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Caretaker Faces Deportation Over Dubious ‘Shaken Baby’ Conviction

After being released from prison, her only chance is a pardon from the governor.

Trudy Munoz with her daughters
Design by Anagraph/Photo courtesy of the Munoz family

Caretaker Faces Deportation Over Dubious ‘Shaken Baby’ Conviction

After being released from prison, her only chance is a pardon from the governor.

Former caretaker Trudy Munoz and her family should have been celebrating their reunion after she was released from prison Monday. But she is not free. Instead, her lawyers told The Appeal, Munoz was herded onto an ICE van while her family watched through a fence. No one was allowed to speak with her. Now, Munoz, 53, faces near-certain deportation based on the dubious science that put her in prison nearly a decade ago.

On April 20, 2009, Munoz was running a licensed home daycare facility in Fairfax, Virginia. She had never had any problems or complaints, and she was praised for her kind nature and her ability to be patient with difficult children. That spring day, 4-month-old Noah Whitmer was one of five children under her care. Everyone agreed that Noah had been especially cranky and irritable over the previous week, and Munoz had trouble getting him to take a bottle. By the afternoon, Munoz was trying to comfort Noah when he suddenly went stiff and began to vomit. She performed CPR and called the paramedics. Still breathing, Noah lapsed into a coma.

At the hospital, a CT scan revealed a possible subdural hematoma—bleeding between the brain and the skull—an injury often associated with child abuse because it happens when the brain strikes the skull as the result of impact. Investigators looked at Munoz as a suspect because she was the last person to be alone with Noah. Munoz was interviewed multiple times and showed investigators how she had jiggled the baby when he was fussy in a rocking motion —not the whiplash associated with child abuse. But, in part because of  a language barrier, Noah’s physicians believed that Munoz had confessed. Munoz and another witness say she never did. (The interview in question wasn’t recorded, and there was a confusion with translation.) As a result, the care providers proceeded with the assumption that this was an abuse case with the typical narrative: a care provider got annoyed with a fussy baby and shook it too hard.

Munoz was convicted of felony child abuse and sent to prison. Her case has gone in front of several appellate courts, but they rejected her appeals. Noah remains permanently injured and suffers from seizures.

Munoz’s oldest daughter, Renata, was 14 when her mother was arrested. “It was very much a defining moment in my life. … That was the end of my childhood. I had to grow up,” she said to The Appeal over the phone from Virginia where she attends George Mason University and studies environmental science. She explained the struggle of keeping her family intact, which included her father and her then-5-year-old sister, even as she and her sister went to live in Peru so their father could work to support them and her mother. “We’ve been used to seeing my mom two times a month, sometimes, and talking to her sometimes. For the first seven years, she didn’t even have email, so it was me writing words on paper, and then it’s a month to get a response. It really felt like she was gone a long time.”

Now that her prison sentence is over, Munoz has been released into ICE custody and is being processed in Richmond. According to her lawyers, no one—not even Munoz—knows where she will be detained after she is processed. Her only hope is a pardon from Virginia Governor Ralph Northam, who has said publicly that he isn’t familiar with the case even though the paperwork was filed two years ago.

The Munoz family
Courtesy of the Munoz family

Even as public attention is intently focused on children taken from their parents and placed in custody while their parents are deported, the separation of children and parents deported for a supposed criminal record has received less scrutiny. Munoz is another person about to be torn further from her family because of a felony conviction. Immigrants with certain criminal convictions, even if they hold valid green cards, have been targeted by ICE operations long before the current administration. They are the felons in President Barack Obama’s “felons not families,” statement, a 2014 policy shift in which the Department of Homeland Security prioritized immigrants with felony convictions for deportation.

Once Munoz is forced to leave the U.S., the law could prohibit her from returning for life. Renata felt that this was the hardest on her younger sister: “She was only 5 years old. I feel like I’ve become an adult and can handle it. If she is deported, I can handle it. I worry about my little sister; it’s become her whole life. Her mom was arrested at 5. She hasn’t seen her.”

Virginia’s pardon and parole board promised to review her case after her pardon petition was filed, but there has been no movement. Governor Northam hasn’t made any indication that he will examine the petition. This is despite the fact that Munoz’s conviction relies on a principle increasingly under question by the medical community.

Cases like Munoz’s that rely on the diagnosis of “shaken baby syndrome” have come under scrutiny in recent years. The concept behind shaken baby syndrome was simple. In 1971, Dr. Norman Guthkelch, a pediatric neurosurgeon, asserted that young children and babies were being shaken to death, violently tossed until they died. There were certain physical symptoms associated with this cause of death, including bleeding in the brain, brain swelling, and retinal hemorrhaging. Known as the triad of symptoms, they became talismanic for a kind of child abuse too horrible for most people to envision.

The nightmare of shaken babies became a media fixation, with special attention devoted to the parenting of low-income families and women who leave their children with caregivers. One of the earliest criminal cases to rely on shaken baby syndrome was the murder trial of 19-year-old Louise Woodward, a British au pair. The media and public commentators made much of the fact that the baby’s mother had hired a caregiver in order to work outside the home. (The mother was an ophthalmologist who worked three days a week.) In New York State and other places, hospitals are required to offer a lecture to new parents about shaken baby syndrome. Governor Northam himself said that he wanted to make sure the public knew about the dangers of shaken baby syndrome. And even though the American Academy of Pediatrics now refers to the triad of symptoms as “Abusive Head Trauma,” the group still warns about the persistent dangers of child abuse and injury.

But, in recent years, pediatricians and lawyers have realized that much of the “science” behind shaken baby syndrome wasn’t science at all. In reality, the diagnosis was often a product of uncertainty when there was no clear medical explanation—or one that physicians hadn’t considered—and prosecutors were faced with a dead baby. Deborah Tuerkheimer, a law professor at Northwestern University, describes the need for justice when a baby is injured in her book Flawed Convictions: “Shaken Baby Syndrome” and the Inertia of Injustice: People can’t tolerate ignoring “the sudden, seeming inexplicable collapse of an infant.”

Whereas historically, prosecutors charged the last person to see the child with shaken baby murder, today experts acknowledge that it’s not that clear-cut. Studies show that it can take hours or even days for symptoms to appear. Even Dr. Guthkelch acknowledged that shaken baby syndrome  was only his theory and not intended to be used as a reason to convict people. Research has shown that the velocity required to generate the triad of symptoms can happen if a baby falls, but is very hard to do from shaking. And many physicians now acknowledge that the kind of shaking or injury that would be hard enough to cause brain bleeds would be accompanied by neck injuries or other bruises indicative of abuse.

As a result, numerous people have been exonerated once medical evidence was properly examined and alternative explanations considered. In 2017, the conviction of Zavion Johnson in California was reversed after his lawyer produced evidence that the death of his 4-month-old daughter was most likely not caused by shaking, but instead an accident. Audrey Edmunds was charged and convicted with the shaking death of an infant under her care in Wisconsin in 1996. In 2008, she was released from prison and her conviction reversed when her defense put forth evidence contradicting the shaken baby syndrome theory of the prosecution. The National Registry of Exonerations lists 15 people once convicted of SBS deaths who are now judged not guilty. Dr. Guthkelch has even testified in cases where SBS was mistakenly applied.

The Washington Post and Northwestern University’s Medill Justice Project traced shaken baby prosecutions from 2001 through 2015 and found 1,800 cases filed during that time. About 1,600 resulted in a conviction and 200 did not, either because cases were dropped or dismissed, or because the defendant was found to be not guilty.

At the same time, there are still many arrests and convictions based on the shaken baby theory. In some ways, the cases are among the worst of criminal charges because the alleged perpetrator is almost always a parent, relative or caregiver. The Medill study found that the vast majority of shaken baby cases involved male defendants, ranging from fathers and step-parents to a caregiver’s boyfriend.

The family relationship dynamic can cause a unique kind of emotional stress in suspected-abuse cases. Take the case of William O’Shell. O’Shell was wrongfully accused of abusinghis 3-month-old child. Anticipating his arrest, O’Shell shot his wife as she was sleeping, then killed himself. It turned out that the baby had a genetic disorder that was diagnosed after her parents’ deaths. But, O’Shell anticipated his arrest, conviction, and shame, and decided it was too unbearable to handle.

Munoz’s lawyers are putting particular pressure on Governor Northam who, as a pediatric neurologist, had previously expressed interest in the issue. But, despite the pardon petition filed last year, there has been no movement on Munoz’s case. According to Munoz’s petition by her attorneys at the University of Virginia’s Innocence Project, Noah Whitmer’s medical records reveal multiple pre-existing conditions that make the shaken baby syndrome diagnosis extremely unlikely. For example, the boy had previous head injuries and a history of other medical problems that made him susceptible to seizures. These types of medical problems are now thought to be the ones assumed to be abuse.

Munoz is in a unique position because the appellate courts have rejected her appeals and she has already been released into ICE custody. And, with the Trump administration’s “zero tolerance” zeal for deportations, it’s extremely likely that she will be sent to Peru, where she has not lived in almost two decades.

For the moment, Renata says she is saying focused on planning for her mother’s release and hoping for a pardon. “I prepare for the worst and hope for the best.

I really hope for the best. I wish this would all go away, but I am prepared for her to go to Peru. Her pardon would be the best thing that could happen in my whole life. That’s the most I can do at this moment.”

‘They treated me like a dog’: An Immigrant Was Forced to Clean the Truck of the Border Agent Who Arrested Him

Under ‘Operation Streamline,’ Border Patrol has become responsible for the housing and transporting of immigrants.

View of U.S.-Mexico border from San Diego, CA
Photo by Mario Tama / Getty Images

‘They treated me like a dog’: An Immigrant Was Forced to Clean the Truck of the Border Agent Who Arrested Him

Under ‘Operation Streamline,’ Border Patrol has become responsible for the housing and transporting of immigrants.

According to a declaration given to a federal public defender in San Diego, a Border Patrol agent made a detained Mexican immigrant clean the agent’s truck and then shut him inside it with the air conditioning at full blast as the shivering immigrant broke down in tears. When the immigrant said he was cold, the agent turned the heat all the way up and kept the car heated as they drove through a Southern California heat wave to federal court in downtown San Diego. The Mexican citizen, who says he had previously lived in the United States for 18 years, told his lawyer that the Border Patrol agent had announced to a fellow agent that he was “going to make this Mexican clean my truck,” and that after he was done cleaning the truck he felt “like a dog.”

The Mexican citizen, who has asked that we not reveal his name for fear of retaliation by Border Patrol, was arrested on the night of July 24, along with three other people two miles north of the border near the Otay Mesa Port of Entry. After being arrested, the border crossers were brought to a Border Patrol station where the Mexican citizen who made the declaration says an agent menaced them with a Taser, threatening to use it, and told them it was “funny to see someone get tased.”

Since July, many immigrants caught crossing the border have been kept longer in Border Patrol custody, as they await criminal prosecution in federal court under the Justice Department’s “zero tolerance” policy, which aims to prosecute as many border crossers as possible. Previously, the vast majority of Mexican immigrants apprehended were almost immediately sent back through a process known as “expedited removal” or through the reinstatement of a previous removal order. Now, with 32 percent of immigrants arrested after crossing the border being brought to federal court to face criminal charges under the expedited prosecution program known as “Operation Streamline,” Border Patrol has become responsible for the housing and transporting of immigrants who had previously been immediately removed or handed over to the U.S. Marshals or ICE for their confinement.

This means that Border Patrol is being pressed into the role of a jailer. Federal public defenders have repeatedly declared in court that this is a role for which the agency is ill-equipped. Border patrol agents often have immigrants sleep in overcrowded and freezing rooms, order that they take turns sleeping on mats, and provide them with limited food during their confinement. They have also repeatedly denied immigrants access to medications that they confiscated during arrests.

Michelle Angeles, an attorney at the Federal Defenders of San Diego, represented the Mexican immigrant who made the declaration, and says it’s unclear whether there has been an increase in instances of abuse by Border Patrol since the beginning of Operation Streamline.

What has changed, she says, is that because of their criminal prosecution in federal court, immigrants in Border Patrol custody are now being provided something they wouldn’t have during previous interactions with the agents: lawyers. It’s during the brief meetings with federal public defenders that stories of mistreatment have begun to come out.

“As I was leaving the station I heard the officer say to another officer ‘I am going to make this Mexican clean my truck,’” the Mexican immigrant told Angeles in Spanish.  “I heard the officer laugh and say, ‘Yeah, make him clean your truck.’ The agent then took me to his truck and told me to clean the truck. He made me pick up with my hands used cans, dirty towels, old gloves, rotten food, paper, and made [me] remove dirt and sand from the truck floor. He then told me to get in the truck and turned the air conditioning on high and left me alone for about 10 minutes. The truck was freezing cold. I was wearing only a thin T-shirt and pants. I got goosebumps and started shaking from the cold. As I sat in the truck I started crying. I was frustrated and emotional by the way I was treated. I lived in the United States for 18 years and I have never been treated this way. The agents have all this power and they abuse it to make us feel less. They laughed and mocked us. They treated me like a dog. I was humiliated.”

Angeles told The Appeal that while Border Patrol has policies in place for how they are supposed to treat people in confinement, there’s almost no way to monitor whether agents are following these policies or to hold officers accountable when they don’t follow the rules.

“It’s sort of the wild wild west. What happens under the scope of Border Patrol in these hills stays there. It’s our client’s word against theirs,” Angeles said. “I say that because even if there’s training, some of these agents feel empowered to abuse their authority and I don’t think that just applies to Border Patrol.” Angeles added that many of her clients have also complimented the agency l for its treatment while in custody.

Border Patrol says it has no record of any incidents during the timeframe this individual was in custody. “The Border Patrol stresses honor and integrity in every aspect of our mission, and the overwhelming majority of Border Patrol employees and agents perform their duties with honor and distinction, working tirelessly every day to keep our country safe,” Eduardo Olmos, a Border Patrol spokesperson told The Appeal. “We do not tolerate corruption or abuse within our ranks, and we fully cooperate with any criminal or administrative investigations of alleged misconduct by any of our personnel, on or off duty.”

In the United States, there exist very few remedies for individuals who claim abuse by federal law enforcement agents outside of filing a civil rights lawsuit alleging the violation of an individual’s Fourth Amendment protections against unreasonable searches and seizures. In the absence of meaningful oversight, Border Patrol agents have often acted with impunity toward a population that is not inclined to speak out, because of fear of retribution or worries that it would complicate their pending immigration cases. Last Tuesday, however, the Ninth Circuit Court of Appeals issued a landmark decision, ruling that a Border Patrol agent could be sued in federal civil court by the family of a Mexican teenager who was fatally shot on the Mexican side of the border fence in October 2012. The ruling further expanded  the context under which civil lawsuits against the agency could be filed and is expected to be appealed to the Supreme Court.

Last week, the Mexican citizen who gave the declaration was bailed out of federal custody, had his criminal charges dismissed, and consequently was removed to Mexico. Before his removal, he was held in Border Patrol custody for a few extra days after he had already agreed to an expedited removal. Federal defenders have filed motions documenting the issues with Border Patrol keeping people in detention for days after they have agreed to a removal, especially in the context of the ill treatment many that immigrants reported having received while in custody.

“They don’t treat us like humans,” the Mexican immigrant said, concluding his declaration. “They treat us like animals.”

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New Orleans Court Ordered To Stop Funding Itself On The Backs Of The Poor

The criminal court was funneling millions of dollars a year from poor communities.

Paul Sableman/Flickr

New Orleans Court Ordered To Stop Funding Itself On The Backs Of The Poor

The criminal court was funneling millions of dollars a year from poor communities.

New Orleans courts will need to drastically revamp the way they treat poor defendants after two orders handed down by federal judges in the past two weeks struck down both the city’s bail system and a crucial funding structure. The two rulings found that jailing people if they can’t afford to pay court costs violates the constitutional guarantee of due process and equal protection. Both federal judges found that the current system, where criminal court judges control the revenue from bonds and fees they set for defendants, violates due process. Together, the invalidated funding schemes funneled millions of dollars a year from poor communities to the court.

Because of Magistrate Judge Harry E. Cantrell’s practice of refusing to release people on their own recognizance or set bail amounts they could afford, “[p]laintiffs have been deprived of their fundamental right to pretrial liberty,” Eastern District of Louisiana Judge Eldon E. Fallon wrote in his decision on Aug. 6. Given that “deprivation of liberty requires a heightened standard,” he stated that a judge has to prove that there is “clear and convincing evidence” that someone should be detained. That requires an inquiry into whether a defendant can pay the set bail amount and the consideration of alternatives to incarceration.

“You can’t just throw money amounts at people,” noted Jon Wool, director of public policy at the Vera Institute of Justice’s New Orleans office. “You need to say either you’re released on nonfinancial conditions or you’re detained either because you can’t pay money or as preventative detention, but only after a searching inquiry and a high standard of proof.”

That’s a “complete 180” from the way Judge Cantrell had been operating in the courtroom, said Eric Foley, a staff attorney at the New Orleans office of the MacArthur Justice Center. His organization and Civil Rights Corps brought the original case against Cantrell.

Though he is supposed to consider an individual’s ability to pay when setting bond, Cantrell has acknowledged that he refuses to give people bail amounts lower than $2,500—a hefty sum in a city where over a quarter of the population lives in poverty. This is partly because Cantrell has “an institutional incentive to find that criminal defendants are able to pay bail and to set higher bail amounts,” Judge Fallon found. The court gets a 1.8 percent cut of every bail amount Cantrell sets, thanks to Louisiana’s unusual “user pay” court-funding scheme.

In 2015, the court netted over $1 million from bail and bond fees, which could be used for basically any function other than a judge’s salary. Judge Fallon found that Cantrell violated due process by setting bail amounts that his court would later profit from. His opinion came after a final judgment on Aug. 3 in a case finding that judges in New Orleans were unconstitutionally jailing people who couldn’t afford to pay court debts, similarly indicting the funding system that allocated part of those fines and fees to the court itself. “[B]ecause of the Judges’ institutional conflict of interest,” Eastern District of Louisiana Judge Sarah Vance wrote, they “fail to provide a neutral forum for determination of criminal defendants’ ability to pay.”

Last week’s ruling could still be challenged. As the defendant in the case, Judge Cantrell has 28 days to move to alter or amend the judgment, or he could move to appeal it. “If they did in fact challenge it, we’ll go down that road,” Foley said.

But advocates and attorneys are already working to give the ruling teeth. For the Vera Institute of Justice, the immediate focus is getting the City Council to fund the court. “That’s always been the plan: to replace these funding structures…with some combination of city and state direct funding,” Wool said. He expects that the city will offer the court money in exchange for reforming the use of money bail and conviction fees. “Making change at the state level is simply out of reach—there’s too many forces allayed against reform,” Wool said.

The good news for New Orleans is that while the changes will require an upfront investment, the city should soon reap the rewards of lowered incarceration. Vera estimates that reforming bail-setting practices would result in at least 400 fewer people in jail, given that its previous work estimated that 548 jail beds on a given day are occupied by people held because they can’t afford their bail.

That would allow the city to close at least one floor of its jail, reducing staffing and other costs, which would net the city, Vera estimates, a savings of $4 million a year. “That can go back to replace the revenues lost from ending these practices,” Wool said.

“It can be a win-win for the court’s finances and for the city’s budget,” Wool noted, “and not insignificantly for the low-income people who are being targeted for taxation to fund the criminal justice system unnecessarily and inappropriately.”

“To the extent that we can get people who don’t need to be in jail out of jail and back into their daily lives and into their jobs and families while they resolve their underlying criminal charges,” Foley added, “it’s a net benefit for everyone.”

Changes in the courtroom might be slower to come to fruition. “The ball is in Magistrate Cantrell’s court,” Foley said. “Judge Fallon has said basically here is the floor, the bare constitutional minimum of what has to occur at a hearing. Now it’s on Magistrate Cantrell to figure out how he’s going to comply with that.” If he doesn’t comply, Foley’s organization will seek an injunction from Judge Fallon telling Cantrell what must be changed.

“I think [judges] will be reluctant,” Wool said. “But there’s been enough focus on these issues for long enough for them to realize that they need to look for solutions and not merely oppose changes.”

There is a system ready and available to replace money bail when judges are willing to avail themselves of it. Vera helped start up a pretrial risk-assessment tool five years ago that directs judges to base their decisions on whether to release someone not on money, but on the risk of flight or re-arrest. “That’s in place and the court is operating the system now,” Wool said. “Judges have…all they need to move away from money bail.”

The ruling should also reverberate beyond New Orleans. “It’s particularly significant because it goes beyond addressing preset bail schedules or release in misdemeanor cases,” Wool explained. “This is a comprehensive ruling.”

Foley agreed. “It’s a very well reasoned and scholarly opinion,” he said. “It’s an opinion other jurisdictions will be able to rely on.” Other judges may now cite it as a reason to strike down money bail regimes that don’t weigh whether defendants can afford it or court systems that are funded by fines and fees set by their own rulings. The latter “is a nationwide problem,” Foley said. “You have some particularly bad and egregious examples of it in Louisiana, but it is unfortunately a system that has come to prevail across many of the states.”

The decision also requires that defendants be represented by counsel at bail hearings. “The importance of the right to counsel is evident from its inclusion in the Bill of Rights,” Judge Fallon wrote. “Considering the already established vital importance of pretrial liberty, assistance of counsel is of the utmost value at a bail hearing.”

“That could have far-reaching implications for the provision of public defenders statewide,” Foley said. Defendants should soon find themselves represented by a lawyer when their bail is being set.

similar ruling against money bail was issued in January by a California state appellate court, declaring, “A defendant may not be imprisoned solely due to poverty,” and instructing judges to determine whether defendants can afford bail and whether they can safely be released before their trials. But it holds greater weight in Louisiana. “It’s even more [significant] because it shows that even in the South … there are federal courts that will apply the federal Constitution to outlaw these behaviors,” Wool said.

“We’re in a really unique and interesting period in this kind of reform that would even a few short years ago would have been almost unimaginable,” Foley added. But people have come to realize the injustice of jailing people because they are too poor to afford bail. “Whether your rationale is it’s not good because it’s morally wrong or it’s not good because it’s costing an arm and a leg, [the] end result is the same.”

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