
McKirchy, the former Florida babysitter, did in fact plead guilty to shaking the baby. At the time she told the Miami Herald: “I know I didn’t do it. My conscience is clear. But I can’t deal with it anymore.” She would have faced 12-17 years in prison if found guilty.
Baby Benjamin grew up, severely disabled, and then 35 years later died. Forensic examiners attributed the cause of death to McKirchy’s “conduct” way back when.
Forensic experts considered the passage of time “between the injuries sustained and the death of the victim” when conducting the autopsy and ruled that “the death was directly caused by the injuries from 1984,” the Broward County State Attorney’s Office said in a statement this week. “The facts speak for themselves,” it said, “and this case was presented to the grand jury, which determined that this was a homicide.”
There is no statute of limitations for murder, so legally the 35 intervening years don’t matter. If it’s accurate that McKirchy pleaded no contest, then hopefully she didn’t allocute to any specific conduct, even if she conceded that she could not win at trial. It’s not good, but it’s a lot better than a sworn confession in court. Murder is a different crime than attempted murder, even though it was the same underlying conduct that gave rise to both crimes, so double jeopardy would not prevent her prosecution.
In 1984, people had no more doubt that SBS was real than they did that daycare centers were involved in Satanic pedophilia sacrifice rituals. Today we know more, but not a lot more as reflected by McKirchy’s indictment for a sham diagnosis backed up by Florida forensics. But here she is, age 59, 35 years after two terrible things happened, staring at a murder trial for what could, but could not, be a crime at all.