Landmark 'Shaken Baby Syndrome' Ruling

0:00Game night rush or any night of the week, really. Genius keeps every order moving from online ordering to your kitchen to the front counter. Big league reliability for any business. That's genius. When you own your own business, you own every decision. Now own the card that rewards you for it. Chase Sapphire Reserve for Business is a pay-in-full card that elevates your travel experience and offers premium benefits that will take your business to the next level. Sapphire Reserve for Business offers 8x points on all purchases through Chase Travel, 3x points on social media and search engine advertising, airport lounge access, and more.

0:40Chase Sapphire Reserve for Business. It's the card that gives back all you put in. Learn more at chase.com forward slash reserve business. Chase for Business. Make more of what's yours. Accounts subject to credit approval. Restrictions and limitations apply. Cards are issued by JPMorgan Chase Bank N.A., member FDIC. Wise is the smart way to manage the currencies you need around the globe. When you send money abroad using your bank, you could get hit with hidden fees and exchange rate markups. There's a better way. Try Wise. Wise uses the exchange rate you'd usually find on Google with no unwelcome surprises.

1:13Plus, most transfers happen in under 20 seconds, which means your money arrives in less time than you've been listening to me. It's simple and free to sign up when you download the Wise app. Be smart. Get wise. T's and C's apply.

1:30This is Bloomberg Law with June Grosso from Bloomberg Radio.

1:36Alex Ebert:It's a landmark ruling. Today, New Jersey became the first state where prosecutors can't build murder cases on medical diagnoses that the mere shaking of a baby caused a child's death unless there's further evidence of trauma. The New Jersey Supreme Court is the first in the country to block a shaken baby syndrome theory when investigations into child deaths don't show other injuries, such as bruising or neck damage. Joining me is Bloomberg Law senior correspondent Alex Ebert. Alex, tell us about today's decision. This decision is a landmark opinion issued by the New Jersey Supreme Court that for the first time for a high court in the country, it says that you cannot bring a shaken baby determination from a medical perspective to charge someone with child assault, where if there's no external evidence of abuse, such as bruising or injuries on a child's neck, you can't bring the charges at all.

2:42And the reason why that is is because there's big conflict in medical circles about whether or not these reliable symptoms that we thought for years were evidence of shaken baby syndrome child abuse could be caused by other means. And there's been new studies that show that perhaps these triad of symptoms, such as brain bleeding or bruising on the eyes, isn't actually enough to bring that evidence to court. The reason this is a huge landmark ruling is because we've seen bubbling up across the country different medical groups, biomechanical groups and defense organizations saying we can no longer ignore the conflict in evidence between what we thought was reliable in terms of child abuse and what is now questionable.

3:32Alex Ebert:And this decision involves the cases of two fathers who were facing allegations of child abuse? Yeah, the court was considering the cases of two fathers who both had premature children and were taking care of them and they had seizure symptoms. These dads brought their kids to the hospital to get them looked after. And doctors determined, even though there were no external symptoms of abuse, such as bruising, that these fathers were responsible for injuring their own children by shaking them or slamming them. And the state public defender's office ran to the judge and said, listen, we have these cases all across the country that are questioning whether or not you can bring this sort of determination from an expert in court.

4:19Alex Ebert:In this 109-page ruling, did the court track the scientific evidence? Yeah, the court went deep. So the majority of the New Jersey Supreme Court went through study after study going back to the 1960s, looking at how this diagnosis, shaken baby syndrome, originated. It went back to whiplash studies in cars using monkeys to determine exactly what happens to human beings when they're shaken. And it progressed through different studies by pediatricians and neurosurgeons up through the 90s when a large medical association for the United States said it's a presumption that if you have these symptoms that there's child abuse.

4:59Alex Ebert:And where do the medical associations stand now? The medical associations stand behind the diagnosis, which is what makes this complex. See, you have the industry saying we need to be able to diagnose these children and make sure that we can take them out of bad situations. But you now have a state Supreme Court saying just because you have this diagnosis isn't enough to rule out anything else. And that's not enough to come to court and say, based on my medical opinion, this is the only thing that could have happened. There are seven members of the New Jersey Supreme Court, and this was a six to one decision.

5:36One of the justices issued a dissent here, siding with the medical organization saying, listen, we can't be second guessing the medical establishment here. We are not scientists. We are not people that investigate the scientific method. And she focused mostly on the medical associations that all backed up this diagnosis, where the majority focused on biomechanical experts who said, we originated a lot of the science behind how you determine whiplash and things like that. And if you don't have our consensus for this, then the consensus of the medical industry doesn't necessarily hold water.

6:17Alex Ebert:Can this decision be appealed? It would be difficult to appeal this decision. it would have to go to the United States Supreme Court because that is the only direct appeal from a state Supreme Court. There has not been a ruling on this, to my knowledge, although there is some quotation of a Ginsburg dissent inside of the ruling today. This is now going to go back to the trial court, and these charges will be dismissed against these parents. Is New Jersey different from other courts in the way it's been handling these cases? Up to this point, there has never been a decision that goes this far. Though you have courts start to become extremely skeptical of this no external evidence, shaken baby syndrome theory.

7:02You've had, especially the Michigan Supreme Court, issued decisions saying, hey, we need to provide counsel that does a good job of contesting the state's evidence here at a deep level. And you've also seen criminal courts in Texas and the Texas legislature really question whether or not a death row inmate there should be in prison.

7:23Alex Ebert:So up until this point, how would prosecutors construct a case against someone based on shaken baby syndrome? They needed some physical evidence, right? They do. So doctors create this differential diagnosis by looking at, you know, different markers on the child when they come in to get treatment. You look at things like bleeding on the brain or bleeding in the eyes and say, okay, something happened to this child that's more than just seizures, right? Or they look back at the child's past and say, did you have any accidental injury? You know, did Billy, you know, fall down the stairs? And in cases where that's not present, they, you know, think, okay, we're ruling out other things.

8:06It must be something else. But the problem there is the justices in New Jersey say, That's not enough to come to court and say, we've ruled out everything else. It can only be this.

8:18Alex Ebert:So you need something else, something that physically shows? That's right. You need something else. They call it external evidence, but it's some sort of physical, external issues with the body, right? Damage to someone's neck or bruising, you know, other signs of abuse. And the dissent here calls out that this means that there could be parents or child care providers or other people that get away with abusing children because there's just no external evidence of it. But on the other side, you have decades of people saying we're putting away parents and usually fathers on perhaps flimsy evidence just because a doctor couldn't find a reason for it.

9:02Alex Ebert:Are there a lot of shaken baby cases in this country? I'm unaware of reading through the briefs, how many there are, but we're looking at hundreds. There were several going on at the time when this decision was coming up in New Jersey alone. So this is a forward-thinking decision, cutting edge. Is the New Jersey Supreme Court known for that? The New Jersey Supreme Court is known for this sort of thing. It has extremely robust protections when it comes to privacy. And it's usually at the cutting edge of Fourth Amendment jurisprudence. We've talked in the past about how skeptical they are around, you know, looking at things like someone's Google accounts and other subpoena information.

9:47But this falls in line with the court's skepticism towards allowing police and prosecutors to introduce evidence without it being questioned. Here, you sort of see the justices line up in a way that we haven't in another court to say in this instant where someone is saying it can only be this, we can't allow that sort of thing when there's not enough certainty in the field. We've seen decisions bubble up that look at client accountability for lawyers in this regard, right? But we haven't seen a court go this far. It'll be really interesting to see if other courts go as far as New Jersey and strip this tool away from prosecutors to tackle child abuse, you know, especially in our current climate where child abuse and the abuse of minors is a huge problem and concern, you know, potentially taking away that tool might be more politically sensitive in some parts of the country than others.

10:45Alex Ebert:Tough balancing decisions, no doubt. Thanks so much, Alex. That's Bloomberg Law senior correspondent Alex Ebert. So there's a lot of noise about AI, but time's too tight for more promises. So let's talk about results. At IBM, we work with our employees to integrate technology right into the systems they need. Now, a global workforce of 300 ,000 can use AI to fill their HR questions, resolving 94 % of common questions. Not noise, proof of how we can help companies get smarter by putting AI where it actually pays off, deep in the work that moves the business. Let's create smarter business, IBM. Support for this show comes from public.com.

11:26If you're actively involved in your portfolio, you probably catch yourself repeating the same actions. Buying the dip, manually sweeping idle cash, putting on a hedge. On public, you can now create AI agents that handle all these tasks on your behalf. Just describe what you want to do in plain English. Like, if the VIX hits 25, buy a put option on the S &P 500. Or, if my cash balance goes above$20 ,000, move the excess into my direct index. You approve of the workflow and your agent handles the risk. Monitoring the market, watching for your conditions, and executing your strategies exactly as defined.

12:02An investing platform driven by your intent, not just your clicks. You can also get full read and write access to your account via the public API. Go to public.com slash market and fund your account in five minutes or less. That's public.com slash market. Paid for by Public Investing. Brokered services by Open to the Public Investing, Inc., Member FINRA, and SIPC. Advisory services by Public Advisors, LLC, SEC Registered Advisor. Complete disclosures available at public.com slash disclosures. When you own your own business, you own every decision. Now own the card that rewards you for it. The Chase Sapphire Reserve for Business card brings the best Sapphire Reserve benefits to business owners who expect hardworking rewards.

12:46Designed to meet the needs of business owners at scale, this pay-in-full card elevates your travel experience and offers premium benefits and value toward business services that will take your business to the next level. Fuel your business and maximize rewards with 8x points on all purchases through Chase Travel, 3x points on social media and search engine advertising, annual partnership credits, and more. Make every journey more rewarding with a$300 annual travel credit and access to a network of airport lounges, whether you're looking for pre-flight productivity or time to rest and recharge.

13:20Chase Sapphire Reserve for Business. It's the card that gives back all you put in. Learn more at chase.com forward slash reserve business. Chase for Business. Make more of what's yours. Accounts subject to credit approval. Restrictions and limitations apply. Cards are issued by JPMorgan Chase Bank N.A., member FDIC.

13:39Alex Ebert:A handful of Fifth Circuit judges are mellowing out some rulings from one of the most conservative federal appellate courts, and they're the senior judges. Bloomberg Law's Jacqueline Thompson has done some research on this. Right. So start by telling us about these decisions from the three judge panels that are a little more moderate, less conservative than the full courts decisions usually are. I mean, when we think about the U.S. Court of Appeals for the Fifth Circuit, you know, we immediately think of a conservative appeals court. And, you know, a lot of their rulings are very conservative, but there have been a few decisions lately that don't necessarily fit in with that pattern.

14:24For example, there was a three judge panel that said a Louisiana law that mandated the display of the Ten Commandments in public schools was unconstitutional. There was another one saying that the Texas A &M president at the time was wrong in canceling a student drag show on campus. And, you know, those are rulings that we think of as not going in the conservative pattern that we think of when we think of the Fifth Circuit. So, you know, I started to take a step back and look at who was actually on those panels. And for a lot of the Fifth Circuit argument panels, often it is a Trump appointee more conservative member, a more moderate member of the court, and then a senior judge.

15:08And that's not always the case. Sometimes there'll be multiple Trump appointees. Sometimes there are panels with all Trump appointees. Sometimes it's all George W. Bush appointees. But, you know, for these instances, that seemed to be the composition, either a Trump or Reagan appointee dissenting against a majority of the panel that was a moderate judge or a senior judge. And so I said, okay, well, what's the role that the senior judges are playing here? And, you know, it just seemed to have more of an outsized impact than I expected.

15:37Alex Ebert:Tell us about the composition of the Fifth Circuit itself. Yeah, so I believe there are 17 active judges right now. And there are on top of that, seven senior judges who are still hearing cases. One other senior judge actually went fully inactive earlier this year. So that left just a seven. We have six Trump appointees on that court. We have two Biden appointees. We have, I believe, two Obama appointees, a couple of Clinton appointees, and then about three or four George W. Bush appointees acting as active judges for the most part. One is a senior judge. We have two Reagan appointees who are active judges, and then we have other Reagan appointees who are senior judges.

16:25One senior judge who has been incredibly active is Carolyn Dining King. She is a Carter appointee. So, you know, it really goes the whole spectrum of presidents who have appointed judges to the Fifth Circuit who are still hearing cases and who are still playing a really active role on this court. I mean, the Reagan judges are very active. I mean, two of them aren't taking senior status, which would give Trump the opportunity to fill two seats on that court and sort of expand his wing. But, you know, they're often in line with the Trump appointees on the court. So I can't speak to why they're not taking senior status.

17:06But that may be part of it that, you know, they're like, hey, look, I'm super relevant right now. I'm able to build up these majorities with other factions of the court right now.

17:15Alex Ebert:So will you explain in general, because there are exceptions, as you note in your article, are the senior judges more moderate than the recent appointees, particularly the Trump appointees? I think that's right. I think they're more moderate. They're more of an old school conservative. You know, if you sort of want to put the Republican appointed judges in two factions, you might have, you know, the active Reagan appointees and the current Trump appointees in one basket, and then senior judges who are also Republican appointees, and folks who are like George W. Bush appointees in another basket.

17:54Sometimes there's some crossover there, especially on the fringes. There's one Trump appointee who might be more in line with the moderate wing, and then one Bush appointee who might be more in line with the Trump wing. But, you know, for the most part, the senior judges, they've been around for a while. They've been appointed by presidents of a different generation. And they've spent decades sitting on this court. And, you know, because of that, they may have more experience that makes them less willing to question settled precedent or to think, hey, maybe we should look at this a different way than we have been in the past.

18:27Alex Ebert:And the Fifth Circuit has been sort of trying to test the envelope or move the case law to the right in many circumstances. And they've been getting reviewed by the Supreme Court a lot more than other circuits. You're right that the Fifth Circuit does have an outsized number of cases that are going to the U.S. Supreme Court and that are regularly being considered by the justices. Some of that might be because these judges are writing dissents or concurring opinions that sort of say, hey, take a look at this case. I mean, Dobbs, which overturned Roe, that was a fifth Sarka case. Jim Howe, a Trump appointee, wrote the opinion in that that sort of laid the groundwork for the U.S.

19:13Supreme Court to take up that case. And, you know, we see that in other instances, too. Judge Patrick Higginbotham, who was a Reagan appointee, he's a senior judge, he had written an opinion in a case involving Pornhub and Texas law on age verification requirements for, you know, explicit adult websites that, you know, some people say was sort of a way for the Supreme Court to take up that case because he said, hey, this is, you know, what the precedent is on the books. And that allowed the justices to pick it up and then, you know, alter or address that old precedent and say this is how it should be applied moving forward and upholding that Texas law.

19:51Alex Ebert:Are the Democratic appointees on that court usually in dissent or not? They can be in dissent. Sometimes they line up with the moderate judges. We see folks who are George W. Bush appointees like Leslie Southwick or Katerina Haynes. They will sometimes be lined up with the Democratic appointees who are folks like Stephen Higginson. Judge Graves comes to mind, Carl Stewart. You know, Dana Douglas and Irma Ramirez are the two new Biden appointees. You know, so they're all in the mix as well. And we do find that folks like Haynes, like Southwick, are more willing to reach agreement with their liberal colleagues than maybe other members of the court are.

20:34Alex Ebert:And you mentioned a Clinton appointee who does a lot of dissents. Yes, James Dennis. He is a senior member of the court. He only went senior a few years ago. And, you know, he's been on the court for decades once again. And right now, he's sort of viewed as one of the big dissenters on the court. And, you know, one lawyer I spoke to who regularly looks at Fifth Circuit opinion says that seems to be a role that Judge Dennis sort of relishes because, you know, it helps develop the law. You know, even if your dissent isn't the controlling opinion, maybe it raises the issue to the Supreme Court. Maybe it flags it to another circuit.

21:12As they're considering a case, you know, it's still a way to be vocal, even if your point of you isn't the winning one.

21:19Alex Ebert:Now, the cases that you mentioned in the beginning are headed to the en banc panel, so they could be reversed? Yes. So when the Fifth Circuit takes up a case en banc, they actually vacate the lower panel opinion. So all those rulings have actually already been tossed out by virtue of the cases being re-heard. So whatever the en banc court decides will be the holding opinion for all of those cases. And, you know, it's interesting, the Fifth Circuit has a rule that if a senior judge was on the panel that heard the case in the first place, then they can sit on the en banc court alongside all the active judges, which are typically the members of that full panel.

22:00So it sort of changes the composition a little bit, because you might think, oh, I have, you know, eight stalwart conservatives, and they're going up against, you know, six to eight other moderates or liberals. And, you know, I'm going to have to focus on this judge or that judge to sort of win them over. But if you have a senior judge, then maybe that moderate pool expands a little bit more than you thought it would. And that sort of changes the calculus for lawyers who are arguing before the full Fifth Circuit.

22:31Alex Ebert:To what do you attribute the spike in en banc cases? You know, a lot of them are hot button issues. I mean, we're talking about some of the really social, you know, quote unquote, culture war topics that are coming up right now. You know, the Fifth Circuit during the Biden administration was a hotbed of litigation. They sort of lost that since so many cases are now going to the First Circuit or the Fourth or the D.C. Circuit. You know, this is an opportunity for them to weigh in on these really important topics. you know maybe as fewer of those cases are going through that circuit i don't know this for a fact but maybe there's more of an appetite for taking on those sorts of cases and being able to weigh in on those sorts of topics and i mean some of these judges are very vocal so they're not scared to weigh in on these issues either but you know especially if there's old precedent on the court that they want to change this is the opportunity for folks like the trump appointees to do that You know, if that's happening in the First Amendment space, like in the Ten Commandments case, you know, that's something that they'll be able to, you know, shape moving forward.

23:41And then, you know, if it goes up to the Supreme Court and they adopt that philosophy, well, then that's national precedent that they were able to have a role in playing and making sure that plays out that way.

23:52Alex Ebert:You quoted from Senior Judge Edith Brown Clement in 2019 saying that Mississippi simply had the poor luck of drawing a majority minority panel in seeking a stay in a voting rights case. Is it stated or unstated that there is this political element where the Democratic appointees are more liberal and the Republican appointees are more conservative generally? You know, I think judges are sort of reluctant to put a label on like that. And I think some practicing lawyers before the court are at least publicly reluctant to do that sort of thing as well. So, you know, I think folks like Edith Brown-Kleman have no issue in putting that forward.