by David M. Reutter
The admission of expert opinion based on science is powerful evidence that is supposed to assist the jury in determining the truth surrounding an event. When a flawed opinion comes into play, the scales of justice become tilted.
Those scales were titled when Dr. Matthew Cox became involved in two child-abuse burn cases in Texas. Cox is part of the growing subspecialty of doctors who assist child-welfare investigations. He completed a pediatric fellowship in Philadelphia and evaluated hundreds of cases of suspected abuse in the years that followed. Then he became the medical director of the Referral and Evaluation of At-Risk Children at Children’s Medical Center in Dallas.
Cox examined a two-year-old with serious burns on her feet up to her ankles. Cox reported the injuries to authorities and later testified, “The pattern of her burn injuries is what I would call a forced immersion.” When pressed by a defense attorney, Cox doubled down: “Absolutely, this is child abuse.”
That testimony was based solely on Cox’s experience and opinion of what occurred. The judicial system gives great weight to the testimony of alleged experts. To be admitted as an expert witness, one needs to have training and experience in the area concerning their testimony. In recent decades, a troubling amount of junk science has passed for hard scientific evidence, resulting in innocents being convicted.
The FBI lab was exposed as a purveyor of bad science. Its lab technicians have been exposed as giving testimony on hair and bullet-lead analysis that was later proven to have no actual basis in science. Yet the testimony of the experts was accepted by courts and juries as scientific fact.
Likewise, when Cox testified at the September 2012 trial of Kenneth and Shelley Walker, then 55 and 60, his opinion testimony was given great weight despite the fact another doctor doubted that child abuse was involved. The Walkers were convicted and sentenced to 25 years in prison.
An October 2016 opinion by the Texas Court of Criminal Appeals found the jury should not have relied upon Cox’s burn-pattern evidence because he “did not base his opinion on the particular facts of this case.” The Court noted he relied on an incorrect estimate of the water temperature, and he never considered the configuration of the sliding-glass-door enclosed bathtub, which could have caused the child to become trapped. He also failed to consider that the Walkers had medical issues that would have made it difficult for them to hold the toddler in hot water.
Other child experts say that failing to consider more than the injuries the child incurred is a flawed technique. Yet Cox never considered factors outside of those injuries.
Jessica Byas-Lurgio said when she moved from Illinois to a Dallas apartment she was burned while taking a shower. Byas-Lurgio, 35 at the time, was caretaker of her half-brother and sister, Nicole, after their father died, as well as her own two boys. She heard three-year-old Nicole call for her on June 27, 2015, from the bathroom. Nicole had one leg in the bathwater and the other out of it. She was seemingly frozen in place as steam rose from several inches of deep water.
When Byas-Lurgio lifted Nicole from the water, it didn’t appear too serious, but as she went to dry her, Nicole’s skin slid. Paramedics were called, and Cox examined Nicole, who suffered second- and third-degree burns on her buttocks, the back of her right thigh, along the majority of her right leg, and on her feet, at Parkland Memorial Hospital. He explained the injuries did not appear accidental.
Two days later, Cox sent a report to Child Protective Services. “The pattern of the burn injuries is not consistent with a history of a child climbing into a tub on her own,” Cox wrote. “The extent a pattern of her injuries is consistent with immersion into scalding hot water and child physical abuse.”
Cox signed an affidavit on June 30, 2015, and the next day, a police investigator went to Byas-Lurgio’s apartment. He cut the padlock of the hot water tank and discovered it was set at the maximum temperature of 150 degrees, which can cause instantaneous second- and third-degree burns. The U.S. Centers for Disease Control and Prevention recommends that hot water heaters be set no higher than 120 degrees. The officer also found the water in the tub reached 134 degrees after 20 seconds but made no measurements after that time. The tub was measured to be just 11 inches high, making it likely for a toddler to climb in on their own. None of these facts were contained in Cox’s report.
When looking for a “classic forced immersion burn pattern,” doctors are trained to look for “well-defined lines between burned and unburned skin.” That is insufficient information, says Dr. Robert Sheridan, the burn unit director at Shriners Hospital for Children in Boston and a professor of surgery at Harvard Medical School.
“I don’t know that you can tell the difference always,” he said. “I don’t know that you can hang your hat entirely on burn pattern in the absence of other information.”
The Department of Justice has issued a training document that instructs it is evidence a child was forcibly held against the bottom of the tub when the soles of the feet are not burned. “A child cannot jump up and down in hot water and not burn the bottoms of the feet,” the document states.
When questioned on the point that the Walkers’ granddaughter had burns on the bottom of her feet, Cox had an alternative theory. He said it meant the toddler’s feet were dipped in the scalding bathwater without pressing them against the bottom.
Cox also insisted that the lack of splash burns higher up the toddler’s legs was indicative that she was held and not hopping from foot to foot. He was pressed by the Walkers’ attorney about a research paper published in The Journal of Pediatrics that found water below 130 degrees will not typically cause splash burn, but Cox said he was unaware of that research.
While he acknowledged that police measured the water in the Walkers’ tub at 129 degrees, he said the information had no effect on his opinion. “Her pattern of burns, no, couldn’t be accidental,” Cox said. “It’s just flat out nonaccidental.”
The Texas appellate court disagreed. “We do not know, nor can we know, how the child came to be injured without resort to speculation,” the Court wrote in an October 19, 2016, opinion. “Putting a scientific gloss over that speculation does not make the evidence more uncertain. Both defendants are entitled to acquittal.”
The author of that opinion, Justice Cheryl Johnson, was highly critical of the judge who allowed Cox’s testimony into evidence. “[Cox] was so wrong and so ignorant of the facts,” Johnson said. “I would have stopped the proceedings and said, ‘Just a minute here. You are going to have to justify all of this. Otherwise, I’m kicking you off the stand.’”
The Walkers were acquitted and released after four years and have been able to move on with their lives. That, however, has been a harder task for Byas-Lurgio. Following the advice of her attorney, she accepted an open guilty plea of reckless endangerment of a child, for she knew she failed to keep a close eye on her sister. She believed the lesser charge would help her avoid prison.
By the time her sentencing hearing took place, Cox had gone to lead a child abuse team in Boise, Idaho. In his steed, the prosecution called Dr. Suzanne Dakil, who replaced Cox at the Children’s Medical Center. She testified Nicole was “either being held in the water or felt that she could not move for some reason.” Dakil said it would take “a half a minute or so” for a child to sustain third-degree burns in 150-degree water, contradicting research that finds such burn can occur instantaneously or within seconds at those temperatures.
The court sentenced Byas-Lurgio to 10 years in prison. Nine months later, a judge gave her a break and put her on shock probation. The experts’ opinions in her case caused her to lose custody of her siblings, who were adopted by a Texas family. Back in Illinois, Byas-Lurgio was reunited with her two sons. Prior to her conviction, Byas-Lurgio had been a child therapist and teacher, but she had been unable to pass a background check to continue in those professions. She has hopes of becoming a forensic investigator to help parents in the same position she once found herself, NBC News and the Houston Chronicle reported in 2019.
Research has found that child abuse is enhanced based on economic status and other social factors. Black and Hispanic families are more likely to be investigated for child abuse than white families. “Think less, screen more,” is a campaign some doctors push to lessen those disparities.
A 2001 paper authored by two Harvard Medical School researchers looked at nine cases, three of which involved children seriously burned by bathwater. They found the reporting pediatricians did not seem to consider or understand the impact of water temperatures or the time of exposure when making their conclusions.
“The finding of guilty because of inadequate analysis or basic prejudice is anathema to our system of justice,” the report authors concluded, “and the impact on the child and the family can prove devastating and lasting.”
Sources: Houston Chronicle, NBC News
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