CHRISTIE'S FINAL SUBMISSION installment 9 Sergent, Gardiner and Alexander / 499

On Friday we published points 21-26 from the transcript of Doug Christie's final SUBMISSION IN RESPONSE to Finn Jensen's closing summation. It was delivered on behalf of Paul and Zabeth Bayne on November 4, 2010. This is a public document. This is the ninth installment in a brief series of quotations.

Today in Christie's own words, here are... Submissions and Analysis, points 26-29 continued ….

CHRISTIE'S FINAL SUBMISSION installment 4of10 Options for the Judge / 492

The case is Paul and Zabeth Bayne in opposition to the application by the Director of Family and Child Services with respect to the ongoing care of the Baynes' three children. This is the fourth installment in a brief series of quotations from Doug Christie's final SUBMISSION IN RESPONSE to Finn Jensen's closing summation. It was presented November 4, 2010 to the Court (Judge Crabtree) on behalf of Paul and Zabeth Bayne. This is a public document. No ban was placed on court presented material. The judge considered this submission in coming to his final conclusion presented on March 2, 2011.

On Friday I quoted Christie's Submissions and Analysis points 5-7.  Today it is... points 8-10 discussing possible options for the judge's ruling.

A GRIEF OBSERVED / Part 332 / For Love and For Justice / Zabeth and Paul Bayne

A Grandmother and a grandfather sat helplessly. Yesterday I described the small court room in which Mr. Jensen delivered the final hours of his Summation. The judge's bench and the clerk's desk and the table and chairs of the legal staff and defendants comprised most of the space. Of the nine remaining chairs, two were occupied by these grandparents. Zabeth's parents they are. I paid attention to them because I too am a grandparent, proud of it, loving the relationships with little people that it provides to me. I am special because those grandchildren are extraordinary. I, however, have unfettered access to my grandchildren. These two people do not.

So I watched them as the Jensen words cut them deeply. They sat motionless, staring ahead, no longer shocked by what they were hearing because they have grown accustomed to their savage sound. They were grieving I thought, hardly bearing the insinuations against their daughter or her husband, perhaps imagining the worst possible outcome of this hearing.

Jensen pointedly directed Judge Crabtree that (1) his honour must find that there is need for protection, and that (2) he must therefore order the Continuing Care of the children. With such intense statement of objective, I found it interesting that Jensen then mentioned that contrary to what some people were saying, there are more than two possible rulings from which Judge Crabtree may select his verdict. In fact he said there is a host of alternative rulings beside either a CCO or giving the children back to the parents. Among these he suggested that Judge Crabtree might issue a Temporary Care Order, or a Period of Supervision, or place them in temporary care while the parents take further steps to satisfy the Ministry that they are indeed risk-free as it were. These were proffered to the Judge it appeared, as considerations should the judge come to the conclusion that the risk is still there but that the CCO is too final for this particular case. Who knows the precise motivation other than Jensen? But he did underscore that there should be no misunderstanding, that the Director's desired and appropriate ruling is a CCO. Yet Jensen implied that these other options might be considered. The Judge asked for some guidance on a Last Chance Order and that definition was discussed for a few moments.

Now all of this was at the conclusion of the first couple of hours during which Jensen reestablished Dr. Jane Gardner's paediatric ophthalmology qualifications and revisited her testimony concerning how she arrived at her diagnosis of the injuries, her opinion about extent of force needed to produce these injuries, her reactions to the hypotheses of the Baynes' experts. Then he focused upon Dr. Alexander's credentials and testimony, the foundation for his opinions being clinical records rather than information from Dr. Colbourne Jensen said. Alexander had disagreed with any theories that a short fall and particular that of a toddler upon the reclining infant could produce the extent of injuries Baby B sustained. Those injuries included subdural hemorrhages on both sides of the brain, retinal bleeding, a skull fracture and a chip off the long bone of the left femur. His testimony was that this was only due to a blunt force impact together with acceleration and deceleration. He even said that this force was the equivalent of that experienced in a car crash or a large fall from a great height, or child abuse. Well that's mighty frightening if it is to be believed. But that is precisely the obstacle. It does not have to be believed because it is still one man's theory against how many was it? Ten experts. Whose expertise Jensen discounted for numerous reasons stated in court. And that is his job. And the Judge's responsibility will be to conclude what and who is believable. What can be viewed as definitive?

Oh, I know, I know, Jensen would quickly respond to that. I will share again more of the Jensen summation tomorrow although I feel I have given him far too much air time or blog space. The transcript of these several days of Jensen are being prepared now.  

For Love and For Justice / Part 111 / Zabeth and Paul Bayne

The Best that Jensen Can Do
Part Two of Two Parts

Following the Hoffman testimonies, Finn Jensen called upon his heavyweights for testimony, Adrienne Glen and Dr. Margaret Colbourne. They represent the concern that arose within the child protection unit of Vancouver Children’s Hospital when Bethany was admitted, examined, tested and treated. Each of these women was doing a specific job to the best of her ability and each I must assume fulfilled her role with integrity. Adrienne, an intake social worker at the hospital, visited and conversed with the Bayne family and medical professionals and wrote timely reports and in the process expressed her opinions, sometimes about the Baynes. Dr. Colbourne, very connected to the Shaken Baby Syndrome theory through involvement with an international SBS organization and committed to the understanding that the presence of the diagnostic triad of (1) retinal bleeding, (2) bleeding in the protective layer of the brain, and (3) brain swelling, is predictably indicative of SBS, made that SBS diagnosis with Bethany in 2007. The testimony of each woman in court affirmed her report from 2007 and each report potentially discredited Paul and Zabeth as normal, concerned and loving parents and implied their responsibility in harming their child and by which Finn Jensen hoped to convince the judge that MCFD has acted from the outset upon accurate and trustworthy data. The snag for Jensen is that Counsel Doug Christie was able to cross examine both witnesses and consequently weaken the import of their testimonies. Glen was compelled to admit that her recorded perceptions that the Baynes spent relatively little time with Bethany in hospital were inaccurate and that they had in fact spent many daily hours in hospital with Bethany. Colbourne’s qualifications as an expert were questioned with regard to an absence of biomechanical training needed to ascertain whether or not Bethany's injuries were accidental or non accidental. Theoretically, Colbourne's SBS diagnosis would benefit greatly from the next witness.

Now came Jensen’s super heavyweight Shaken Baby witness, Dr. Randall Alexander from Florida, who has testified in over 300 similar cases and who was here to assure the court that unquestionably, Bethany’s injuries were the result of shaking. His towering persona began to dissolve when he was forced to admit that he wrote his SBS report on Bethany months before seeing the actual film work on Bethany a day before entering the witness box. He had to admit that he had not read Bethany’s birth records, reports concerning Bethany from area hospitals, or any of the ten experts' reports on Bethany that countered his SBS claim. It was clear to the judge that Alexander’s report had been written with incomplete medical information. What kind of evidence is this?

Most recently Social Worker Loren Humeny testified and was cross examined for almost the equivalent of four days. Under cross-examination Humeny was asked whether the risk assessment was written when he was in an adversarial position with the Baynes, because the MCFD was already seeking a continuing care order on all three Bayne children which the parents opposed. He admitted that the risk assessment was highly subjective and primarily his opinion. Christie stated that it had a dearth of factual evidence. It essentially vilified the Baynes and on the one page customarily assigned to summarize strengths, Humeny noted no strengths for them as individuals, as a couple or as parents, saying he didn’t know them, yet admitted that he had spent many hours with them in meetings. The hundreds of letters of reference in support of the Baynes, he admitted he knew about but had not read. So perhaps he doesn’t know them. Judge Crabtree will have to settle for himself whether that constitutes evidence. And this thus far is the best that Jensen has been able to do with what he has. All of this exchange is in court transcripts.

What seemed so strong, so ominous, is paler now and fragile.

For Love and For Justice / Part 107 / Zabeth and Paul Bayne

LOREN HUMENY – THE MAN TASKED WITH THE BAYNE CASE

Testimony Phase - Graduating with a Bachelor in Social Work, Loren Humeny has been a social worker for ten years and is presently an Intake Investigative Social Worker for the Ministry of Children and Family Development based out of Chilliwack. The Bayne file was his responsibility in collaboration with his supervisor, so he was the author of the report presented to Court. Mr. Humeny was in court to give testimony one week ago on February 2, 2010. At the end of that Tuesday, the cross examination by Bayne lawyer Doug Christie was postponed until Tuesday, February 09, 2010, in order to accommodate the testimonies of Dr. Colbourne and Dr. Randall Alexander both of which took place last week. Yesterday, Tuesday February 9, 2010, Mr. Humeny was back in the witness box for the cross examination portion.

According to Mr. Humeny’s testimony, the child protection unit of VCH (possibly Ms. Glen and/or Dr. Colbourne) alerted his office concerning the injuries to Bethany Bayne in the autumn of 2007. His investigative process included reports by and/ or conversations with Dr. Colbourne; and Vancouver Children’s Hospital social worker, Adrienne Glen, who was a member of the child protection unit; and Pastor Michael Hoffman* and his wife Elizabeth; as well as members of the Bayne extended family and Zabeth and Paul. His primary information sources were Dr. Colbourne and Ms. Glen and he told the court Dr. Colbourne’s opinions, treatment and prognosis. In a meeting on October 31, 2007 Humeny and his supervisor met with Paul and Zabeth, Zabeth’s parents, Zabeth’s sister and her husband and Ruth Hunt (friend) to review what he termed non-accidental injuries based on the medical report. Humeny was assigned to author the application for the Court Order as well as the narrative that supported the application.

He was in attendance together with his supervisor when apprehending the three children initially. Bethany was in hospital from the 19th to the 25th of October 2007 and on October 25, 2007 Bethany was placed in a Chilliwack foster home. No visits to Bethany were allowed to the Baynes during those initial weeks. He spent time with Zabeth Bayne’s parents prior to leaving the boys there with the stipulation that Paul and Zabeth could not be alone with the children in that home. He had numerous conversations with Zabeth during these days and weeks. He looked into sources of ‘collateral’ information about the Baynes. In looking for potential foster/ care homes for the boys should the need arise, Marvin (Surrey Council member) and Ruth Hunt offered their home in August 2008. They are Bayne family friends.

Testimony under Cross Examination – There was discussion about the Risk Assessment of which he is the author. It includes statements against the Baynes by what Humeny calls half a dozen ‘collateral witnesses’ who cannot be disclosed presently. The Risk Assessment also included statements from caregivers of the three children, the medical history from Dr. Colbourne and Humeny’s own findings. When Doug Christie asked why page 35 of the Risk Assessment was left empty, it was learned that this page would have contained a summary of the parents’ strengths. Mr Christie made the point that Mr. Humeny chose not to include comments such as the parents’ dedication and love and commitment to their son Baden during his three month hospital stay due to premature birth; and the commendations from their family doctor on their superior care of the boy during the at home care phase. Mr. Christie asked why Mr. Humeny did not mention some of the 350 visits that the Baynes have made to their children, and that they ask for more visitation opportunity. Mr. Christie queried why Mr. Humeny did not include the mother’s piano teaching experience with children over several years. Still pressed about this omitted page, Mr. Humeny stated that he did not feel that he knew the parents. This didn't wash with Christie because it was pointed out that Humeny had many meetings with the Baynes. Mr. Humeny was reminded that countless letters were written to the Ministry by friends and family and professionals which spoke positively to Paul’s and Zabeth’s home, character, forms of discipline used, interactions with their children, their involvement with others socially and otherwise, and the perceptions of students about Zabeth’s professional instruction. Mr. Humeny acknowledged that he was aware of this mail but he did not read the correspondence saying he did not have the time for it. He had relied upon the ‘collateral witness’ data and when cross examined, it was pointed out by Mr. Christie that that the support letters could have provided at least a balanced view of the Baynes if not call the ‘collateral witness’ data into question. Christie stressed that Humeny's risk assessment was written so obviously from an adversarial position it might be deemed hostile. Mr. Humeny's testimony under cross-examination recommences on Thursday at 9:30 AM at the Chilliwack Court House.

*The CBC News article entitled ‘Surrey Couple Challenge Shaken Baby Allegation’ published Thursday, January 14, 2010 | 2:51 PM PT is found here.

For Love and For Justice / Part 104 / Zabeth and Paul Bayne

A Report from Friday’s Court Session February 5, 2010 with Randall Alexander in the witness box.

Randall Alexander – A primary witness for the Ministry of Children and Family Development.

Proviso: Lawyer Doug Christie's questions to discredit the specific testimony of Randall Alexander in the Bayne case and my blog post here should NOT be interpreted as disapproval of efforts to prevent shaken baby and prosecution of criminal abuse of children.

This will have cost MCFD thousands of dollars. It would be different if 'Jason' Alexander had flown in from California. Remember ‘George Costanza’ from Seinfeld fame? At least then you could laugh. Instead, on Friday, directly from Florida, 'Randall' Alexander took the witness box to provide testimony for the Ministry of Children and Family Development. What he says is not a laughing matter. He is not humorous. It is the stuff of nightmares. For caregivers, falsely accused, his name on the roster of witnesses is always disquieting.

Doug Christie began to cross examine him as soon as possible. Alexander’s credentials were touted by MCFD lawyer Finn Jensen to bolster his credibility as a witness with expertise in determining whether shaken baby abuse had occurred with the Bayne child. His expertise has been accepted before in countless cases and on the basis of his testimony people have been found guilty of a variety of offenses. Many people are in prison today and many children are in foster care on the strength of his testimony. Christie’s dissection of Alexander’s credibility began with reference to a media account of a case in which a father was found guilty of murdering his six month old daughter and he was sentenced to life in prison. An Appeals Court judge found Dr. Alexander’s conduct shocking and prejudicial and his testimony was discarded and the defendant given a reduced sentence.

In a another case in which Alexander gave testimony against the defendant, the father was initially found guilty but the sentence was reversed and the defendant exonerated. Christie referenced yet another case in which the court deemed that Alexander allegedly acted in an inappropriate manner and in a short while on Friday the infallibility of this expert was being diminished. (all public information) I wish that this citation of questionable testimonies would make more cautious, the hundreds of child protection workers, pediatricians, police agencies and prosecution lawyers, who have confidence in and continue to rely on Alexander’s opinion about one theoretical diagnosis. Alexander is a Director for the National Center for Shaken Baby which occupies a this Utah office complex.
For Alexander, every child exhibiting the triad* of symptoms is a shaken baby. Dr. Alexander has never testified for the defense in a case and his CV indicates that he trains pediatricians, RCMP, judges, prosecutors and social workers to convict shaken baby perpetrators. He does not train defense lawyers. (*see tomorrow's blog post for the triad details)

With specific reference to the Bayne case, here is what we learned on Friday. Dr. Alexander admitted that he had seen the film work for Bethany’s injuries only the day before he took the stand yet he had written his report on the case a significant amount of time earlier. Dr. Alexander’s report was one page and a few lines in length. Christie ascertained that the cited sources for Alexander's decision was information from Dr. Colboune at BC Children's Hospital, a history of the case provided to him by the prosecution and some of the Bayne's experts' reports. There was no indication in the witness'report that he had seen or read the hospital reports from Matsqui, Chilliwack and Fraser Canyon Hospitals where Bethany was also examined in the days prior to admission at Vancouver Children’s Hospital. Under Christie's questioning, Alexander acknowledged that he had not read Bethany’s birth records where the severe prematurity factor should have been considered for a prudent rather than default assessment of cause for the symptoms observed. He also did not read all of the ten reports by other experts who, like him had examined Bethany’s medical data but rendered opinions that pointed to other causes and discounted shaken baby syndrome. He admitted upon questioning that he came to this moment of testimony, not knowing that the accidental fall of one child upon Bethany had been witnessed, or how heavy the falling child was or the speed at which the falling boy impacted the infant girl or the type of floor she was lying on, or what kind of physical reaction Bethany had at the time of the accident or that during the three weeks following the accident she had fits of vomiting, and therefore Christie submitted to court that Alexander had written his report based on incomplete medical history.

Christie's submission was noteworthy because in spite of the absence of information and preparedness, Alexander was claiming to be an expert who could render an opinion in this case that should help to prove that Bethany was a shaken baby and that Paul and Zabeth are abusers and that they do not deserve to have children in their home.

Christie introduced to court a damaging video as the last exhibit of the day. In this video Alexander is giving testimony in court in another shaken baby case while holding a doll in his hands to demonstrate the effect that shaking a baby would actually have. In this case the neck collapsed and the doll’s head fell off. Noticeably uncomfortable he fumbled with the doll’s head to reattach it to the body. This exhibit displayed the content and delivery of testimony which Alexander customarily provides for the prosecution at the expense of grieving and suffering families.

The payment that MCFD approved for Alexander's testimony, his flight and his accommodation was covered by all of us in British Columbia. At a great disadvantage are parents like the Baynes who are typically without the resources to bring medical professionals who would like to help. But wait for Tuesday's report of Monday's scheduled witness for the Baynes.