A Shaken-Baby Case Sent Krystal Voss to Prison — Can New Evidence Free Her?
The exercise in mass hysteria known as the Salem witch trials lasted little more than a year. Nineteen people were hanged, and one was pressed to death with rocks. Hundreds of others, mostly women, were accused of practicing the dark arts but spared execution.
Fifty of them confessed to being witches.
The phenomenon known as Shaken Baby Syndrome is now in its fourth decade. Diagnoses of SBS have led to hundreds of criminal convictions of people who, it is said, badly injured or killed young children by shaking them with great force. In almost all of the cases, medical experts called by the prosecution have insisted that the victim’s injuries could only have come from a violent shaking, or possibly a shaking along with slamming the child’s head into something.
A cornerstone of SBS prosecutions is that baby-shaking produces a unique constellation of symptoms, and that the presence of those symptoms proves that a shaking must have occurred. A wide range of pediatricians, police and child-abuse investigators have embraced this concept, the way a preacher embraces his holy book. Confronted with such certitude, it’s not unusual for suspected perpetrators to admit to a shaking of some kind, though they are often at a loss to explain how whatever they did caused such damage.
But that doesn’t matter. Once you “confess” to shaking a child, you’re doomed. The conviction rate of caregivers accused of shaking children has been estimated at 95 percent, and a confession, no matter how improbable, seals the deal.
That’s how it worked in the prosecution of Krystal Voss, who’s now serving a twenty-year sentence in the Colorado Department of Corrections for child abuse resulting in death. The Voss case is a textbook example of how the controversial SBS diagnosis has been used to put people in prison; to Voss’s supporters and a growing chorus of SBS skeptics, it’s also a dramatic demonstration of a dangerous, misapplied theory and the flawed science behind it.
Damien Gaston and Voss met at Wild Oats; son Kyran was born at home.
On January 31, 2003, Voss showed up in an Alamosa hospital’s emergency room with her seventeen-month-old son, Kyran. Voss explained that earlier that afternoon she’d left Kyran in the care of a friend visiting from Denver, Patrick Ramirez, while she went to work at a local health-food store. About an hour after arriving at work, she’d gotten a phone call from Ramirez, telling her to come home because something was wrong with Kyran. She’d rushed home and found her son limp and unresponsive.
Ramirez told her he’d been playing outside with the boy on his shoulders. He’d stumbled. Kyran fell, and the boy might have hit his head on the ground. Ramirez fell on top of him. Kyran started hollering, then seemed dizzy and unable to stand.
The emergency-room doctor noted bruises on the child’s abdomen and signs of an acute subdural hematoma — a bleeding inside the skull. Kyran was soon flown to the intensive-care unit at Children’s Hospital in Denver, while the investigation into how he suffered such a severe head injury lurched into overdrive. Ramirez had been with Voss when she took her son to the ER, but he’d left before the Alamosa police investigator assigned to the case, Sergeant Harry Alejo, could question him. Alejo eventually reached a distraught Ramirez by phone. Yelling and crying, Ramirez reported that he was in his car, on his way back to Denver; he wasn’t sure where he was or what was going to happen to him.
Alejo persuaded Ramirez to turn around and come back to Alamosa to be interviewed. In that taped interview, Ramirez described in detail how Kyran had fallen off his shoulders — the same story he would tell to several people over the next few days while apologizing repeatedly to Voss for the accident.
Alejo had many questions for Ramirez. What was a grown man with his own family doing driving 230 miles from his home in Denver to babysit for another couple? Ramirez explained that Voss and her husband, Damien Gaston, had an open marriage, and that Ramirez and Voss had been briefly involved in a sexual relationship, although now they were “trying to develop more of a friendship and kind of back off from the sexual thing.”
The sergeant wasn’t at all satisfied with Ramirez’s story about the boy falling from his shoulders. As he would later note in an affidavit, a child-abuse expert at Children’s had informed him that Kyran’s head trauma was “more likely the result of violent shaking, an injury more commonly termed ‘Shaken Baby Syndrome.’”
Alejo brought Ramirez in for a second interview two days later — and all but invited him to accuse Voss of harming her son. “I think that possibly there’s more to the story,” he said, “as far as you trying to cover for her. Or the injuries happened in a different way and you’re afraid to tell me.”
Ramirez insisted he was telling the truth. Kyran fell. But he also admitted to drinking beer and smoking marijuana that morning. At the conclusion of the interview, Alejo put Ramirez under arrest, charging him with child endangerment. The dogged investigator then turned his attention to Krystal Voss.
Shortly after Ramirez’s arrest, Alejo had a lengthy, unrecorded interview with Voss at Children’s Hospital. Increasingly accusatory and confrontational, he insisted that Voss must have done something to produce the injuries the doctors had observed. “You shook him, didn’t you?” he asked.
Sleepless for four days at that point, the tearful mother eventually wrote a statement admitting that she’d had a hard time in bed with a gassy, restless Kyran the night before Ramirez arrived: “I grabbed him out of bed and shook him 2-3 times, and probably more violently than I meant to…then sang him his song and rubbed his tummy, he went back to sleep to awake later. I told Damien (woke him up) and said I needed help with the baby, that I didn’t want to hurt him.”
The next sentence was squeezed onto the page — at Alejo’s insistence, Voss would later testify: “In looking back, he’d already been hurt.”
Armed with that statement, Alejo then conducted a third interview with his other suspect. After three nights in jail, Ramirez was now eager to renounce the entire story of the fall. Kyran had already been hurt when he arrived, he said, and Krystal had urged him to help her “make up a story” so that her son wouldn’t be taken away from her. When he saw how badly the kid was doing, he called her up at work in a panic. “This whole time I’ve been covering for Krystal,” he said.
Voss was arrested and charged with child abuse; after Kyran died in foster care seven weeks later, of causes attributed to the head injury, the charge became first-degree murder. But Voss didn’t act like a murderer. She turned down a plea deal that would have resulted in a prison sentence of fewer than five years and insisted on going to trial. Against her attorney’s advice, she gave an interview to Westword (“The Death of Innocence,” July 31, 2003). She insisted that Ramirez was lying and that her “confession” was coerced nonsense, that she’d done nothing more than “jostle” her son the night before he was hurt.
At trial, though, the relentless machinery of the SBS diagnosis held sway. A medical expert asserted that the fatal injuries were consistent with a violent shaking. Voss had admitted to shaking her child, however she tried to minimize it. The jury took only six hours to deliver its verdict: guilty of knowing and reckless child abuse resulting in death.
A great deal of research about the causes of head trauma in children has been done in the eleven years since the Voss verdict. The SBS hypothesis has been challenged and found wanting in dozens of articles and a few books; it’s also the subject of a new documentary, The Syndrome, that depicts SBS as a construct of junk science, injected into criminal proceedings with devastating results. The basic premise behind the shaken-baby prosecutions has, in fact, been under attack for decades, raising questions about why law enforcement officials have continued to pursue such cases with unabated zeal.
Voss is now seeking a new trial, based largely on the claim that the injuries her son suffered didn’t come from a shaking at all. The recently filed appeal, which she and attorney Jeffrey Walsh have been working on for the past five years, claims that her trial attorney failed to adequately challenge the prosecution’s expert testimony. It also cites “newly discovered evidence” that reflects “a wholesale shift in mainstream medical thought” about SBS. The filing includes affidavits from three top SBS debunkers, highly regarded specialists who all insist that the fatal injuries incurred by Kyran Gaston-Voss could have resulted from an accidental fall.
For Voss, the struggle to overturn her conviction has been a long, painful education in the shortcomings of the medical establishment and the criminal-justice system. “It’s crazy that, with the science and technology we have, things aren’t investigated further and people are prosecuted on a whim,” she says. “From the moment Kyran was injured, for three solid years I was in a state of shock — not knowing where to go or how to understand what had happened. It was very confusing. There was a point where I was so depressed I had to force myself to eat.
“I wanted to believe there was no way a jury would logically convict me. It took at least four or five years before I started delving into the documents, and even more time to be granted a lawyer and a hearing. But I never gave up hope that things could change, because what happened here was so very wrong.”
Krystal Voss has spent the last ten years fighting her conviction for child abuse — a decade during which the theory behind Shaken Baby Syndrome has come under intense attack.
Krystal Voss was 27 years old when Kyran was born, in a tub of warm water, on August 3, 2001. She’d met her husband, Damien, three years earlier, when both of them were working at a Wild Oats store in Aurora. The couple shared a passion for natural foods and herbal medicine and longed to raise their son out in the country.
They moved from Denver to Alamosa when Kyran was eight months old, with the aim of building a solar-powered home on five acres they’d bought at the edge of the Sangre de Cristo range. Voss found a part-time job at the local organic-food co-op, while Gaston worked for an irrigation engineering company.
Despite their discreetly “open” marriage — a result of Voss’s interest in intimate, polyamorous relationships with the consent of all spouses, as opposed to casual swinging — Voss and Gaston were regarded as outstanding parents by just about everybody who knew them. Voss was particularly vigilant about her son’s health and diet, and many relatives would later aver that they never saw her lose her temper with the baby. “I’ve known Kyran since he was a day old, and that kid was surrounded by nothing but the highest quality of love,” one longtime friend of the couple told Westword back in 2003.
The medical evidence presented at Voss’s trial, as interpreted by the prosecution’s expert witness, told an entirely different story. The injuries suggested that Kyran had been shaken with tremendous force. According to the expert, they could not have been inflicted unintentionally, by someone jostling the child out of frustration or trying to revive an unresponsive child. This was cold, calculated rage.
“This is the kind of violent shaking that, any reasonable person would know they were going to hurt the child,” testified Kathryn Wells, a pediatrician at Children’s Hospital.
Wells, who serves as a child-abuse consultant for Denver Health, Denver Human Services, the Denver Police Department and several other agencies, was part of the team that examined Kyran at Children’s shortly after his injury. She’s also the doctor who informed Alejo that he was looking at a shaken-baby case. SBS proponents maintain that there’s a triad of symptoms that prove a child has been violently shaken: brain swelling (cerebral edema), blood pooling on the brain surface (subdural hematoma) and retinal hemorrhages. Using a PowerPoint, Wells explained to the jury that Kyran exhibited all three symptoms, as well as other signs of head trauma that led her to theorize that he’d been slammed against a soft surface, such as a bed, after a violent shaking.
Voss’s court-appointed trial attorneys, Ernest Marquez and Wayne Cole, didn’t call a medical expert to rebut Wells’s presentation. Much of the defense strategy seemed to focus on attacking the credibility of Patrick Ramirez and accusing him of shaking Kyran rather than disputing the SBS diagnosis itself. (The state’s star witness, Ramirez had taken a plea deal and received a sentence of one year in prison for reckless endangerment and tampering with evidence.) But while Ramirez’s shifting story made him a logical target, it was difficult to conjure up a trigger, let alone a motive, for the sudden explosion of rage Wells had described. Ramirez had been alone with Kyran for only an hour or so; what could have prompted such a violent shaking?
Of course, the case against Voss had its problems, too. Although Ramirez claimed to have seen bruises on Kyran before, there was no documented history of child abuse. (In many SBS cases, there are no signs of prior injuries, which is somewhat atypical in child-abuse investigations.) Wells testified that Kyran’s bruises “seemed to be in different stages of evolution,” but she also conceded that dating bruises with any kind of specificity is tricky.
Even more troublesome, the shaking that Voss described didn’t fit, time-wise, with the injuries Wells had observed. The shaking had supposedly occurred the night before Ramirez arrived, while Kyran was in bed with Gaston and Voss. Gaston insisted that Kyran was behaving normally the next morning; Kyran’s grandfather also heard him laughing in the background when he telephoned that morning. But Wells maintained that the effects of the violent shaking and slamming would be immediate; the victim would not be behaving normally six or ten hours later. The prosecution tried to finesse that contradiction in closing arguments, proposing that Voss could have shaken Kyran right before Ramirez arrived. But Judge John Kuenhold instructed the jury to disregard that claim: “There is no evidence of a shaking the next morning.”
Yet the larger holes in the prosecution’s case were scarcely addressed at trial. The death certificate for Kyran Gaston-Voss makes no mention of Shaken Baby Syndrome. According to the autopsy report, the boy died from injuries “incurred when the deceased was either struck by a blunt object or hurled against a blunt object.”
“I don’t believe in shaken babies,” Robert Bux, the medical examiner who performed the autopsy, told Westword in 2003. “I find it difficult to swallow the concept of [SBS]. It doesn’t exist.”
Many forensic pathologists — as well as physicists, radiologists, pediatric neurologists and other specialists — are skeptical of the assumptions underlying the SBS prosecutions. Biomechanics studies on primates dating back half a century have established that it requires a tremendous amount of force to cause the whiplash-like, acceleration-deceleration injuries attributed to SBS, far more than even the most enraged weightlifter could manage. Any child shaken hard enough to cause brain injuries — particularly a big, 26-pound toddler like Kyran — would also exhibit obvious neck injuries. Yet neck damage is almost never found in so-called shaking cases.
In addition, the supposedly infallible unique symptoms associated with SBS, the infamous triad, turn out to be not so unique. Meningitis, venous thrombosis, vitamin deficiencies and a host of other illnesses can mimic the triad. So can accidents. Although SBS experts have maintained that “the baby fell down” defense is invariably a lie, research shows that even short falls can produce lethal epidural or subdural hematomas.
“Over time, the meaning of the triad has become less sure as new explanations for it have emerged,” writes Northwestern University law professor and former prosecutor Deborah Tuerkheimer in her 2014 book Flawed Convictions, which shreds SBS claims into confetti. “Many convictions, however, rest on the old SBS.”
The cracks in the foundation of the shaken-baby theory were widening even at the time Voss went to trial. But her attorneys chose not to make the syndrome an issue in the case. They heaped blame on one accuser, Ramirez, but failed to respond to the biggest accusation of all — that Voss had shaken her baby, and had done it so violently that there was no doubt of her intent to harm her child.
“Wells’s testimony was everything,” Voss says now. “The jury was just laypeople. They needed an expert to guide them through this medical evidence. She had all the answers. She had a PowerPoint. And she essentially pointed her finger at me. She said a couple of times that someone would know they were going to hurt the baby by doing these actions. We didn’t have a fair chance at all without a medical expert on our side.”
Cousins Meryl Goldsmith (left) and Susan Goldsmith made the documentary The Syndrome.
Susan Goldsmith knew the attacks were coming. A veteran journalist who has covered child-abuse issues for The Oregonian and Los Angeles New Times (a now-defunct weekly owned by the former parent company of Westword), Goldsmith knew how deeply invested some prominent members of the American Academy of Pediatrics were in promoting Shaken Baby Syndrome. So when she and her cousin, director Meryl Goldsmith, decided to make a documentary about SBS, she braced herself for blowback.
She didn’t have to wait long. Just before the first public screening of The Syndrome last fall at the Kansas International Film Festival, organizers received a letter from the National Center on Shaken Baby Syndrome, denouncing the documentary as a deadly contagion that required immediate quarantine.
“We are concerned that the film contains inaccurate and misleading information…that may result in serious public health risks,” the letter states. “Should viewers leave with the impression that shaking an infant does not cause serious harm that could result in death, numerous infants could be put in significant danger.”
Similar letters went out to two other film festivals, hinting at legal action. At all three festivals, organizers declined to cancel the showing of The Syndrome. At a screening in North Dakota, caretakers showed up with battered children in wheelchairs, carrying signs that declared, “I Am Not a Myth” — and engaged in a confrontational question-and-answer session with the filmmakers.
“It’s a very emotional issue,” Goldsmith notes. “The festival organizers have been told that by showing our film, they are promoting child abuse.”
Actually, nothing in The Syndrome suggests that shaking a baby is a good idea, or that child abuse isn’t a serious public-health and -safety issue. The film’s primary subject, though, is another kind of abuse: the abuse of science. It traces how SBS evolved from a hypothesis to a diagnosis to an engine for dubious prosecutions, all with an alarming lack of empirical research, skepticism or critical review from the legal and medical communities. As one debunking pathologist puts it in the film, “People are being convicted of crimes that did not occur. It has resulted in thousands of families that have been destroyed.”
The origins of SBS can be traced back to a theory developed in 1971 by Norman Guthkelch, a British pediatric neurosurgeon, to explain why some cases of subdural hematoma in infants showed no signs of an impact injury. Guthkelch suspected that the damage could have been inflicted by whiplash-like “shearing strains” — in other words, by shaking rather than striking the child. Other researchers built on Guthkelch’s work, recognizing that the forces he described might be one way of explaining baffling head-trauma cases that exhibited no traces of external injury.
In the mid-1980s, SBS emerged as a full-fledged “syndrome” in court cases. By the 1990s, it had become a pediatric crusade, complete with public-service TV spots warning parents to “never, ever shake a baby.” The syndrome’s watershed moment came during the 1997 trial of British nanny Louise Woodward, accused of shaking to death an eight-month-old Massachusetts infant. Woodward was convicted of second-degree murder, but the conviction was later reduced to involuntary manslaughter and her sentence reduced to time served. Goldsmith says the vigorous defense put on in the case revealed many of the problems with SBS.
Since the Woodward case, an array of medical specialists have publicly denounced SBS and criticized the research behind it as insufficient. Even Guthkelch, now in his nineties, has taken exception to the way prosecutors have applied his theory in criminal cases while ignoring other possible causes of head trauma.
“The shaken-baby paradigm is in total, total collapse,” Goldsmith says. “It’s been completely discredited scientifically. Yet there are at least a thousand people in prison for this — and countless others who took plea deals. It’s a real nightmare.”
In recent years, proponents of SBS have tended to back away from the term, preferring language that implies a direct blow to the head as well as shaking (“shaken impact syndrome”) or the current prevailing phrase, “abusive head trauma.” “The existence of AHT in infants and young children is a settled scientific fact,” declares a fact sheet found on the website of the National Center on Shaken Baby Syndrome, which estimates that abusive head trauma is responsible for 1,200 serious injuries and at least eighty infant deaths a year.
But AHT is a slippery term, too. The Syndrome contends that there’s often no immediate way to distinguish between a brain injury caused by a fall and one that’s deliberately inflicted. Yet the triad continues to have its staunch defenders, including a triad of distinguished physicians who are singled out in Goldsmith’s film: David Chadwick, Robert Reece and Carole Jenny. In the 1980s, all three were involved in legitimizing the hunt for supposed satanic-ritual abusers of children, and all three have been champions of SBS, under whatever name is currently in vogue. (In the early 1990s, Jenny was part of a child-abuse team at Children’s Hospital in Denver that misdiagnosed an infant’s case of glutaric aciduria, a rare brain-swelling disorder, as the result of abuse; a lawsuit by the parents against the hospital resulted in a confidential settlement.) Chadwick, Reece and Jenny all declined to be interviewed by the filmmakers.
Other doctors have had second thoughts. One of the debunkers featured in The Syndrome is Patrick Barnes, a pediatric neuroradiologist who practices and teaches at Stanford University Medical Center. Barnes was an expert witness for the prosecution in the Louise Woodward case, but the evidence put on by the defense in that trial prompted him to question the assumptions behind SBS. He’s now regarded as a traitor to the cause because he has testified for the defense in alleged SBS cases. Raising doubts about the triad, he says, “actually threatens the entire Shaken Baby Syndrome working group and industrial complex.”
Barnes is also one of the child-abuse experts who filed an affidavit in support of Krystal Voss’s appeal of her conviction. In that affidavit, Barnes disagrees with Dr. Wells’s assertion that the injuries Kyran suffered could only have come from a shaking and slamming. Based on the medical evidence, he concludes, it’s just as likely that the boy was hurt exactly as Ramirez first claimed, before he changed his story.
“If Kyran fell from his babysitter’s shoulders and hit his head on the ground,” Barnes says, “this type of accident could have caused the brain injury Kyran suffered here.”
Dr. Wells and Crista Newmyer-Olsen, the prosecutor opposing Voss’s motion for a new trial, did not respond to requests for comment.
At seventeen months, Kyran was rushed to the ICU at Children’s Hospital in Denver with a severe head injury.
Krystal Voss turned thirty a few months before she was sentenced to twenty years. She spent the next nine years in one Colorado women’s prison or another. She worked in the kitchen and in a print shop. She tutored other women who were studying for their GED. She and Gaston divorced.
Voss’s record in prison was that of a model prisoner and a low public-safety risk — so much so that in 2013 she was moved to a halfway house. She now has her own apartment and full-time job, but she’s still, officially speaking, an inmate of the Colorado Department of Corrections. She wears an ankle monitor, reports to a parole officer twice a month, calls a number every day to see if she’s been selected for random drug testing. Even though she now lives in the community, she has been turned down for parole four times. The board has refused to grant her parole, she suspects, because she continues to maintain her innocence and thus has failed to “take responsibility” for her crime.
“They keep saying, ‘You’re not ready,’” she says. “I want to say, ‘No, you’re not ready.’”
Voss’s motion for a new trial essentially argues that SBS became so firmly entrenched in the legal system that many people involved in her case — prosecutors, investigators, her own lawyers — failed to do their job. In pursuit of elaborate coverups, they failed to embrace the problem-solving approach known as Occam’s razor, which maintains that the simplest explanation is usually the correct one. “I’ve always believed that Ramirez’s very first statement was really the truth,” she says. “Listening to the sound of his voice on the [interview] tapes, I really believe it happened just like he said it did: There was a big fall.”
At trial, Wells told the jury that Kyran must have been slammed into a soft surface, such as a mattress, because CT scans showed a brain injury consistent with impact — but there was no evidence of impact with a hard surface, such as the fall Ramirez described. At a preliminary hearing, however, Wells conceded that she hadn’t been able to identify a source for some “petechial bruises” on the head. The bruises apparently didn’t matter in the larger scheme of things, because it was an axiom of SBS that a fall from someone’s shoulders couldn’t wreak the kind of havoc that had occurred in Kyran’s brain.
Yet the Children’s Hospital admission records for Kyran include a notation by another doctor that was ignored by defense and prosecution alike: The back right side of Kyran’s head had a bruise that was “consistent with accidental trauma.” That observation, which supports the account of a fall, is cited prominently by all three of the experts who’ve filed affidavits in support of Voss, as evidence that Wells’s conclusions about a shaking and a slamming are wrong.
“A lot of this should have come out at trial,” Voss says. “At the time, I basically wasn’t dealing with it. I thought, ‘They’re the attorneys; I’ll let them deal with it.’ They kept telling me we were going to have an expert of our own, but we never did.”
In prison, Voss earned certification as a caregiver in a program that provides assistance to elderly and disabled prisoners. She would like to seek similar work on the outside, but nursing-care facilities aren’t keen on hiring people with a felony record. She is seeking vindication for many reasons, she says, but one is simply the need to earn a living.
“It would release me from that label,” she notes. “It would allow me do the kind of work I want to do. I would like to learn to be an EMT. There are so many things I want to do.”
She pauses, trying to find the right words for what was lost and cannot be recovered. “And I think Kyran’s soul would rest easier,” she says, “with the truth being known.”
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