The story that distraught Maria Mendez told doctors and detectives at Harbor-UCLA Medical Center seven years ago has never varied, not even on the day she rejected a chance at probation by refusing to say she'd killed her grandson.
Shortly before Christmas 2006, as she told authorities, one moment her strapping, 22-pound, 9-month-old grandson was on the sofa at her home in South L.A. while she straightened up and prepared snacks for four of her children — who would soon be home from McKinley Elementary School and a nearby continuation high school. The next moment, she found the baby, Emmanuel Martinez, facedown on the floor turning purple, and she screamed for help.
The baby remained in a coma for a week and was declared brain-dead on Dec. 20. Medical examiner Yulai Wang said the cause was “traumatic head injuries” leading to massive brain swelling, and ruled the baby's death a homicide. But Wang failed to take photographs of the brain damage — an omission that has come back to dog him.
Six months later, the unthinkable happened to the huge Mendez family of 10 children: Their kindly, graying, beloved mother, a widow and pillar of the family, was suddenly arrested for Emmanuel's murder.
Mendez was known for her almost daily attendance at a small, Christian church near her home. She was a volunteer at McKinley Elementary School, where her youngest, Daniel, then 12, was a student; and caregiver and best friend to her daughter Rocio, 14, who has Down syndrome.
But she was jailed for three years while awaiting trial, and on Dec. 1, 2009, she was found “guilty of assault on a child causing his death.” The jury was hung on the question of whether Maria Mendez was a murderer.
During the trial, teenage Rocio, who cannot speak, continually pointed to the mother she had not seen in 2½ years. “She was pointing like she wanted to go with her,” Raquel Mendez, Emmanuel's mother, recalls in an interview from Las Vegas, which was frequently punctuated by sobs.
Mendez had a chance at probation before her 2010 sentencing — if she'd admit during a prison psychiatric evaluation that she'd attacked Emmanuel. No, she said.
She firmly informed her court-appointed attorney, Vincent Oliver, that she would never live under the terrible — and false — cloud of life as a baby killer and felon. Oliver tells the Weekly that Mendez “is totally innocent,” but he is still surprised that she refused to accept responsibility and say what the authorities wanted to hear. The mother of 10 could have been freed almost immediately for time served, Oliver suggests.
Backed by her children, including then–19-year-old Raquel, Mendez asked for mercy from Los Angeles Superior Court judge William Ryan. Ryan faced two starkly different choices: a minimum 25-year prison term or probation, plus time served. On Oct. 8, 2010, Ryan sentenced Mendez to 25 years to life in prison. She was transported to Central California Women's Facility in Chowchilla to live among hard-core criminals.
The jury and judge believed a dramatic narrative, crafted by prosecutor Jodi Castano and supported by star witness Dr. Carol Berkowitz, former president of the American Academy of Pediatrics: that the 5-foot-tall, 52-year-old Mendez became wildly enraged by Emmanuel's crying and shook him so hard — and possibly slammed his head against, or with, a hard object — that the baby died from brain trauma. In her rage, she may have smothered him, too, Castano added, perhaps pressing the baby's face into the carpet.
Berkowitz testified that Emmanuel died from massive brain swelling after someone cut off his oxygen for two to four minutes or, alternately, that he died because his brain was traumatized. Key to his death, Berkowitz said, was the “mechanism for the injury” — somebody had violently shaken the baby, a behavior that until 2009 was dubbed “Shaken Baby Syndrome.”
Berkowitz told the jury: “It would be a significant force. Even one to two short, jerky shakes, not the type of movement where you're sort of gently moving the baby up and down, and not the kind that we often talk about when you're teaching CPR. … It doesn't take repeated movement. One to two short, very forceful jerks would do it.”
“It was all a lie,” Raquel's older sister, Rebecca Mendez, tells the Weekly.
Incredibly, the Mendez jury never learned that esteemed doctors and researchers in the United States and Great Britain, suspicious about the use of Shaken Baby Syndrome to imprison an estimated 1,000 parents and caretakers in this country alone, were engaged in a heated scientific debate questioning the syndrome.
A growing body of research had discredited some key tenets of Shaken Baby Syndrome. Research by Dr. John Plunkett in 2001 proved that babies can suddenly die, hours or days after short, accidental falls; Shaken Baby Syndrome adherents had long denied this medical fact and now say the chances of it occurring are infinitesimal.
Other research showed that infants die from numerous medical conditions that were being blamed on shaking, while others showed that no person can shake a baby with enough g-force to cause brain damage without injuring the baby's neck.
By 2008, several respected physicians and researchers were calling the syndrome a “belief system” without scientific justification. And the “triad” of symptoms that the American Academy of Pediatrics had cited for two decades as proof that a baby had been shaken to death — bleeding in the brain (subdural hematoma), bleeding in the eye (retinal hemorrhage) and swelling of the brain (cerebral edema) — was being successfully challenged in court.
The Mendez jury heard none of this. Oliver won't discuss his omission, but it's possible that he simply did not know.
Plunkett tells the Weekly that Berkowitz's premise that two “jerky shakes” could cause the baby's brain injuries is absurd. “Jesus Christ, how do they get away with this stuff?” he asks. “This is preposterous. She speculated on two forceful jerks, but how many cycles [back and forth] per second and over what distance to generate what force?” Biomechanical research shows that fatal damage to the brain takes at least four times the force a human could generate by shaking alone, Plunkett adds.
Berkowitz told the Weekly in a brief interview in August that she had no reason to reconsider her testimony in the Mendez case. She did not respond to subsequent requests for comment.
But that wasn't the only problem with the Mendez murder trial.
LAPD had no witnesses to Maria Mendez's alleged rampage, and its evidence in the case was unusually weak. Documentation obtained by the Weekly shows the probe fell short in several areas.
Minutes before Emmanuel was found on the floor in a coma, Maria's son, Samuel, testified that he kissed and briefly played with the baby — and Emmanuel was not crying. Minutes later, when Samuel went to his bedroom in their tiny 858-square-foot home to listen to music, he said the baby still was not crying. But a terrible sound did rip through the bungalow: Maria, screaming that Emmanuel was on the floor and wasn't breathing.
LAPD detectives visited the house but offered no evidence at trial of the alleged hard objects against or with which prosecutor Castano said Maria Mendez hit the baby during his alleged crying; nor did they offer any trace evidence of the baby's tissue or blood left by the shaking-and-attacking scene Castano depicted. No trace evidence was presented of nose tissue or blood recovered from the carpet due to the smothering she alleged. Medical examiner Wang found no grip marks or neck damage as a result of the violent shaking Berkowitz suggested. Castano pointed to a single, half-inch bruise on Emmanuel's forehead, and a small scuff on his nose, as outward evidence of the attack.
Wang did, however, find that the baby's skull had been fractured. On this point, deputy alternate public defender Reid Honjiyo, in a preliminary hearing, proved that Emmanuel was witnessed falling down at his father's house two days before his coma, hitting his head hard on a concrete floor. The baby's head was not examined by a doctor, and Wang later testified that he couldn't say on which day Emmanuel's skull was fractured.
In reaction to such cases, efforts to free parents and caretakers from prison have sprung up nationwide. Groups involved include the Arizona Justice Project, the California Innocence Project at California Western School of Law in San Diego, the Northern California Innocence Project at Santa Clara University School of Law, the Michigan Innocence Clinic at University of Michigan Law School, and the Wisconsin Innocence Project at University of Wisconsin Law School. Medill Justice Project, an investigative journalism effort at Northwestern University, is creating the first national database of “shaken baby” cases.
In L.A., Loyola Law School's Project for the Innocent — a team led by former federal prosecutor and prominent attorney Laurie Levenson — has vowed to free Maria Mendez. “This is a righteous case,” says Levenson, now a professor at Loyola, who created the Project for the Innocent after students sought ways to apply their legal training to changing people's lives.
The Loyola team is reinvestigating every aspect of the case, including LAPD's investigation, in anticipation of filing a wrongful-conviction petition seeking to exonerate Maria Mendez. Gov. Jerry Brown has already freed one California grandmother: Last year he granted clemency to Shirley Ree Smith of Van Nuys, convicted on weak evidence of killing her grandson in 1997 while shaking him in an alleged, unwitnessed rage.
“How does a grandma with an unblemished record of caring for all these children for all these years just suddenly snap?” Levenson asks of the similar Mendez case. “Now, especially with what we know about the science, it doesn't add up.”
What happened to Maria Mendez, she says, reads “like a novel. … I see the system steamrolling over this family.”
None of the past seven years makes sense to the big, loving Mendez family. Maria and her husband, Roberto, moved here in the 1970s from the Yucatán and painstakingly built a good life — she worked in a factory putting labels on tuna cans, he held a job at a recycling plant. They scrimped and bought a small home, had a huge family, and kept all their kids out of gangs and in school. Maria became the cornerstone after Roberto died from diabetes the summer before Emmanuel's death.
Oliver, the court-appointed lawyer for her trial, “never interviewed us in detail about her,” according to Rebecca. Yet she yearned to tell someone in authority how her mother flew her oldest son, Jose, back to the Yucatán when he was 18 to shield him from L.A.'s gang influences — he settled there, and now has a wife and four children.
She wanted to tell those accusing her mom how Maria helped her married son Carlos buy the couple's house in East L.A. and how she babysat four grandsons while her daughter Jacki worked during the day. She cried as she told the Weekly how her mom fought to get her an expensive operation when Rebecca was about 6 to correct a leg deformity that prevented her from walking.
“She wanted me to go to college to become a doctor or a teacher,” Rebecca says. “She was a perfect mom.”
Mendez insisted that all her children finish school. With her Down syndrome daughter, Rocio, she went to church and for evening walks around the block, and gently spoke to her during quiet time on the porch. She made sure her youngest, Daniel, was enrolled in Salvation Army afterschool sports programs.
Raquel Mendez, Emmanuel's mother, had a special place in Mendez's heart — she was the youngest daughter, and she'd messed up, getting pregnant at only 15.
Rebecca and Raquel say defense attorney Oliver failed to challenge prosecutor Castano's false description of Mendez as “a horrible mom.” Castano characterized the normally upbeat Mendez as so depressed that she slept much of the time in the four months after her husband's death — and yelled at Emmanuel when he cried. In fact, her children say, when Maria Mendez was stressed out, she sat in her garden or went to church.
Rebecca saw her nephew, Emmanuel, two days before he was rushed to the hospital. Maria was taking care of him, and he was contentedly nibbling on a cookie on the floor. “Mom told me the way she was getting through the pain of Dad's passing away was spending time with the kids,” she says.
Little more than a week later, when she learned the baby was being taken off life support, Maria cried out, “Mea culpa! Mea culpa!” which was used against her at trial. Her children say these are the predictable words of any grandmother whose grandson stops breathing while not being watched.
Six months after Emmanuel died, Rebecca recalls the children's horror when an LAPD detective appeared at their house on July 11, 2007. She says LAPD Detective Daniel Aguirre informed Maria that she needed to come with him to the Century Regional Detention Facility in Lynwood for an interview. (Aguirre told the Weekly he would ask a supervisor if he could comment but did not return several calls.)
Rebecca and Raquel went along with their mom to the L.A. County Sheriff's facility in Lynwood, where Maria Mendez handed Raquel her purse and went with Aguirre for her interview.
That day, in 2007, is the last time the 10 children saw their mother as a free woman.
“We waited an hour and a half, but my mom never came down,” Rebecca recalls. “They told us she was being arrested for the crime against the baby. They had told us, 'Don't worry, we'll take you back home,' but the detective never came back down.”
Shocked and stranded by LAPD, Rebecca says, “We called friends but finally had to call a taxi. We had no money, but [the taxi driver] had a heart after we told him our situation — and gave us a free ride home.”
At age 20, after her mom was arrested and jailed, Rebecca became the matriarch of the family, struggling to pay the mortgage and raise the four youngest children: Daniel, Rocio and two nephews who were then 9 and 4. But Rebecca lost the house and struggled to pay the $1,500 rent in an apartment she kept sparkling clean.
During her mother's brief monthly calls home from Chowchilla prison, she says, Mendez always asks to talk with her youngest son, Daniel. “She tells him to go to school so he can be a better person in life.”
Family members cannot forgive the detectives or Castano for the thin investigation leading to their mother's arrest. Detective Aguirre conceded that he didn't press Samuel to discuss how long he played with Emmanuel just before the baby fell unconscious. Attorney Oliver argued that Aguirre's lack of interest in the key events before the baby's coma showed that LAPD had prematurely condemned Maria Mendez and bought into Berkowitz's tale of a crying jag that caused Mendez to snap. Aguirre, in choppy, unclear language, testified: “We had, at that point, and what the injuries, and what they were saying — the doctors — was focusing toward Ms. Mendez.”
In closing arguments, Castano created a vivid murder scene in the living room, putting into Mendez's mouth words to explain what the grandmother was thinking: “She goes into the other room: 'Shut up! Shut up! I just can't take it anymore!' ” Castano told the jury. “And she hits this baby or bangs this baby's head against multiple objects, including a hard object in her hand, to cause the parietal linear fracture. The bruises to his head. And then what does he start to do? He starts to cry more. 'I've got to get this baby to stop crying,' and she either takes his face, puts it in the carpet and holds it there until he stops crying, or puts the pillow over his head, and finally she has her peace and she walks away.”
At her mother's sentencing, Raquel, then 19, begged Judge Ryan, “I know she was not capable to harm my little boy.” She says today, in a phone interview, “It wasn't right what they did to my mom. My mom is a lovely person, the nicest person. I talked to her about what happened — and as a mother, I believe her.”
In 1987, when Maria was working at the tuna factory and Roberto at a recycling plant, a young neurosurgeon, Ann-Christine Duhaime, sounded early warnings that Shaken Baby Syndrome might not be the cause of unexplained infant deaths. The theory's promoters had long targeted the “last person alone with the baby” before he or she died — as they did with Maria Mendez.
But research by Duhaime and biomechanical engineers, in experiments with dummies, strongly suggested that one of Shaken Baby Syndrome's most potent theories was wrong: The force needed to cause brain injury in a baby was far greater than any outraged parent could conceivably deliver. That type of force, Duhaime said, required an impact to the head.
Then, highly credentialed doctors and researchers began to ask: Wouldn't a baby's neck be obviously damaged if a child was jerked hard enough to cause fatal brain injury?
At first, a cautious handful of doctors and researchers jumped in. But by the early 2000s, prominent, big-name doubters such as Dr. Jennian F. Geddes in England began to issue reports and detailed data that challenged such respected pediatricians as Dr. David Chadwick of San Diego.
Researchers in a number of fields, including pathology and neuroradiology, undermined key aspects of the syndrome. Werner Goldsmith at UC Berkeley, an authority on the biomechanics of head and neck trauma, released groundbreaking work substantiating earlier findings that shaking by humans produced far lower accelerations than the American Academy of Pediatricians and its members had, for decades, alleged.
Yet at the Mendez trial, Berkowitz cited this battered tenet of Shaken Baby Syndrome, telling the jury that the baby's “brain, really, if you think of shaking Jell-O, gets jarred up and loses its ability to keep its cells intact.”
Dr. Steven Gabaeff, an outspoken detractor of the syndrome, tells the Weekly that Berkowitz should have been promptly challenged in court. Oliver, Mendez's attorney, let Berkowitz's claim pass.
Gabaeff, his voice tinged with disgust, says the human brain is “not the density of Jell-O, it's more like water,” and adds that star witness Berkowitz “uses her authority to say anything she wants.” Plunkett also criticizes the Jell-O metaphor, saying it trivializes the complexity of the infant brain, constrained by “tough” blood vessels that prevent it from shaking like Jell-O.
Facing mounting fire during the year of the Mendez trial, the AAP recommended that the term “Shaken Baby Syndrome” no longer be cited, and suggested a new phrase that addresses its contention that babies are under attack. The new name is “Abusive Head Trauma,” and the AAP has continued to train ER workers, children's hospitals, police and pediatricians nationwide to spot “the triad” of indicators, which it says are enough to put people in prison.
The news media, most of which had accepted the homicide convictions of caretakers at face value for three decades, began asking questions. On Sept. 20, 2010, Deborah Tuerkheimer, a law professor at DePaul University and a former assistant district attorney in Manhattan, in a New York Times opinion piece, challenged the triad and its widespread use to convict people. That was followed on Feb. 2, 2011, with a New York Times news report by Emily Bazelon, “Shaken Baby Syndrome Faces New Questions in Court.”
The AAP is fighting back. Dr. Robert Sege, chairman of the AAP's committee on child abuse and neglect and director of Boston Medical Center's Division of Family & Child Advocacy, Department of Pediatrics, tells the Weekly that the AAP believes both shaking and impact, alone or in tandem, can severely hurt or kill infants.
Sege declares: “There is no doubt abusive head trauma … is the leading cause of death in infants under 6 months.” (Next May, the National Center on Shaken Baby Syndrome, closely affiliated with AAP, is sponsoring the International Conference on Shaken Baby Syndrome/Abusive Head Trauma in Paris.)
A leading proponent along with Sege is Dr. Sandeep Narang, a Houston specialist in pediatric forensic medicine, who wrote in defense of Abusive Head Trauma in the Houston Journal of Health Law and Policy. Narang says 15 medical associations worldwide have acknowledged Abusive Head Trauma as a valid diagnosis.
Dr. John Plunkett says no one disputes that abusers sometimes inflict fatal head injuries upon children. But, he says, several hundred people are in prison, countless others have done time, and many are likely innocent.
“It's a denial system,” Plunkett tells the Weekly. “It's difficult to think your testimony was wrong and led to the incarceration of innocent people. I've completely lost faith in pediatricians to see beyond their own belief system.”
Plunkett's investigation, showing that babies can die from short falls, got the attention of Dr. Patrick Barnes, now at Stanford University, who gained fame in 1997 by testifying for the prosecution in the globally reported case of British au pair Louise Woodward, accused of shaking a baby to death in Boston. She was found guilty, but the judge later reduced her sentence to involuntary manslaughter and she was released.
Barnes switched sides based on new research into Shaken Baby Syndrome, and he has come under intense attack as a traitor. He now works to prevent parents from going to prison. Last year he and colleagues published a report in the Houston Journal of Health Law and Policy arguing that the tack of accusing parents of Abusive Head Trauma continues “to rely on traditional SBS assumptions” and is a “terminological shift” with little science behind it.
DePaul professor Tuerkheimer says, “So much of the science has shifted, including claims about the triad, that a lot of old convictions should be revisited.” In her book Flawed Convictions: Shaken Baby Syndrome and the Inertia of Injustice, to be published next year, she discusses how law enforcement and the courts lag behind what is known medically and scientifically about Shaken Baby Syndrome.
The Mendez case underscores this battle. While Berkowitz described shaking as the likely cause of Emmanuel's brain swelling, medical examiner Wang said at the preliminary hearing that shaking could not be the cause because “the triad” of three indicators promoted by SBS adherents was not present: The baby had no retinal hemorrhaging and only barely measurable bleeding.
But after consulting with his superiors — and receiving a private report from Dr. Berkowitz — Wang decided someone had attacked the baby. He testified that Emmanuel died from “traumatic head injuries.”
Heather Kirkwood, a veteran Seattle attorney dedicated to clearing parents and others imprisoned based on “expert” testimony that blames Shaken Baby Syndrome, has reviewed the Mendez case for Loyola's Project for the Innocent. She tells the Weekly that the sworn opinions of pediatricians, children's hospital ER doctors and medical examiners are so trusted by juries that even if there's an alternate explanation — as is the case with Emmanuel Martinez, who fell on concrete before he died — “they might as well have set up [these kind of] trials in the children's hospitals and just be done with it.”
Kirkwood has advised Loyola's Levenson that the Mendez case is “very strong” for a challenge because of the baby's fall on concrete, as well as a respiratory illness that sent him to a pediatrician the day before he died. “Everything seemed a reach,” Levenson says, “starting from the presumption she murdered the child, rather than standing back and questioning another option, an innocence option.”
Medical experts who reviewed the case for Loyola and the Weekly were stunned that attorney Oliver failed to probe holes in prosecutor Castano's abusive head trauma theory or Berkowitz's shaking theory.
Instead, Oliver proffered a theory entirely at odds with the coroner's findings. His sole expert witness, San Bernardino County chief medical examiner Dr. Frank Sheridan, testified that the baby died from a breathing problem such as an asthma attack.
Sheridan told the Weekly he ruled out abusive head trauma and shaking, in part because the baby did not show “the triad” of indicators and had little bleeding in his brain. But Sheridan was at a disadvantage fighting Berkowitz because medical examiner Wang failed to take photos of the baby's brain. “If it's a case with a head injury, you need to take photos of the brain, and there were none,” Sheridan says. “That's a major gap in an autopsy.”
Wang insisted to jurors that photos were discretionary, and that the brain injuries were detailed in X-rays and CT scans.
But Levenson calls it “extraordinarily significant that Wang didn't take pictures. … In fact, it is outrageous. This was a subpar autopsy that continues to prejudice our client. Because Wang failed to document any observations, it is very difficult for our experts now to determine how big or small the subdural and arachnoid (hemorrhages) were, as well as to determine if there were any other abnormalities in the brain.
“I wonder what Dr. Berkowitz would say if we sat around a table and said, 'Do we really know what happened here?' ” Levenson asks.
Loyola's Project for the Innocent asked Dr. Gabaeff, a forensic medical practitioner in Carmichael, to evaluate Emmanuel Martinez's medical records. He is reviewing about 100 cases in which parents, grandparents, baby sitters and others with no history of abusing a child, nor any risk factors such as mental illness or alcoholism, have been accused of killing through Shaken Baby Syndrome/Abusive Head Trauma.
Gabaeff says pediatricians and prosecutors are biased by a desire to convict, ignoring research that casts serious doubt on their beliefs. He knows of hundreds of parents, grandparents, aunts, uncles, baby sitters and others in prison, and he openly derides the physicians and prosecutors who put them there: “They should be indicted for felony malpractice. They've created a bogus field of science … a dogma.”
Gabaeff says the most likely scenario is that Emmanuel was killed by two accidental falls, one on concrete that cracked his skull and the second, off the sofa, exacerbating the first.
“We've really learned how wrong we were,” Levenson says. “It was a fad. … They [pediatricians and prosecutors] believed sincerely they were right, but they weren't. There's been a rash of cases that weren't justified and people were hurt along the way.”
The Mendez children were shattered by their mom's imprisonment — Raquel went into a tailspin and little Daniel fell into severe depression and was placed in counseling. Rebecca put all her fight into getting back Rocio and Daniel and her two nephews after the child protection system stepped in. Rebecca prevailed, but her challenges have been enormous.
“At times it gets really, really bad and I want to give up,” the earnest woman with long dark hair and an engaging smile says. “But I don't. I think about my mom and I get the strength to go ahead. I promised my mom.”
Raquel, the baby's mother, has signed a release for all medical records in the case from Harbor-UCLA Medical Center; Levenson says her team is awaiting compliance from the hospital. Levenson hopes District Attorney Jackie Lacey, who was not the DA when Mendez was prosecuted, will join their requests to assemble the records.
Cases such as Maria Mendez's, now in her seventh year of imprisonment, have to be challenged, Levenson says, “because there are no disposable people.”
Reach the writer at firstname.lastname@example.org.