Petition for Writ of Certiorari — Tasha Mercedez Shelby, Petitioner v. Mississippi

et eee

Serial: 249068

IN THE SUPREME COURT OF MISSISSIPPI

No. 2015-M-01145

TASHA MERCEDEZ SHELBY F I L E D Petitioner

y. OCT 16 2023

OFFICE OF THE CLERK

STATE OF MISSISSIPPI SUPREME COURT Respondent

COURT OF APPEALS

ORDER

This matter is before the panel of Randolph, C.J., Ishee and Griffis, JJ., on the Motion

for Leave to File Petition for Post-Conviction Relief in the Trial Court filed by counsel for

Tasha Mercedez Shelby. Also before the panel is the Motion of the George C. Cochran

Innocence Project for Leave to File a Brief as Amicus Curiae. The panel finds that the

amicus brief should be accepted for filing.

After due consideration, the panel finds that Shelby’s previous petitions for postconviction relief have ultimately been denied and that the present filing is successive. Miss.

Code Ann. § 99-39-27 (Rev. 2020). The panel further finds that the petition is untimely.

Miss. Code Ann. § 99-39-21 (Rev. 2020). Notwithstanding the bars, we find that Shelby has

presented no arguable basis for her claims and that the petition should be denied. See Means

v. State, 43 So. 3d 438, 442 (Miss. 2010).

IT IS THEREFORE ORDERED that the Motion of the George C. Cochran Innocence

Project for Leave to File a Brief as Amicus Curiae is granted.

1a

IT IS FURTHER ORDERED that the Motion for Leave to File Petition for Post-

Conviction Relief in the Trial Court filed by Tasha Mercedez Shelby is denied.

SO ORDERED, this the [ Cy of October, 2023.

MICHAEL K. RANDOLPH, Pfee JUSTICE

NM

2a

Electronic Document Nov 1 2023 11:42:52 2015-M-01145 Pages: 1

Serial: 249235

IN THE SUPREME COURT OF MISSISSIPPI

No. 2015-M-01145

TASHA MERCEDEZ SHELBY Petitioner

v.

STATE OF MISSISSIPPI Respondent

ORDER

This matter is before the undersigned Justice on the Motion for Reconsideration

and Clarification of Order filed by counsel for Tasha Mercedez Shelby. Shelby seeks

reconsideration of the denial of her most-recent petition for post-conviction relief.

Reconsideration is not permitted by M.R.A.P. 27(h). The undersigned Justice further

finds that clarification of the prior order is not necessary.

IT IS THEREFORE ORDERED that the Motion for Reconsideration and

Clarification of Order filed by counsel for Tasha Mercedez Shelby is denied.

SO ORDERED.

DIGITAL SIGNATURE

Order#: 249235

Sig Serial: 100007802 ia, bt Diboe

Org: SC

Date: 11/01/2023 David M. Ishee, Justice

3a

ALABAMA

DEPARTMENT OF FORENSIC SCIENCES

P.O. BOX 7925 2451 FILLINGIM ST.

MOBILE, ALABAMA 36670 MOBILE, ALABAMA 36617

FACSIMILE (334) 470-6816

(334} 471-7026

REPORT OF AUTOPSY

CASE NO.: 01(A)-97MB-84637 | DATE/TIME: June 1, 1997 at 1030 hours

COUNTY: Mobile

DECEDENT: Bryan Thompson, IV

AGE: 2 SEX: Male LENGTH: 36 inches WEIGHT: 27 pounds

FINAL ANATOMIC DIAGNOSES

‘I. Multiple blunt force injuries. ase

A. Head. ORS

1. Multiple contusions to the scalp=.

B. Subdural hematoma. 5

C. Massive cerebral edema. > {

II. Status post harvesting of organs for transplantation.

A. Heart, liver, spleen, kidneys and adrenals.

CAUSE OF DEATH: Blunt force injuries to the head

MANNER OF DEATH: Homicide

Page 1 of 5

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Page 2 of 5

Case No. 01(A)-97MB-84637

AUTHORIZATION: Act 87-525

IDENTIFICATION:

PERSONS PRESENT: Ms. Poellnitz, Ms. Littles

EVIDENCE: Seg DFS 1 Form.

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CLOTHING: None.

PERSONAL EFFECTS: None.

EVIDENCE OF TREATMENT AND HARVESTING OF ORGANS: An orotracheal tube is

present in the left side of the mouth and a nasogastric tube in the left nares. Vascular lines are

present in the region of the right radial artery, the right femoral region and on both ankles. A

Foley catheter is in place. Anteriorly, a 12 inch long recently sutured surgical incision extends

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DISTINGUISHING FEATURE AND SCARS: An 8 inch long semi-circular hypopigmented

scars measuring up to 2 inches in width begins at the gluteal fold on the right buttock and extends

laterally and then inferiorly. A skip region is present and then a 3 inch zone of similar scar is

present over the posterior lateral portion of the right thigh. Another skip zone and a 2 inch zone

are present on the right calf and a 3 inch zone over the lateral portion of the right foot. A small |

inch scar is present on the anterior surface of the right knee.

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EXTERNAL EVIDENCE OF TRAUMA: A 1/4 inch blue contusion is present on the mid

portion of the left forehead. A 1 1/4 inch irregular oval blue-green contusion extends from the

nasolabial fold over the right cheek. Lateral to this at the outer portion of the right orbit is a 3/4

inch blue-purple contusion and then another small 1/8 blue-purple contusion on the outer portion

of the right eyebrow. Posteriorly in the left scapula region is a 4 inch pale blue contusion and in

the mid-line over the lumbar region a 4 inch in greatest dimension contusion. Recent blood is

present beneath these latter two.

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NOSE: The nares are patent. No injury. =

Page 3 of 5

Case No. 01(A)-97MB-84637

Over the buttocks and left thigh are zones where the skin is bluish, an incision is made but no

hemorrhage is present beneath these. A one inch in greatest dimension green contusion is present

on the lateral surface of the left thigh. Hemorrhage is present beneath this. A small 1/4 inch bluepurple contusion is present on the medial surface of the left knee. A hyperpigmented region is

present on the posterior surface of the right shoulder but no hemorrhage is present beneath this.

EXTERNAL EXAMINATION

The body is that df a normally developed, unembalmed, Caucasian male appearing the reported

age of2 years, *

—

The following measurements are made: Head circumference - 52 % cm, chest circumference -

44.5 cm and abdomen - 36.5 cm. .

HEAD AND FACES: The scalp is covered with 4 inch long brown hair. The injuries have been

noted. :

EYES: The cornea has been removed and the vitreous humor is pouring out of the eyes. The

irides are brown; the pupil diameter is impossible to tell.

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EARS: Normally set. No injuries,

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ORAL CAVITY: Natural deciduous teeth are present. No injuries are present.

NECK: Symmetrical, no injuries.

CHEST: The chest is slightly asymmetrical due to the surgical incision. :

ABDOMEN: The abdomen is scaphoid and has a surgical incision as noted.

EXTERNAL GENITALIA: These are of a male child. Both testes are in the scrotal sac.

LOWER EXTREMITIES: Injuries and treatment as noted. All digits are present.

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Page 4 of 5

Case No. 01(A)-97MB-84637

UPPER EXTREMITIES: Injuries and treatment as noted.

BACK: The symmetrical back has the injuries as noted.

INTERNAL DESCRIPTION

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SCALP, SKULL, AND CENTRAL NERVOUS SYSTEM: Over the occipital region of the scalp in

a zone 4 4 inches in the transverse dimension by up to 3 inches in the vertical dimension is a large,

dark red-brown h¢morrhage which is partially subgaleal. In the left frontal region corresponding to

the small contusion noted, externally is a 3 % inch zone of dark red-blue to brown contusion.

Another small 1/4 inch contusion is present in the right frontal region of the scalp. The bones of the

skull are-intact. An estimated 30 mg of dark purple congealed subdural hematoma covers the Jateral

convexity of the right cerebral hemisphere and also a thin subdural is present beneath the right

temporal lobe. The dura mater is stained red to red-purple but has no organization. The 1,410 gram

brain is massively edematous with swelling of the gyri, compression of the sulci, herniation of the

uncinate process of both temporal lobes and frank necrosis of the cerebellar tonsils. The brain is fixed

and an addendum will follow.

ORGANS OF THE NECK: The skin is intact. The strap muscles have no injury. The hyoid bone,

the cartilages of the larynx, and the cervical vertebral column are intact. The airway contains an

endotracheal tube. The neck is incised posteriorly and the posterior elements of the spinal removed.

Subdural hemorrhage is present along the’eéFvital cord but no contusions are present per se’.

SUBCUTANEOUS TISSUES AND BODY CAVITIES: An incision is made from the occipital

prominence inferiorly to the sacrum posteriorly. Hembrrhage is present around the contusion over

the left scapula and also in the mid-line over the lower thoracic upper lumbar region. No other zones

of contusion are present. Anteriorly, the skin is reflected and there are no contusions present. The

sternum has been split and the abdomen open for harvesting organs. The only organs remaining

within the body are the gastrointéstinal tract including esophagus, stomach, duodenum, small and

large intestines, both Jungs, the bladder and genitalia. A small segment of thoracic aorta is also

present.

RESPIRATORY SYSTEM: The 69.3 gram right and 60.9 gram left lungs are atelectatic. The pleural

surfaces are a variegated very pale pink to darker lavender in the more dependent zone. On the

posterior surface of the upper lobe of the right lung are two small 4 to 5 mm zones of dark purple

hemorrhage. The pulmonary arterial tree is free of lesion. The bronchial tree contains thick mucous.

On section the parenchyma is collapses a variegated pale gray-pink to dark lavender.

The segment of aorta is unremarkable. As noted above, the heart, liver, spleen, both kidneys and

adrenal glands are surgically absent.

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Page 5 of 5

Case No. 01(A)-97MB-84637

MACROPHAGE LYMPHOCYTIC SYSTEM: Two small | cm in diameter accessory spleens are

identified. These have no gross lesions.

GASTROINTESTINAL TRACT: The esophagus has no lesions. The stornach contains a few

milliliters of bile stained fluid. The mucosa is edematous but has no other lesion. The duodenum

contains bile stained fluid. The remaining portion of the gastrointestinal tract is edematous but has

no other gross lesions.

The vermiform appendix is identified.

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UROGENITAL SYSTEM: The bladder has no lesions, The prostate gland is that of a male child.

EYES:_The orbital plates are removed. Hemorrhage is present along the nerve sheaths of both optic

nerves and then small hemorrhages are present in the surrounding tissue. The globes are collapsed

from removing the cornea. The upper lid of the left eye is inadvertently incised. This is sutured.

te ke Uf vtelchea 3)

LeRoy Riddick, M.D.

State Medical Examiner

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FHE FRONT OF THIS DOCUMENT

Attachment ALABAMA

Center for Health Statistics

1S PINK - THE BACK OF THIS DOCUMENT IS BLUE AND HAS AN ARTIFICIAL WATERMARK.- HULD AT AN ANGLE TO VIEW

Page 2 of 2

Amendment No. 052342

ALABAMA. ;

Supplemental Medical Certification

This Supplemental Medical Certification replaces any Medical Certification shown on previous

pages for the record identified below.

INFORMATION FROM ORIGINAL RECORD: Certificate No. ] 99 7-20205

Name Bryan E, THOMPSON IV Date of Death June J, 1997

County of Death Mobile File Date June 25,1997

PARTI. CAUSE OF DEATH Ever te cham of evarts.-ciseases, injures. of Campicaiinns-that Grecity coused tha deals DO NOT antar teunmal ovens sud) as Gauhac Auproxunate inte rvat

arraat respicatory afrast of ventriculae libedfation without showing the stiology. Enier only ane couse or 6 Ine + : Onset to death

IMMEQIATE CAUSE :Fieat { Ee | ' h He 1atIoy

GIS AL OF COTIGHIONY ree > a _Cavedva c bING wt nt A i —__—_——

resulting in death; re _ Que ig {or a3 2 cons > a +

Sequentiaily tel condivans, b ¥ pexic “ cep o» e Pa =

if any, Jaadhng to ihe cause Bue to for as a cons Quence of} *

isted on une 2 Enter the Fi °

UNOERLYING CAUSE en SC i Zeve- (ovate ee _

thisesse of inpery (hal Due to (or am a consequence of]

inipalad tre evaras tesuling

1 death} LAST g -_ Cine cocnnemnyy

PART Il, Enier other sigaificant carcstons controuting (6 death but not lung n tre undertying cause gran in PART |. MANNER OF DEATH

U Naural CG Horexie pe Kcions

Ost me cud 15) Jesost Trauma o t 4 Cb Pending invesigaton “UJ Sorte LU Undatamured

DID TOBACCO USE CONTRIBUTE TO DEATH? IF FEMALE =) Not pregnant within past year = Pregnant at time ofdeath = Not Pregrant, but pregnant mite 42 days of death

DO Yas C Probabty RM C Unkeown & Not pregnant, but pregnant 43 days to { year before death C Unknown if pregnant shin ine past year

DATE OF INJURY iAfonth. Day. Year} TIME OF tNJURY PLACE OF INJURY (a.g Decedent's home: canstructon tite: INZURY AT WORK?

7A restau, wooded 2 L. Yes f

Vv. 30 Iqar? | 3i3¢a.m COALS

LOCATION OF INJURY: 1Streat or RFD No City ar Town County State) IF TRANSPORTATION INJURY, SPECIFY

{ va ' 7 0 OrverOpernioar = Passenger 0 Pad

34s (appre Beyry y 34 , i) 1tOXt H S ‘ © Omer Speaty)

CESCRIE HOWINJURY OCCURRED. - ” AUTOPSYITOXICQZOGY PERFORMED? WERE FINDINGS COMBIDEREO?

Autopsy s UNo Ut Unknown Autopsy On, ~! No

i Tomeolegy hs © No U Unknown Toxxalogy 4 L No

A Rey Riddick nop 6 |i3[z018

SIGNATURE OF CERTIFIER DATE SIGNED

The above Medical Certification as provided by the certifier is hereby made a part of the record concerned.

Done this 20th day of June, 2018

By __ Shayla Santiago

Recording Clerk

ADPH.-HS-9 l/Rev, 3-03

This is an official certified copy of the original record filed in the Center of Health

Statistics, Alabama Department of Public Health, Montgomery, Alabama. 2018-305-584-1

9a Mecote OM fieshunng

titra ON 2niR

E-Filed Document Apr 28 2023 13:30:39 2015-M-01145 Pages: 47

IN THE CIRCUIT COURT OF HARRISON COUNTY, MISSISSIPPI

SECOND JUDICIAL DISTRICT

No. 2015-M-01145; No. 2000-KA-01763-COA: Cause No. B2402-98-041

TASHA MERCEDEZ SHELBY, Petitioner

v.

STATE OF MISSISSIPPI, Respondent

AMENDED PETITION FOR POST-CONVICTION RELIEF

10a

HARES O18 (09 210), ae a a a ee ear 4

PROCEDURAL HISTORY cardeiacece ee eed 7

PS UREA PRIN ESM a cnc pi ew cS teal ee lp pt a a RENE BS ae ceacnnc tc 7

B. Ms. Shelby’s 2015 Post-Conviction Petition...............::::cccseseseessseserersrsnseresesceencesnesanenseseneseseacensaees 8

PRESERVATION: OF: SSUES wccicess sconadtincieincaaciean eee eem cacaeets 10

TID. JURISDICTION 20.0...cccccccecccccscsstensssesssesnesesnssuesesssssessseesssseuesusnsneansenenensncsnsnseneneeussesneneancaneneenensenesnanens 10

IV NEWLY DISCOVERED EVIDENGE iicctecete meee ae ee 10

ViSTATEMENT: OF FAGUIS. sovcesstirsiesisestestagnrecaansnstacaouiivaincsomtadessiieranscunneninrpiin 11

Pris Pec rine ad ic as i eSSSt B St B See et eenac Swieues 11

Bh May 295 ESSE extnck Ry SE TE ceca ccccass acearntetaaea i lat epee cepa as et aca ns cease pi 12

C. The Medical history of Bryan Thompson IV ...........c:cscssseessesnesesecencssesesessseneasessntsevenenesnterseneneaeess 13

D. The diagnosis of Shaken Baby Syndrome is both flawed generally, and inapplicable to the

current case — yet was accepted at the time Of trial. 0... ceesessenesseseseeeeesseuenessseueueanseneanenens 15

1. Historical origins of the Shaken Baby Syndrome diagnosis..............c0:-cscsserresesseeneneseesrseeen 17

2. Serious questioning of SBS begins after Ms. Shelby’s trial in 2000. .....cccccccccceeseeeeeseees 19

hd NC) 01, 1S [etnenesedenn one nono Ene ANS ROR NN Roce NCO oR RO ORR RLY, ERA MOEN RRR RSI 22

A. The 2018 amended death certificate saying Bryan IV’s death was accidental, caused by a

seizure, and not the direct result of blunt-force trauma to the head, is admissible, newly

discovered evidence that would likely produce a result different from the first prosecution of

el = | ~, | nh a Ey ay Fe POR Re am ERE NN SALSPSAED cD AY OSS URAC REE Wy PETE CR Ty SAVE 22

1. The 2018 amended death certificate is necessarily newly discovered within the meaning

Of Miss. Code Ann, § 99-39-58. oooocccccccccccesesssssesessseeecsessssssessenesnsssuesuesesssencacsesneaeessueaseneseansanecanenees 22

2. Under well-established precedent of this Court, the 2018 amended death certificate is

automatically admissible as a vital statistic under Mississippi Rule of Evidence 803(9).......23

3. Under well-established precedent of this Court, the 2018 amended death certificate is

substantive evidence that Bryan IV’s death was accidental, caused by a seizure, and not the

direct result of blunt-force trauma to the head; a capital murder prosecution or conviction

would not stand based on this newly discovered CVidence.............cesecseseseseseseeenenenesetessnenrseaesess 24

4. Ms. Shelby’s claim based on the 2018 amended death certificate is not barred by res

BOURNE cass sss wtp nce en tte pr ep eben tad vce seen Spies ena ab esp AGA NEMA 25

5. Ms. Shelby’s life sentence without the possibility of parole is based on inaccurate

information;that sentence almost certainly would have been different—at the very least, it

11a

certainly might have been different—had Ms. Shelby’s jury known of the 2018 amended

death certificate; her sentence therefore violates the Due Process Clause of the Fourteenth

AMENAMERL,. 000... ceessccsesesssscsecssescsessscsarsescusesesaesessesssseusceesssescscsccsuseseessessesaacstecesereceececsusaneacessessasanene 26

6. Two of the jurors who voted to sentence Ms. Shelby to death would have acquitted her,

_

had they known about the amended death certificate. 0.00... ccceccsesseeceseseeeeecscseseeeeeseseaeeees 27

B. Ms. Shelby is entitled to a new trial because of newly discovered, contradictory testimony

by the state’s expert, Dr. Scott Benton, when comparing his testimony at Shelby’s hearing and

his testimony as a defense expert, which demonstrates that Petitioner’s due process and equal

protection rights were Violated. oc sssscscsssecteecsencsensssnsnenssencensnarscseesesnsseseaesensnsseeeceaeseneseeseeneeees 29

1. Dr. Benton was the only state witness to testify at the Post-Conviction Relief Hearing in

support of the state’s theory that Tasha Shelby killed Bryan by shaking him to death; his

unreliable testimony violated Petitioner’s due process rights. ....0..cccccssesseesesesteteeeseeereeenees 29

2. An in-depth Mississippi Today Investigative Report questions Dr. Benton on “how his

decisions can tear families apart,” with his false accusations Of abUSE. ............cccceeeceeneeeeees 31

3. Testimony Benton gave as a defense expert on behalf of defendant Mixon would have

supported relief for Tasha Shelby at her Post-Conviction Relief hearing. ...........0...c cece 32

4. Dr. Benton gave contradictory testimony about seizures in Mixon’s case as an expert

witness — testimony that would have supported a finding Bryan IV suffered from seizures. 33

5. Dr. Benton gave contradictory testimony about subdural hemorrhages (brain bleed) in

Mixon’s case as an expert witness, conflicting with his testimony in Shelby’s case. ............. 34

6. The Harrison County Circuit Court denied relief to Ms. Shelby based largely on Dr.

Benton’s testimony at the Post-Conviction Relief hearing. 2.0.0.0... ccceeceeeeeeeceeteeeeteeeteeeeeeeeeee 35

C. Ms. Shelby is entitled to a new trial because a juror withheld crucial information that he

was the great-uncle of the deceased child and new about the child’s death, denying Tasha

Shelby a fair triah. ccc eessescsssesessseesesssssseensesessesescsnesnenesseeenensasassessisssasaessseseceaneacarsesnsnenssesaeasseaneeees 36

D. Ms. Shelby’s petition is not time-barred and meets the statute of limitations to file for post-

CONVICTION FE] Cf. ccc ecscsecesssescesecesssesencseseseseeccesseseseeeseseseseseseseeeersesssssscaeessnsasssaeesesseceasseseeeseenseseeases 40

I. Newly discovered evidence of the amended death certificate for Bryan Thompson IV is

properly filed within the statute of limitations. 0... ees eeesesecececeetsecececeeeeecneateeesssseteessenenteeses 41

2. Newly discovered evidence about Dr. Scott Benton’s testimony ts properly filed within

the statute of Himitations. 0.0.0... teteceseecsesessesesnscseereacaesnsncesseseseensussssesssssnsnssescacsesnessersnenssseteeereneess 41

3. Newly discovered evidence about Juror Mullen is properly filed within the statute of

LUIMEALIONS, oo... cceeseccseseseceseceeeeccscecesscsencsssusuesscecseseuescseneseasseseaesssuseseassesuauseueatscaeasseesacsessegeneseseseneasaeeees 42

F. Ms. Shelby is factually innocent, and no procedural bar should stand in the way of any of

her claims for relief. oo... cecessssessssssseseseesecsesenvenecerssseseseensacesenssesusaeseesssesessensaeeecsneeeacnvensauenseesnenteaseneeess 43

CONCLUSION (0. ceeeccceeeeeesesecetseseseenerecneracsccneeneesseevssssusesecacsusatssesecesessseersseaeansenesuessessicesencastredeentateceeass 47

12a

PETITION FOR POST-CONVICTION RELIEF

COMES NOW, TASHA MERCEDEZ SHELBY (“Ms. Shelby” or “Petitioner”), through

undersigned counsel, pursuant to the Mississippi Uniform Post-Conviction Collateral Relief Act,

Mississippi Code Annotated § 99-39-1, et seq., and asks this Court to vacate her conviction.

INTRODUCTION

In 1997, Bryan IV, the two-and-a-half-year-old stepson of Petitioner Tasha Mercedez

Shelby (Ms. Shelby") fell from his bed. Ms. Shelby found Bryan convulsing on the floor and took

him to the emergency room at Biloxi General Hospital — a hospital she knew well, because she

had given birth via c-section and had tubal ligation surgery there two weeks earlier. Bryan IV

tragically died a day later.

For months, prosecutors waited for the medical examiner, Dr. LeRoy Riddick, to finish his

autopsy report and complete the death certificate: the manner of death, Dr, Riddick then said, was

homicide. Abuse was the only possible cause of death. (TT 346; 32; 375.) Prosecutors then charged

Ms. Shelby with capital murder based on child abuse.

At trial in 2000, both the state and defense experts agreed and testified that the child died

from abuse, specifically Shaken Baby Syndrome/Shaken Impact Syndrome (“SBS” or “SIS”’)

(shaking and impact). Both the state and defense experts agreed that the child died as a result of a

“violent act” and not a short fall. (TT 523.) Based on this evidence, a jury found Ms. Shelby guilty.

The judge gave the jury only two sentencing options: death or life without parole. The jury

sentenced her to life without parole.

Ten years earlier, in 1990, a jury convicted and sentenced Sabrina Butler to death in

Columbus, Mississippi for allegedly killing her baby boy through shaking and impact. Butler v.

State, 608 So. 2d 314 (Miss. 1992). Ms. Butler's conviction was reversed and, at her second trial

in 1995, the baby’s injuries were readily explained as resulting from CPR, and the baby’s death

was due to a rare genetic kidney condition. Ms. Butler was acquitted. In 2021, the Hinds County

Chancery Court finally amended her baby's death certificate to no longer read “homicide”

as the manner of death.

13a

On June 18, 2018, Dr. Leroy Riddick filed an amended official death certificate for Bryan

E. Thompson IV with the Alabama Center for Health Statistics, at the Alabama Department of

Public Health. (Ex. A, Amended Death Certificate for Bryan Thompson IV.) This death certificate

crucially changed the manner of death from “homicide” to “accident.” It also recognized the

cascade of events that led to Bryan’s death: cerebral edema with herniation, hypoxic

encephalopathy, and seizure disorder. The death certificate describes how the injury occurred: a

fall. This directly contradicted Dr. Riddick’s expert testimony that the jury heard at trial. (TT 423-

424.) Falsely changing a death certificate is a felony offense, and Dr. Riddick would also have lost

his medical license.

Yet unlike Sabrina Butler, Ms. Shelby remains incarcerated 25 years after the tragic

accidental death of her stepson, because the trial court dismissed the expert’s new opinion as a

recantation and “harmless error” that was not newly discovered evidence. (Ex. S, Trial Order Den.

Tasha Shelby’s Mot. for PCR 2018.) The trial court did not, and could not legally consider,

the amended death certificate, which was filed after the post-conviction hearing, in June

2018. The amended death certificate was not part of the petition that the trial court had permission

from the Mississippi Supreme Court to review.

Instead, the trial court relied on the state’s only witness and expert at the post-conviction

hearing: child abuse pediatrician Dr. Scott Benton. Shelby v. State, Order, No. 24C12:16-cv-0114

(Cir. Ct. Harrison Cnty, Dec. 7, 2018) (Dr. Benton, after reviewing the entire case, opined that

there is no new evidence that would change his opinion as to the cause of death and that current

science supports the original conclusions from Dr. Riddick at trial.”). Dr. Benton has now provided

diametrically opposed testimony as a defense expert in another Shaken Baby Syndrome case,

culminating in that defendant’s acquittal. State of Alabama v. Michael Wayne Mixon, CC 2019-

2834 (Thirteenth Judicial Cir. Ct. Mobile Cnty, Alabama, Apr. 28, 2022). Had he presented this

same testimony at Ms. Shelby’s hearing, he would have demonstrated her innocence. A recent indepth investigative reporting series by Mississippi Today documents Dr. Benton’s problematic

testimony in Ms. Shelby’s case and his harmful testimony as a child abuse pediatrician across the

South. Mississippi Today investigation examines dangers of one doctor’s reign over child abuse

cases, MISSISSIPPI TODAY (Feb. 27, 2023), https://mississippitoday.org/shaky-science-fractured-

families/.

14a

Ms. Shelby presents this newly discovered evidence of the changed death certificate as

proof that she is innocent, and that her due process rights were violated by her being convicted and

sentenced based on faulty evidence. She further presents the newly discovered evidence of Dr.

Benton’s changed testimony as a further violation of her due process rights, and that the trial court

was misguided in its reliance on Dr. Benton’s testimony as the sole evidence to uphold Tasha

Shelby’s conviction.

Ms. Shelby has additional newly discovered evidence of her innocence and her wrongful

conviction at trial. A juror on Ms. Shelby’s capital trial, Danie] Mullen, was the great-uncle by

marriage of Bryan IV. The juror was related to the child and knew about the child’s death and its

circumstances before the trial began. During the trial and during jury deliberations, he knew that

the deceased was his great-nephew. (Ex. U, Aff. Juror Daniel Mullen 2022.) These factors violate

Ms. Shelby's constitutional right to due process and to a fair trial.

Ms. Shelby seeks relief from her unlawful confinement and requests that this Court vacate

Ms. Shelby’s wrongful conviction. No one ever observed Ms. Shelby harming or mistreating

Bryan IV. Ms. Shelby has never made any statements suggesting she harmed Bryan. She has

always given a consistent account about what happened the night Bryan collapsed: she heard a

loud thump in the room where Bryan was sleeping, ran into the room to find him on the floor

gasping for air, and immediately called her fiancé, Bryan’s father. Together, they both performed

CPR and rushed Bryan I'V to the hospital, where medics likewise tried to revive the child. Bryan

died a few days later.

This Petition asks this Court to vacate Ms. Shelby’s wrongful conviction and is divided

into six sections. The first three sections lay out the procedural history, the preservation of issues,

and this Court’s jurisdiction. The fourth section explains that this motion deals with newly

discovered evidence, specifically: (1) a death certificate finding the manner of death was accidental

and the cause of death was a seizure; (2) new evidence undermining the credibility of the state’s

sole witness against Ms. Shelby at her post-conviction hearing in 2018; and (3) and a juror who

was related to the victim, knew about the victim’s death before trial began, and had already, before

the trial heard about the cause of Bryan [V’s death. The fifth section explains the facts relevant to

this case. The sixth section explains why this Court should hold a hearing or vacate Ms. Sheiby’s

conviction.

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I. PROCEDURAL HISTORY

A. Trial and Appeal

Tasha Shelby was charged in an indictment returned January 29, 1998, by the grand jury

of Harrison County, Second Judicial District, with one count of capital murder under the Felony

Child Abuse Act, Miss. Code Ann. § 97-5-39(2), and in violation of Miss. Code Ann. § 97-3-

19(2)(f). The charge stemmed from the May 31, 1997, death of Bryan, the son of Ms. Shelby’s

fiancé, Bryan Thompson III, from a previous relationship.

The basis of the State’s case was Shaken Baby Syndrome coupled with a diagnosis of blunt

force trauma from which the prosecution inferred “shaken impact.” Dr. Riddick, the state’s

medical expert, testified that Bryan died from blunt force injuries to the head, and explained that

shaking a baby really hard can cause this kind of trauma.' (TT 420, 422-23.) Ms. Shelby entered

a plea of not guilty. For the past twenty-five years, she has steadfastly maintained her innocence.

The Circuit Court of Harrison County appointed attorneys Michael E. Cox and Donald A.

Smith to defend Petitioner against the charge. A jury trial before the Honorable Robert H. Walker

began in Harrison County Circuit Court on June 12, 2000. On June 15, the jury returned a verdict

of guilty. The following day, Petitioner was sentenced to life imprisonment without parole.

Ms. Shelby, through counsel,’ appealed her conviction to the Mississippi Supreme Court,

raising the following grounds:

1. Trial court incorrectly denied motions for directed verdict and new trial.

2. Evidence presented at trial was insufficient to support a verdict of guilty.

3. Trial court erred when it addressed the jury outside the presence of counsel.

4. Trial court erred when it replaced a juror with an alternate.

On March 26, 2002, the Mississippi Court of Appeals affirmed Ms. Shelby’s conviction.

Shelby v. State, 812 So, 2d 1144 (Miss. Ct. App. 2002). There was no oral argument and no

rehearing was requested.

' As explained more fully below, the expert, Dr. LeRoy Riddick, incorrectly inferred SBS from flawed

science that prevailed at the time of Bryan’s death and Ms. Shelby’s conviction.

* Petitioner was represented on appeal by Donald A. Smith, one of her trial attorneys. Mr. Smith passed

away in Ocean Springs in February 2008.

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On March 25, 2005, Petitioner, through Attorney Judson M. Lee, filed in the Mississippi

Supreme Court an Application for Leave to File a Petition for Post-Conviction Relief. (Cause No.

2005-M-00615). The grounds ratsed were:

I. Ms. Shelby’s court-appointed counsel rendered ineffective assistance such that she was

denied her right to a fair and impartial trial:

a. Trial counsel was ineffective in failing to investigate the case against Ms. Shelby

and present an adequate defense;

b. Counsel failed to object to the admission of prejudicial and irrelevant

photograph of the victim;

c. Trial counsel was ineffective by failing to ensure that the jury who tried Ms.

Shelby was impartial; and

d. Trial counsel was ineffective by failing to object to the prosecutor’s improper

comments in closing argument.

Notably, the petition included an affidavit from a medical expert addressing a large alleged

bruise spanning the lower back and buttocks of the child. The prosecution characterized this

discoloration as a bruise at trial. (TT 420; Ex. L, Dr. Leroy Riddick Autopsy Report; see also Ex.

U, Aff. Juror Daniel Mullen 2022 (“At trial, pictures were shown of Bryan’s bruises on his body.

] remember being told these bruises were due to Tasha shaking and hurting the child.”).) Yet the

mark is identifiable as a “Mongolian spot”’—similar to a birthmark. See, e.g., Dermal

melanocytosis, NAT’L LIBR. OF MED., https://medlineplus.gov/ency/article/001472.htm (last

visited Mar. 21, 2023). The Mississippi Supreme Court denied Petitioner’s Application for Leave

to File a Petition for Post-Conviction Relief on April 28, 2005.

B. Ms. Shelby’s 2015 Post-Conviction Petition

On July 30, 2015, Petitioner Tasha Shelby filed a Motion for Leave to File a Post-

Conviction Relief Petition with the Mississippi Supreme Court. The motion was supplemented on

January 12, 2016, with a one-page affidavit from Dr. Riddick. The motion was granted on August

8, 2016. Ms. Shelby filed the Petition for Post-Conviction Relief in the Harrison County Circuit

Court, and the Circuit Court held an evidentiary hearing on April 24—26, 2018. Ms. Shelby

presented as witnesses: forensic pathologist Dr. Janice Ophoven, bio-mechanic Dr. Kenneth

Monson, neurologist Dr. Julie Mack, and forensic pathologist and original medical examiner in

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the case, Dr. LeRoy Riddick. Dr. Riddick testified extensively at the hearing. The State presented

one witness, pediatrician Dr. Scott Benton.

On December 10, 2018, the Harrison County Circuit Court denied Ms. Shelby’s Petition

for Post-Conviction Relief. Ms. Shelby appealed; the Mississippi Court of Appeals heard oral

argument in the case on February 5, 2020. Amicus briefs were filed on her behalf by the

Mississippi Association for Justice, the Innocence Network, and the Center for Integrity in

Forensic Sciences. In a 5-3 split decision, the Mississippi Court of Appeals upheld the denial of

Ms. Shelby’s petition on August 4, 2020. Ms. Shelby filed a Petition for Writ of Certiorari to the

Mississippi Supreme Court, which the court denied on February 10, 2021. C. Ms. Shelby’s

Current Post-Conviction Petition

In June 2018, Dr. Riddick amended Bryan Thompson IV’s death certificate, changing the

manner of death from homicide to accident. He likewise changed the cause of death to “setzure

disorder.” The courts did not have leave to previously consider this newly discovered evidence

which, in any event, did not exist until after the Post-Conviction Relief Hearing in Spring 2018.

(Ex. A, Amended Death Certificate of Bryan Thompson IV). Petitioner is raising this newly

discovered evidence now that the previous state post-conviction litigation has concluded.

In July 2022, two volunteer law students from Great Britain met with the jurors who

originally convicted Ms. Shelby. They learned that one of these jurors, Daniel Mullen, was related

to the child Bryan. They also learned that Mr. Mullen knew of the child’s death before the trial

began. This information was likewise discovered by investigative reporter and Peabody Awardwinning journalist Andy Pierrotti, of Gray Television. Andy Pterrotti, Woman Convicted on

Controversial Medical Diagnosis Staying in Prison, ATLANTA NEWS FIRST (Feb. 9, 2023),

https://www.atlantanewsfirst.com/2023/02/09/woman-convicted-controversial-medical-

diagnosis-stay-prison/. Pierotti reported Mullen as saying about what he knew before the trial:

“And I remember that her nephew baby had died from shaking syndrome.” Jd.

In February 2023, an investigative journalism report by Mississippi Today exposed that

the state’s expert at the post-conviction hearing, Dr. Scott Benton, had provided conflicting

testimony across cases. Isabelle Taft, This Doctor’s Testimony has Helped Put People in Prison.

Some Say He Doesn’t Always Get it Right, MISSISSIPPI TODAY (Feb. 28, 2023),

https://mississippitoday.ore/2023/02/28/part-two-shaky-science-fractured-families/.

Ms. Shelby is now presenting this newly discovered evidence in her request for her

wrongful conviction to be reversed.

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Il. PRESERVATION OF ISSUES

The Mississippi Uniform Post-Conviction Collateral Relief Act (UPCCRA) requires a

post-conviction petitioner “to allege in his motion such facts as are necessary to demonstrate that

his claims are not procedurally barred under this section.” Miss. Code Ann. § 99-39-21(6).

Additionally, “[p]ost-conviction proceedings are for the purpose of bringing to the trial court’s

attention facts not known at the time of judgment.” Williams v. State, 669 So. 2d 44, 52 (Miss.

1996) (cleaned up); see also Miss. Code Ann. § 99-39-5, Under the UPCCRA, post-conviction

review “provide[s] prisoners with a procedure, limited in nature, to review those objections,

defenses, claims, questions, issues or errors which in practical reality could not be or should not

have been raised at trial or on direct appeal.” Miss. Code Ann. § 99-39-3.

Il. JURISDICTION

This Court reviews petitions for post-conviction relief pursuant to Miss. Code Ann. §§ 99-

39-1 ef seq. It has the authority to hold an evidentiary hearing under Miss. Code Ann. § 99-39-23

and to vacate the conviction under Miss. Code Ann, § 99-32-5.

IV. NEWLY DISCOVERED EVIDENCE

Ms. Shelby should have her conviction vacated or be granted a hearing. A petitioner is

entitled to relief when she can demonstrate: (1) that the new evidence was discovered since trial;

(2) that due diligence could not have discovered the new evidence prior to trial; (3) that the

evidence is material to this issue and not merely cumulative or impeaching; and (4) that the

evidence will probably produce a different result or verdict in a new trial. See Ormond v. State,

599 So. 2d 951, 962 (Miss. 1992) (“Newly discovered evidence warrants a new trial if the evidence

will probably produce a different result or verdict; further, the proponent must show that the

evidence has been discovered since the trial, that it could not have been discovered before the trial

by the exercise of due diligence, that it is material to the issue, and that it is not merely cumulative,

or impeaching”) (cleaned up); accord Hunt v. State, 877 So. 2d 503, 510 (Miss. Ct. App. 2004).

Ms. Shelby’s new evidence satisfies all four factors. First, Ms. Shelby discovered the new

evidence since trial—most of it in the past year. Second, due diligence could not have discovered

the new evidence prior to trial because this evidence either did not exist at the time of her trial (the

2018 amended death certificate and Dr. Benton’s conflicting testimony) or was not available

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because the juror did not disclose this information. Third, the new evidence is material to the claims

raised with respect to Ms. Shelby’s conviction and sentence. It is also not merely cumulative or

impeaching, because now-discredited evidence was the only evidence against Ms. Shelby. Fourth,

the new evidence will probably produce a different result in a new trial because the only evidence

against Ms. Shelby —-the medical evidence that purported to prove every element of the crime

has been thoroughly undermined by an amended death certificate and the changed testimony of

the State’s sole remaining expert, Dr. Benton. The newly discovered evidence set forth in this

Petition requires the reversal of Ms. Shelby’s conviction and sentence.

V. STATEMENT OF FACTS

A. Background

In May of 1997, Tasha Mercedez Shelby and her three-year-old son Dakota shared a home

in Biloxi with Ms. Shelby’s then-fiancé, Bryan Thompson III (who she later married), and his son

from a previous relationship, Bryan Thompson IV. (TT 313-14.)

Bryan was, at the time of his collapse and subsequent death, two and a half years old. He

was three feet tall and weighed approximately thirty-three pounds. (TT 420; Ex. C, Bryan

Thompson IV Medical Records.) Ms. Shelby is under five feet tall with an unusually short adult

height legally referred to as dwarfism.

In May of 1997, Ms. Shelby and Bryan III were expecting a child together. On May 14,

Ms. Shelby went into labor and was admitted to the hospital. (Ex. D, Tasha Shelby Hospital

Discharge Summ.) Later that day, she gave birth to a baby girl, Devin, via an emergency cesarean

section surgery. Doctors also performed a bilateral salpingectomy (removal of the fallopian tubes)

while she was in the hospital. Jd.

Due to these multiple surgeries, Ms. Shelby remained in the hospital for several days after

the birth of her daughter. On May 17, 1997, she was discharged with written instructions to refrain

from “straining down” and “heavy lifting,” and a prescription for pain relievers. Ex. D, Tasha

Shelby Hospital Discharge Summ. She was given instructions to return to the hospital on May 21

to have her stitches removed. Jd.

Prior to the events that gave rise to her conviction, Ms. Shelby had no criminal record, and

had never been charged with anything or even arrested. (TT 639.) There was no evidence presented

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at trial to suggest that she ever engaged in acts of abuse, neglect, or violence toward Bryan or

anyone else.

B. May 29, 1997 and May 30, 1997

At around 8:00 p.m. on May 29, 1997, Ouida “Honey” Schalk, Ms. Shelby’s grandmother,

arrived with her husband “Poppa” at the Shelby-Thompson home. (TT 354.) Honey and Poppa

would often have great-grandson Dakota, and sometimes Bryan, spend the weekend at their house.

(TT 352.)

After visiting with Ms. Shelby and the children for about an hour, Honey and Poppa left

with Dakota. (TT 353-54.) Bryan was given a snack of popcorn and lemonade and went to bed not

long after Honey and Poppa left. Ms. Shelby went to sleep at around midnight. (TT 372.)

During the early morning hours of May 30, 1997-——a time she estimated to be between 3:45

and 4:00 a.m.— Ms. Shelby was awakened by the sound of a “thump” from Bryan’s room. (TT

316; 320; 372.) Startled, she rushed into the room to find the child on the floor, convulsing and

gasping for air; he appeared to be having some kind of seizure. (TT 372.) Bryan was, in fact, prone

to such seizures. (Ex. E, Letter from Att’y John McDonnell about Thompson Family Seizures.)

Ms. Shelby immediately called her fiancé at the distribution plant where he was working

an overnight shift and asked him to come home and help her with Bryan. (TT 316.) Next, she

phoned the nearby hospital where she had just given birth and was advised to bring Bryan in. (TT

372.) While waiting for her husband to arrive, she performed CPR.

As soon as Bryan III arrived at home, he grabbed his son and also attempted CPR, which

he was not trained to perform. (TT 319.) Unable to revive the child, Bryan III and Ms. Shelby put

him and the baby in the van to go to Biloxi Regional Medical Center, which was only minutes

from their house. (TT 319-20.) In his rush to get his son into their van, Bryan IIT bumped Bryan’s

head on the car door. (TT 477; 481.)

Shortly after Bryan II] began driving to the hospital, his van was pulled over by Deputy

Patrolman Teddy Rose of the Harrison County Sheriff's Department. (TT 251-52.) Upon being

pulled over, Bryan III told Deputy Rose that he was speeding in order to get his son, who had

stopped breathing, to the hospital. /d@. Deputy Rose’s partner, Deputy Sheriff Bobby War, jumped

into the back of the van and also began to perform CPR on the child. Deputy Rose followed in his

car as the van continued on to the hospital. Jd.

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Deputy Rose testified at trial about his conversation with Ms. Shelby in the ER. Ms. Shelby

told Deputy Rose exactly what she had related to her fiancé when she called him at work: that she

heard a “thump” and rushed into Bryan’s room where she found the child on the floor, struggling

to breathe. (TT 253.) Ms. Shelby later provided a written narrative of the events of that evening to

Biloxi Police Officer Rick Dawson. In that written statement, she again described the events she

had witnessed that evening—hearing a thump sound, and finding Bryan on the floor gasping for

air. (TT 259; Ex. F, Statement Tasha Shelby Biloxi Police Department.)

After “aggressive airway management” and the administration of drugs, emergency room

personnel were able to establish a pulse and stabilize Bryan. The child, however, was brain dead.

(TT 270.) He was transferred to the University of South Alabama Medical Center in Mobile where

he was pronounced dead at 2:28 p.m. on May 31, 1997. (Ex. G, USA Diagnosis and Progress

Notes.)

C, The Medical history of Bryan Thompson IV

Bryan Thompson IV was born on November 21, 1994, to Angela Reynolds and her thenpartner Bryan Thompson III. (TT 313.) Bryan IV had a well-documented history of medical

problems including a family history of, among other things, seizures, asthma, and allergies. (Ex.

H, Bryan Thompson IV Medical History; Bryan Thompson IV Pediatric Admission Assessment

Record.)

Bryan experienced episodes of apparent neurological dysfunction and/or seizures; there

were times when the child’s eyes would seem to roll backwards in his head, and he would become

nonresponsive. Several family members observed these seizures, including Honey Schalk, who

told Investigator Newman that she thought she witnessed the child having a seizure on one

occasion, and Bryan III], who testified that he had seen his son’s eyes roll back in his head and

seem to “almost close” on several occasions. (TT 396; 344.)

Neurological disorders ran in the Thompson family. Bryan Thompson III’s mother,

Cynthia Ferrill, suffered from a seizure disorder, specifically, Atypical Absence Seizures. (TT 469;

Ex. E, Letter from Att’y John McDonnell about Thompson Family Seizures.) His uncle, Robert

Thompson, suffered from Primary Seizure Disorder. /d.

In addition to seizures, a letter from Bryan’s pediatrician notes his “history of recurrent

wheezing consistent with asthma since 8-9 months of age,” which he managed with a home

nebulizer (Ex. I, Letter Don H. LaGrone; Ex. K, USA Death Discharge Form.) In his two and a

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half years, he was treated multiple times for respiratory problems and was, on several occasions,

hospitalized.

In the weeks before Bryan’s death, family members noticed that something else seemed

wrong with the child’s eyes. Bryan III testified about a time, several weeks prior to the child’s

collapse, when “red dots” in Bryan’s eyes led Ms. Shelby and Bryan III to schedule an appointment

with a neurologist:

ATTORNEY SMITH: For some several weeks prior to May the 30th of

1997, in retrospect, you realize that you had seen [Bryan IV] with bloodshot

eyes, did you not?

BRYAN THOMPSON: Yes.

SMITH: And this had gone on for, I believe you told Mr. Cox and I, three

or four weeks?

THOMPSON: Yes.

SMITH: And had you sought medical attention for that for your son?

THOMPSON: Yes.

SMITH: And with whom?

THOMPSON: Dr. Siddiqui.

SMITH: Has he been to see Dr. Siddiqui for that?

THOMPSON: We scheduled him to see him for that. ] think he might have

been there for something else, and we asked him about it. We came back

again for that, but he recommended a neurologist.

SMITH: Okay. Had he been to see a neurologist before that?

THOMPSON: No. He had an appointment the week after. We would have

made it to the appointment seven days — he would have died seven days

prior to the appointment we were supposed to have.

(TT 336-37.)

Additionally, Honey Schalk testified she observed redness in the child’s eyes about a week

before his death. She noticed how, when Bryan would look up, the bottoms of his eyes would be

red. (TT 364). Honey described this to the police as “little dots of blood pooled up in his eyes.”

(TT 367).

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Lastly, Bryan Thompson IV was born with Mongolian Spots. These are essentially

birthmarks: flat, irregularly shaped spots that present on the back of the spine, buttocks, and back

of children. (Ex. J, Photo Mongolian Spots.) While not health problems themselves, these spots,

which range in color form blue-gray to dark brown, can often be confused with bruises. During

Ms. Shelby’s trial, the State’s medical expert, Dr. LeRoy Riddick, testified that Bryan “had a

[bruise] in the midline on his lumbar region, and he had another bruise on the outer portion of his

left thigh.” (TT 420; Ex. L, Dr. Leroy Riddick Autopsy Report.) A number of photographs taken

of Bryan make clear that these apparent bruises were, in fact, nothing more than birthmarks. (Ex.

J, Photo Mongolian Spots.) This is further supported by Dr. Riddick’s testimony that these

“bruises” did not have any hemorrhaging beneath. (TT 420.)

D. The diagnosis of Shaken Baby Syndrome is both flawed generally, and

inapplicable to the current case — yet was accepted at the time of trial.

There are serious questions as to whether Shaken Baby Syndrome is a valid theory

generally of causation. See Jones v. State, 2021 WL 346552 (Md. Ct. Spec. App. Feb. 2, 2021)

(extensively reviewing the recent scientific evidence, and granting writ of actual innocence); see

generally DEBORAH TUERKHEIMER, FLAWED CONVICTIONS: "SHAKEN BABY SYNDROME" AND THE

INERTIA OF INJUSTICE (2015). Even more alarming, there are similar doubts about specific

causation — whether the evidence in a particular case is sufficient to make the necessary connection

between an assumed shaking of an infant and his death.

As reported in Commonwealth y. Millien, the American Academy of Pediatrics 2009 policy

statement included the following: “Few pediatric diagnoses engender as much debate as [abusive

head trauma]... Controversy is fueled because the mechanisms and resultant injuries of accidental

and abusive head injury overlap, the abuse is rarely witnessed, an accurate history of trauma is

rarely offered by the perpetrator, there is no single or simple test to determine the accuracy of the

diagnosis, and the legal consequences of the diagnosis can be so significant.” 474 Mass. 417, 440

(2016) (alteration in court opinion).

Indeed, a meta-study, conducted under the auspices of the Swedish Government, concluded

that brain swelling and bleeding around the brain and bleeding around the eye, do not, as the state’s

forensic pathologist Dr. Riddick claimed at Ms. Shelby’s trial, reliably indicate that a child has

been shaken. See also Keith A. Findley et al., Feigned Consensus: Usurping the Law in Shaken

Baby Syndrome/Abusive Head Trauma Prosecutions, 2019 WIS. L. REV. 1211 (2019) (agreeing

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with the study, which reviewed more than 1000 papers, and its conclusion that the papers

supporting SBS were of “very low quality.”). In Supreme Court Justice Ginsburg’s 2011 dissent

in Cavazos v. Smith, addressing a conviction based on Shaken Baby Syndrome, Justice Ginsburg

wrote, "What is now known about shaken baby syndrome (SBS) casts grave doubt on the

charge leveled against Smith . .. . In light of current information, it is unlikely that the

prosecution’s experts would today testify as adamantly as they did in 1997.” 565 U.S. 1, 14 (2011)

(Ginsburg, J., dissenting) (emphasis added). Cavazos’ trial was the same year as Ms. Shelby’s

arrest. The majority did not disagree with Justice Ginsburg’s point, but reversed the lower court

decision on different grounds.

At the time of Ms. Shelby’s trial, both the prosecution expert and the defense expert agreed

that the child, Bryan, died from Shaken Baby Syndrome — shaking and impact. But since then, the

science has changed.

In 2000, the first sentence of the Government’s opening statement was this: “On May 30",

1997, Tasha Shelby shook a two-and-a-half-year-old child, Bryan Thompson, the Third, - - the

Fourth so violently that the child died the next day from those injuries.” (TT 243.) The Government

repeated this sentiment multiple times throughout trial,* and in its closing argument told the jury,

"Bryan Thompson, the Fourth, was violently shaken to death. That is undisputed. Even their

[defense expert] testified to that. He was violently shaken to death.” (TT 583.)

The SBS theory held that when an infant—usually a baby less than six months old

presented with three specific symptoms (retinal hemorrhage, subdural hemorrhage, and cerebral

edema), and there was no other explanatory cause, then the child must have been shaken to death.

3 Other noted examples in the trial transcript are as follows: “[Dr. Riddick] will tell you that in no way,

shape or form is this an accident. He will tell you that this is not from falling off a sixteen-inch bed or a

sixty-inch bed. He will tell you these injuries are comparable to a car wreck traveling at 35, 30 miles an

hour coming to a dead stop. He will tell you that this is no accident. It is a violent, violent shaking.” (TT

248: 11-17.) “Dr. Reddick [sic] testified that the child would immediately, and that’s critical, immediately

become nonresponsive. So if this mystery person would have shaken this baby so violently to tear its brain

from outside of its skull, that would have had to have happened, the child would have been nonresponsive

immediately.” (TT 585: 17-23.) “Number one, that child died from being violently shaken, an intentional

violent act.” (TT 586: 1-2.) “Bryan Thompson, the Fourth, could not defend himself. That is why this is

termed a capital murder case. When a baby is shaken to death, they can’t defend themselves, and therefore

the defendant is guilty of capital murder.” (TT 587: 5-9.)

25a

The history of the diagnosis is explained, in brief, below. Notably, Bryan 1V did not have retinal

hemorrhage. Indeed, the doctors allowed his eyes to be “harvested.” Also, he had only a small

subdural hemorrhage, misrepresented at trial as much larger. Thus, the only symptom of Shaken

Baby Syndrome Bryan IV had was cerebral edema, commonly caused by a lack of oxygen.

1. Historical origins of the Shaken Baby Syndrome diagnosis

From 1970 until 2001, medical doctors routinely determined that injuries similar to those

of Bryan were uniquely and exclusively attributed to shaking or Shaken Baby Syndrome. SBS

began as a hypothesis in the 1970s in an attempt to explain certain deaths of babies where the cause

of death could not be determined. This hypothesis was first posited by British pediatric

neurosurgeon Norman Guthkelch in a 1971 two-page journal article where he posited that vigorous

shaking of babies could cause whiplash-like injuries, including subdural hematoma. A.N.

Guthkelch, /nfantile Subdural Haematoma and its Relationship to Whiplash Injuries, 2 BRIT. MED.

J. 430 (1971). Dr. Guthkelch’s hypothesis was premised on a 1968 study of car-accident-like

whiplash on adult rhesus monkeys. See Ayub K. Ommaya, Whiplash Injury and Brain Damage:

An Experimental Study, 204 J. AM. MED. ASS’N 285, 286-89 (1968). Dr. Guthkelch compared the

rhesus monkey study with two of his own patients’ case histories where the babies had subdural

hematoma with no signs of head trauma and the caregiver for each admitted to shaking the patient.

He concluded shaking had caused the brain injuries.

This hypothesis that shaking could cause brain injury to young children expanded and

gained traction following the publication of two articles by pediatric radiologist John Caffey in

1972 and 1974, respectively. The first involved his review of patient case histories, mostly based

on patients discussed in a Newsweek article where a nurse confessed to abusing babies tn her care.

See John Caffey, On the Theory and Practice of Shaking Infants: Its Potential Residual Effects of

Permanent Brain Damage and Mental Retardation, 124 AM. J. DISEASES CHILD. 161 (1972). The

second involved comparing Dr. Caffey’s own data to that of the findings in the Ommaya rhesus

monkey study that Dr. Guthkelch relied on to support the hypothesis that subdural hemorrhages in

babies, without apparent external trauma, is caused by violent shaking. John Caffey, The Whiplash

Shaken Infant Syndrome: Manual Shaking by the Extremities With Whiplash-Induced Intracranial

and Intraocular Bleedings, Linked With Permanent Brain Damage and Mental Retardation, 54

PEDIATRICS 396, 400 (1974). Dr. Caffey concluded, “[M]anual whiplash shaking of infants is a

common primary type of trauma in the so-called battered infant syndrome. It appears to be the

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major cause in these infants who suffer from subdural hematomas.” While Dr. Caffey noted that

his conclusions were based on evidence that was “manifestly incomplete and largely

circumstantial,” he nonetheless called for an educational campaign against shaking babies.

Following these articles, advocacy groups like The National Center on Shaken Baby

Syndrome carried out Dr. Caffey’s suggestion to raise awareness about the supposed dangers of

shaking babies. This helped SBS to rapidly gain acceptance as the prevailing diagnosis when

certain symptoms were presented. See Edward J. Imwinkelried, Shaken Baby Syndrome: A

Genuine Battle of the Scientific (and Non-Scientific) Experts, 46 CRIM. L. BULL. 156 (2010) (“In a

relatively short time after Caffey’s enunciation of the theory, the theory became widely accepted

in both medical and legal circles.”); Ronald H. Uscinski, Shaken Baby Syndrome: An Odyssey, 46

NEUROL. MED. CHIR. 57 (2006) (“This widely proclaimed yet still hypothetical supposition has

become a virtually unquestioned assumption nowadays as a modality for causing inflicted

intracranial injury in infants.”). Physicians were then trained to diagnose SBS as the likely cause

of injuries whenever they observed what became known as the “triad of symptoms,” which are:

edema (brain swelling); subdural hematoma (bleeding in the brain); and retinal hemorrhaging

(bleeding in the eyes).

By the time of Bryan’s death in 1997 and Ms. Shelby’s trial in 2000, SBS was entrenched

in the medical and legal communities. The American Academy of Pediatrics endorsed it and

suggested that whenever a child younger than one year had intracranial injury and retinal

hemorrhages, child abuse should be presumed. See Am. Acad. of Pediatrics Comm. on Child

Abuse and Neglect, Shaken Baby Syndrome: Rotational Cranial Injuries-—-Technical Report, 108

PEDIATRICS 206, 206-10 (2001). The National Association of Medical Examiners (NAME) also

endorsed SBS as a reliable diagnosis. See Mary E. Case et al., Position Paper on Fatal Abusive

Head Injuries in Infants and Young Children, 22. AM. J. FORENSIC MED. & PATHOLOGY 112, 112

(2001). Almost no medical professionals were questioning the SBS diagnosis at the time of

Bryan’s death and Ms. Shelby’s trial.

Ms. Shelby’s counsel, Mr. Cox, told the court at the Post-Conviction Hearing, “If there

were witnesses available and medical experts that were going to give us valid opinions based on

science that it was able to be caused consistent with what Tasha’s testimony was, we certainly

would have availed ourselves of that.” (HT 32-33.) Mr. Cox said, “Tasha’s statement was that she

heard the thud, though, you know, it sounded like Bryan fell out of the bed, went in there, and |

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believe saw him gasping or his eyes rolled back and he appeared to be having seizures. That was

what her testimony was . . . her statement to the police. And that’s what — and that’s what she told

us as well.” (HT 29.) Yet he couldn’t find an expert who could scientifically support Ms. Shelby’s

statement, which has been consistent for over 25 years. (HT 32-33.)

2. Serious questioning of SBS begins after Ms. Shelby’s trial in 2000.

After Ms. Shelby’s trial, the medical community began to question whether SBS could

truly be diagnosed as easily as they had been led to believe. Dr. Jennian Geddes, a British

neuropathologist, published two papers questioning SBS. J.F. Geddes, et al., Neuropathology of

Inflicted Head Injury in Children I, 124 BRAIN 1290 (2001); Manoj V. Parulekar & John S. Elston,

Neuropathology of Inflicted Head Injury in Children I, 124 BRAIN 1299 (2001). Dr. Geddes

reviewed the findings of brain and eye damage in infants who were allegedly victims of

nonaccidental head injury, including shaking, and compared them to subdural hemorrhage and

brain findings in infants that died of natural causes. Dr. Geddes observed that the brain findings

and subdural hemorrhages were virtually identical. Based on her research, Dr. Geddes’s opinion

was that concluding shaking had occurred based on the presence of subdural hemorrhaging and

other symptoms to the exclusion of other causes “require[s] fresh examination.”

As time went on, other doctors in the field similarly questioned whether subdural

hemorrhaging, retinal hemorrhaging, and edema had other explanations. In 2001, John Plunkett, a

forensic pathologist, analyzed case data collected from the Consumer Product Safety Commission.

Dr. Plunkett observed that some or all of the triad injuries—which had historically been thought

to only occur with car accidents and Shaken Baby Syndrome—were also present in many

documented short-fall incidents. Plunkett’s research included one videotaped fatal fall of a twentythree-month-old toddler from a plastic gym that was twenty-eight inches high onto a carpeted

garage floor and resulted in retinal hemorrhages and subdural hematoma. John Plunkett, Fatal

Pediatric Head Injuries Caused by Short-Distance Falls. 22 AM. J. FORENSIC MED. PATHOLOGY |

(2001). Dr. Plunkett’s findings, like those of Geddes’, were initially met with skepticism, but that

changed over time. One forensic pathologist, Dr. George Nichols of Louisville, initially thought

Dr. Plunkett was a “first-class nut.” But after “reviewing the literature cited by Plunkett,” Dr.

Nichols “changed his mind” and “went to the other side.” See Dee J. Hall, Shaken Baby Case Back

After 10 Years, WISC. STATE J. (Jan. 26, 2007), http://host.madison.com/news/local/shaken-baby -

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case-back-after-years-witnesses-say-symptoms-in/article 2a02bc07-8c39-59a2-abee-

I td2el] led67.html.

In 2002, Dr. Ayub Ommaya, one of the authors of the 1968 rhesus monkey whiplash article

that served as the basis for the original SBS triad-of-symptoms hypothesis, published an article,

now with biomechanical expert coauthors, pointing out that Ommaya’s study involved rhesus

monkeys, not human infants, and that the monkeys were not shaken, but strapped into carts that

were impacted at various speeds to simulate car accidents. Ayub K. Ommaya, Biomechanics and

Neuropathology of Adult and Pediatric Head Injury, 16 BRIT. J. NEUROSURGERY 220 (2002). The

authors argued that Ommaya’s original work provided no basis for the development of a

hypothesis that became Shaken Baby Syndrome. The authors additionally posited that in order for

physical shaking to be sufficient to cause subdural and retinal hemorrhage, the shaking would have

to cause soft tissue injury to the neck and also cause spinal injuries. Additional evidence has

continued to undermine the previously unquestionable hypothesis that the traumatic brain injuries

in babies could only be attributable to car crashing and Shaken Baby Syndrome. These new studies

show that an adult cannot physically generate enough force by vigorously shaking a child to cause

was known as SBS. See, for example, Nicole G. Ibrahim, Brittany Coats & Susan S. Margulies,

The Response of Toddler and Infant Heads During Vigorous Shaking, 22 J. NEUROTRAUMA 1207

(2005).

In 2003, Dr. Mark Donohoe evaluated the literature on Shaken Baby Syndrome and Shaken

Impact Syndrome from 1966 through 1998. Mark Donohoe, Evidence Based Medicine and Shaken

Baby Syndrome Part I: Literature Review, 1966-1998, 24 AM. J. FORENSIC MED. PATHOLOGY 239,

241 (2003). After reviewing and categorizing 55 articles on Shaken Baby Syndrome, Dr. Donohoe

concluded that, based on these articles, “there was inadequate scientific evidence to come to a firm

conclusion on most aspects of causation, diagnosis, treatment, or any other matters pertaining to

SBS.”

Even Dr. Guthkelch, the original Shaken Baby Syndrome hypothesis proponent, has voiced

serious doubt about Shaken Baby Syndrome diagnoses. “If shaking is responsible for significant

damage to the central nervous system and its coverings, one must ask why the forces generated by

humans or laboratory machines shaking a dummy have so often proved insufficient to cause the

disruption of these tissues.” A. Norman Guthkelch, Problems of Infant Retino-Dural Hemorrhage

with Minimal External Injury, 12 Hous. J. HEALTH L. & POL’Y (2012). In a variety of forums, Dr.

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Guthkelch expressed his dismay at the way in which his original hypothesis led to the prosecution

of so many caregivers. “Every single case that I have been asked to review in the last few years

has had some sort of unrelated (unrelated to shaking that is) illness, congenital anomalies, seizures

since birth, recurrent otitis media [middle ear infection], efc.... What is being regarded as ‘plainly’

SBS...is a rag-bag of pathologies in which trauma is not (in my experience) prominent.”

Tuerkheimer, FLAWED CONVICTIONS, at 133.4

SBS advocates have said that shaking causes a baby’s brain to slide back and forth, which

in turn causes bridging veins around the brain to tear or rupture and, then, hemorrhage into the

subdural area overlying the brain. New knowledge about anatomy suggests this is unlikely. See

Waney Squier & Julie Mack, The Neuropathology of Infant Subdural Hemorrhage, 187 FORENSIC

SCI. INT’L 6, 12 (2009).

Similarly, shaking was believed to cause retinal blood vessels to strain and then burst,

causing microscopic retinal hemorrhages. And the real harm—the brain damage and swelling—

was believed to be caused by direct shearing of nerve fibers in the brain during shaking. This claim,

too, is outdated and incorrect; even vocal supporters of the SBS hypothesis now acknowledge that

the damage is more likely due to a lack of oxygen. See Mark S. Dias, The Case for Shaking, 2011

CHILD ABUSE AND NEGLECT, 364, 368 (2010).

At trial, the State made three essential contentions, all of which were supported by medical

expert testimony presented at trial: (1) Bryan’s injuries must have been caused by shaking and

some sort of intentional impact (TT 423: 5-17); (2) the shaking — or shaking and impact — must

have been inflicted with tremendous force, equivalent to that of a violent car accident, indicating

a deliberate design to kill (TT 423: 5-17); and (3) after the alleged abusive episode, Bryan became

immediately comatose, so the harm must have occurred while the child was in Ms. Shelby’s

exclusive care. (TT 275-76: 28-29, 1—2; TT 585: 17-23.)

Each of these contentions has been undermined in Bryan’s death by the change in science

and literature, which now indicates: (1) shaking is not as forceful as a fall and cannot cause the

rupture of bridging veins; (2) a brain bleed can occur days before a child’s collapse; and (3) the

4 As a result of this change in medical science, courts throughout the country have determined that the

change in science regarding SBS qualifies as newly discovered evidence and ordered new trials of prior

SBS convictions based on outdated medical science. See, e.g., Hill v. Mitchell, Case No. 19-cv-452, 2019

WL 1785485, at *4 (S.D. Ohio April 24, 2019); State v. Louis, 332 Wis. 2d 803 (Wis. Ct. App. 2011).

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