Appeal Rejected in Shaken Baby Case

Someone who violently shakes a baby can be punished for felony child abuse even if he or she is unaware that the shaking can harm the child, the California Supreme Court decided Monday.

The unanimous ruling was the state court’s first decision on shaken baby syndrome, an injury made famous when English au pair Louise Woodward was convicted of killing a child in her care by shaking him.

Shaken baby syndrome causes about 300 deaths nationally each year and hundreds of permanent injuries.

Atty. Gen. Bill Lockyer said the ruling will help protect children by making it easier for prosecutors to win felony convictions in abuse cases. But Barry A. Zimmerman, the defense lawyer in the case, predicted that the ruling will make parents more susceptible to criminal prosecution for injuries they did not intend to inflict.

The ruling stemmed from the felony conviction of Michael Sargent Sr., a Yuba County man who was sentenced to 11 years in prison for shaking his 4-month-old son so hard that the boy went into a coma.

An appeals court had ruled that the felony must be reduced to a misdemeanor because there was no proof Sargent knew that shaking the baby would injure him. The incident took place in 1993, when medical and public understanding of the syndrome was less widespread than it is now.

But the state high court reinstated Sargent’s felony conviction, saying that knowledge of the potential harm is not a necessary ingredient to felony child abuse.

A jury must only decide “whether the infliction of the unjustifiable physical pain or mental suffering on a child” occurred under circumstances “likely to produce great bodily harm or death,” Justice Janice Rogers Brown wrote for the court. “If so, the crime is punishable by a felony.”

Shaken baby syndrome was first described by an American pediatrician in 1972. Babies under 2 and infants who are unable to hold up their heads are most vulnerable.

When babies are shaken, their heads rapidly wobble and the soft tissue of the brain hits against he hard bones of the skull. Blood vessels break and cause bleeding and swelling in the cavity between the brain and the skull. Depending on how severe it is, the bleeding can lead to sleepiness, behavioral changes, irritability, vomiting, respiratory failure, coma and death.

Michael Sargent Jr., the victim in the case before the state high court, was in a deep coma and close to death when paramedics arrived at his home Aug. 19, 1993. He was not breathing, had no heartbeat and no eye or motor movement. Bright red blood trickled from his nose and mouth.

Michael had been born prematurely and had the neck muscle development of a 4-week to 6-week-old infant at the time he was injured, according to the court record. He survived and was released from the hospital a few weeks later. His father has said the child suffered no permanent injuries.

The father told varying stories about how his son was hurt. After police informed him that doctors found the child had shaken baby syndrome, Sargent admitted that he shook his son twice to get him to stop crying.

After Michael stopped crying, he “had this weird look in his eyes . . . like [he] was going to sleep, you know, like he was falling or something,” the father told police. He later recanted and said he had dropped the infant.

The Court of Appeal in Sacramento, reviewing Sargent’s conviction, noted that there was no evidence to show Sargent knew or should have known of shaken baby syndrome and therefore no basis for finding that he knew or should have known that great bodily injury or death could result from shaking a baby.

But the state Supreme Court said it is up to a jury to decide whether violent behavior occurred under conditions likely to produce great harm or death. The ruling applies only to direct abuse, such as a slap, not indirect abuse, such as leaving a baby in a dangerous situation.

“Any reasonable person would recognize that shaking a 4 1/2-month-old infant, who had been born three months premature and had the neck development of a 4- to 6-week-old, with the force equivalent to dropping him out of a second-story window, was a circumstance or condition likely to result in great bodily harm or injury,” Brown wrote.

Brown also denied defense claims that a ruling against the father would make parents vulnerable to prosecution for shaking or slapping a child to prevent him from choking.

“Shaking or slapping a choking child, whatever physical pain or mental suffering that may involve, is justified,” Brown said.

Sargent, who is separated from his son’s mother and does not have custody, has been out on bail since the Court of Appeal reduced his conviction. Lawyers in the case said he has about eight years of his sentence left to serve.