NPR Story
8:29 am
Tue December 4, 2012

Son Questions Mother's Shaken Baby Conviction

Originally published on Wed December 5, 2012 9:33 am

Transcript

MICHEL MARTIN, HOST:

I'm Michel Martin and this is TELL ME MORE from NPR News. They say it takes a village to raise a child, but maybe you just need a few moms in your corner and generally at this time, we check in with a group of parents who share their experiences and common sense advice.

Today, though, we're moving in a slightly different direction because we want to talk about something where the right expertise or lack thereof can have life-altering consequences. We're talking about shaken baby syndrome. Health experts say a very young child can be injured or even die from as little as five seconds of shaking. It's been seen as a leading cause of child abuse death in this country from head and neck injuries.

Such injuries are often a red flag for doctors and law enforcement and there are cases where parents or caregivers have been prosecuted and imprisoned for hurting children in this way, but now some researchers are saying that shaken baby syndrome is a more complicated diagnosis than we think and that other medical conditions might actually be implicated.

And we'll be honest. We started thinking about this because of Victor Zapana. His mother was convicted of shaking a child she was babysitting and causing injuries that left that child seriously disabled. Victor Zapana wrote about that experience in the article, "Shaken," for a recent issue of The New Yorker magazine. He's now a metro desk reporter for the Washington Post and he's with us now.

Victor, thanks for joining us.

VICTOR ZAPANA: Thank you for having me.

MARTIN: Also with us is NPR correspondent, Joseph Shapiro. He investigated shaken baby syndrome convictions, along with ProPublica and PBS Frontline. Joe, thank you so much for joining us, also.

JOE SHAPIRO, BYLINE: You're welcome.

MARTIN: Victor, I'm going to start with you. This is a very moving piece. It must have been very hard to write, especially because this is about your personal experience. I'm encapsulating a little bit, but you wrote in the piece that for years you were kind of caught in this conundrum. You didn't really want people to know that you were connected to this tragedy. So what changed that made you want to write about this?

ZAPANA: There is just so much more that we know about sort of how SBS cases are being prosecuted and how sort of things can go wrong along the way that I feel like we needed a little bit of a personal voice out there. No one has sort of come out and really tried to sort of talk about sort of what it's like to be part of one of the families involved in this case.

Secondly, I think it just broke me. It took me a long time to get myself at a point where I was sort of just functioning as a normal human being, and then afterward I thought I've just not been fair to friends. I've just not been fair to people around me and I just felt like I needed to sort of bring people back into fold, into my life and just sort of...

MARTIN: Because you were putting so much energy into not dealing with this or because this whole tragedy took up so much a part of your life.

ZAPANA: Actively avoiding it. I wanted to remove myself from the situation altogether. I wanted to - I use the word, drown out her name, which is very true. I just wanted to not think about it an, if I had to think about it, think about it quickly or figure out excuses not to think about it, and just introspection that was unhealthy at the end of the day.

MARTIN: Wasn't that part of it? Because you say this in the piece, you weren't sure whether to believe her or not. You really didn't know.

ZAPANA: I didn't. I was very young when it happened and apparently there were parts of this story that I had lived personally. I just didn't remember. Maybe I just blocked it out. I honestly had to sort of piece it together using transcripts and interviews with my family and all this. I just couldn't remember it.

There are some instances that I do remember after the fact, which looking at it now is actually kind of striking. I mean, I remember being interviewed by a social worker when I was in elementary school and I wasn't really sure what was going on. I remember sort of - there was a lot of sort of whispered talks here and there. I mean, there are just, you know, fragments that I just sort of...

MARTIN: Sure.

ZAPANA: ...can collect, but it doesn't really come to a whole complete picture.

MARTIN: I wonder - I want you to stand by and tell us a little bit more about that, but I'm going to turn to Joe Shapiro now. As we mentioned, you were part of an investigative team that looked into shaken baby syndrome convictions and you found some very disturbing evidence that, in fact, that there can be other medical conditions that are implicated here. Can you talk a little bit more about that? I'm also really interested in how you got interested in the subject to begin with.

SHAPIRO: Sure.

MARTIN: Because, as we were speaking about it earlier, you said this is actually very much a behind-closed-doors phenomenon. You know, it's just not something that people think about or want to talk about.

SHAPIRO: Fifteen years ago, child abuse was the sort of default assumption when a child was brought to a hospital and died and there was brain swelling. It was just assumed that the last person with the child must have - almost certainly was this perpetrator of this terrible crime. But now, in the 15 years since doctors and scientists have a better understanding that there are other things that can cause a child to suddenly die. It can be diseases, blood clotting disorders, things that can leave marks on the body that mimic signs of child abuse. So there's this changing understanding that what happens is more complex. In fact, when we did our series, a Canadian forensic pathologist told us it's not so much that the science has gotten better; it's that we now know that the things that we were certain of before that we can't be certain of them - things like time of death. It can be that the cause of a death is something that happened a day, a week or so in the past and that this thing lingers and then comes to this tragic end.

MARTIN: You reported on some very disturbing stories of cases where it just seemed as though the authorities were determined to prove someone guilty, even ignoring other people who may have been responsible or other medical concerns. And one of the stories that you wrote about was a Texas man named Ernie Lopez. This is where I feel I need to say that the circumstances around this child is that they're very, very disturbing. We're not going to go into, sort of, details about. But you had an interview with Ernie's mother, Rosa, and I just want to play that clip.

ROSA LOPEZ: He called me a couple of times telling me they were asking him lots of questions, and I said tell them everything, you know, and he said OK, I will. And then later on, my other son Eddie called me and I mean it just totally floored me. He told me that they had arrested Ernie and then our nightmare began.

MARTIN: What can we draw from that case? Is it that the authorities are so zealous to hold somebody accountable when a child dies that they ignore medical evidence, or that the medical evidence is so inconclusive? Or is it that - is this again another story about poverty? That if you don't, you can't afford a good lawyer then you're a sitting duck?

SHAPIRO: It's all three, those. Ernie Lopez said to us, a baby dies, someone's going to go to jail. I've read case files of dozens of cases around the United States and Canada, and we found two dozen cases where people had been convicted and that convictions later overturned. In Ernie Lopez's case, after we did our story, Ernie Lopez got out of prison earlier this year. And there was a pattern. Almost always these people were on the margins of society, they were poor, they were immigrants, they were members of minority groups, they had little education, so that also meant they didn't get the best legal representation. Often they had other problems with the law, there might have been drug use in their past. These people are just easy, easy, easy marks.

MARTIN: We're talking about parents and caregivers who've been convicted of causing shaken baby syndrome. We're talking about doubts that have been raised in some of those convictions. I'm joined by NPR correspondent Joe Shapiro, who reported an in-depth series about that. We're also joined by Victor Zapana. He wrote about his mother's conviction for The New Yorker. She was convicted for harming a child who was in her care.

Victor Zapana, your mom is Korean by birth.

ZAPANA: Yeah.

MARTIN: She is Korean American, and you think this may have played a role too because you don't think she was able to express herself as clearly as she might've been had...

ZAPANA: That, and I also wonder - there are a lot of questions that I have about what happened on the day and what happened in the police precinct that night when she was interviewed. I mean, now she has a much stronger grasp on English, but at that time in 1999, she wouldn't have been able to understand a lot of English. I mean it would have been very difficult for her, especially if she were asked very pointed questions or if it was very difficult time for her to, sort of, articulate points and if she was under pressure. I mean there's a lot of factors to consider as to whether she could have been able to tell her story adequately and accurately.

MARTIN: Well, also she reported that she was babysitting the child for another family of Korean background.

ZAPANA: Yes.

MARTIN: She'd answered an ad in a Korean newspaper...

ZAPANA: Mm-hmm.

MARTIN: And she called the parents and said something's wrong. She reported that the baby's left hand started to shake. When you think about this now, what do you think happened? Do you have a theory about that?

ZAPANA: I believe that something probably did happen, I'm not sure that day. I'm not sure who did it. I'm not sure whether anyone did it, frankly. I think there are just a lot of questions that, I mean, I still have now that I don't think are answered. After sort of doing the research it's a long journey and it's still, there's so many things to figure out about this case. So I'm not entirely sure. I do think something horrible happened to the baby. I think something horrible happened to both sides, too. And I think everyone meant well. I do think probably everyone has made mistakes along the way, including myself. I think one major question that I had and that I wanted to explore in this piece, is whether I was being a good son.

MARTIN: You were a child when this happened, but do you wish that you had been more forthcoming that she could never have done this or as more of a character witness, or to explain that perhaps her affect was one that people didn't understand because of cultural differences or something?

ZAPANA: I think that they, those were - all would be good points. I think that that would've that might have helped her case back then. I wonder how much anyone could do to change, sort of, the circumstances in this situation. I really don't know if that would fix anything, you know?

MARTIN: Joe, when you read this piece, knowing what you know about shaken baby syndrome and what researchers now seem to know or expanding their knowledge of it, what do you think?

SHAPIRO: Well, I thought Victor made us rethink this case and made us think about the possibility that his mother had been wrongly convicted. But it also made me, something that made me very sad about that, the science is so uncertain about this. It's very hard to prove what happened and we often have to suspect that then somebody else did it. Who knows what happened in this case? I mean it could have been a seizure that this child had. It could have been some other medical condition that had been there for months that didn't get picked up. Or in Ernie Lopez's case, actually it's fortunate when the child was taken to the hospital, a blood test was done. At trial nobody looked at this. His lawyers had never looked at this, but Heather Kirkwood, the new lawyer found a doctor who just happened to notice that the results of the blood test, that showed this really extreme disorder, the child's blood did not clot, that created a bleeding and signs of bruises. They just happen to find this thing and could find something that you could point to. That doesn't show up in so many of these cases. So yes, abuse happens, but I think that there are a lot of cases, too many, way too many cases, of people - innocent people - who get wrongly convicted of this.

MARTIN: What would you want people to know about this? I mean this is the kind of thing where you could see this is somebody's worst nightmare?

SHAPIRO: We have to realize that we don't have all the answers, that these automatic assumptions we have that when a child dies, that it must've been that person who was the last person holding the child likely was the person who caused the death. We have to realize that this is a big gray area, we can't always know. And we have to be very careful when we prosecute that we consider all the other possibilities. You know, what these cases are brought, it's usually brought in a narrow way. In Ernie Lopez's case, it looked at what happened once the child went into distress. And what we did in our story, we sort of pulled back and we looked at the child's life and showed that this child had a history of medical problems over the short five months of this child's life.

MARTIN: Victor, what would you want people to draw from your story?

ZAPANA: If you have someone accused of a crime, you know, they have a life story worth telling too. I also think having covered crimes myself, it's often very easy to, sort of, take the side of the clearer case and oftentimes it gets more complicated than that. And I think, with the case of my mother, I mean in 2007, for many years she was known as this terrible creature. I've actually gotten responses where people were physically sick after reading, sort of, the initial coverage and just thought the worst of my mother. And just, they realized that maybe there is something there that they're just missing and it's a little too easy to judge sort of these cases and, sort of, to fall back and find yourself siding with one side. I think people need to remember that there are always two sides to any criminal cases, there's always multiple sides to a story and it's worth sort of making the effort to try to figure out what those other sites are.

MARTIN: I think it's important for people to hear us say that does your mother deny that she harmed that baby?

ZAPANA: My mother does deny. My mother has said consistently that she is innocent and she has never wavered from that. Whereas, actually, I mean if you read the testimony a lot of people had to backtrack on their comments, even my father. I mean everyone sort of exaggerated points or made little fibs here and there. She has been very consistent with her statement that she has not done this. I mean no one has gotten her to say anything else.

MARTIN: Do you mind if I ask if you believe her?

ZAPANA: I - I want to. I think part of being a good son is to believe her. I think that she did make mistakes. I think that it's pretty clear in the testimony, that she knew what 911 was and that she didn't call 911 immediately. It's not unusual if you consider that she follows -sort of directions to the letter and the parents said call them and not anyone else, and she did call the parents immediately. She could've done additional steps that may have helped the kid out. Who knows. There are two questions you can ask out of this case, whether she did it and also whether she should be found guilty in the court of law. And I think the more relevant question is the latter. And I think there are just a lot of questions that I have significant questions that I think in a different situation, if we had more resources or if she were able to better articulate her story I could have my mom out right now and wouldn't have had to deal with these kind of talk questions. You know, it's - if I weren't a journalist, I would say I would - I'd believe her. I've just seen enough to know that even people with extremely good intentions can miss things or not understand situations that they're personally involved in. You know, and I just, I know that you always have to be skeptical of what everyone says. And in this situation, I have to look at this with a journalist's eye to be as fair to everyone as possible. I have to take my mother's testimony with a grain of salt.

MARTIN: Hm. Victor Zapana is the author of the piece "Shaken" in the November 26th issue of The New Yorker. He's a Washington Post reporter now. Joseph Shapiro is an investigative correspondent for NPR. They were both here with us in our Washington, D.C. studios. Thank you both so much for speaking with us.

ZAPANA: Thank you.

SHAPIRO: Thank you.

MARTIN: And that's our program for today. I'm Michel Martin and you've been listening to TELL ME MORE from NPR News. Let's talk more tomorrow.

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