SPOTLIGHT ON SHAKEN-BABY SYNDROME
By Alison Flowers
Medill Innocence Project
Published: Aug. 23, 2012
Updated: Aug. 27, 2012
The Illinois Attorney General is fighting an attempt by Northwestern University’s Medill Innocence Project to gain access to medical records for an ongoing student investigation of an infant’s death nearly a decade ago in Will County, Ill.
Northwestern, on behalf of the Medill Innocence Project, submitted a motion Wednesday in U.S. District Court in Chicago to obtain records, including MRI and CT scans—detailed medical images of the 3 1/2-month-old infant who was allegedly injured and stopped breathing while under the supervision of a daycare worker who was later convicted of first-degree murder. The daycare worker, Jennifer Del Prete, was sentenced to 20 years in prison in 2005 after a Will County judge found her guilty of allegedly shaking Isabella Zielinski in 2002 in Romeoville, Ill., about 30 miles southwest of Chicago. The infant died nearly a year later in what is considered a shaken-baby syndrome case.
Medill undergraduate students began looking into the case in March as part of an investigative journalism class supported by the Medill Innocence Project, an organization that probes potentially wrongful murder convictions.
Over several months, students tracked down and interviewed people connected to the case and pulled court, police and other public records. They also interviewed several medical experts. Students, however, have not been able to obtain medical records. When the infant stopped breathing, the only potential eyewitnesses at the daycare were children five years old and younger, according to police reports. And in light of medical advances over the past decade, the scans of the infant’s brain may shed light on the cause of her death, said Northwestern Professor Alec Klein, director of the Medill Innocence Project.
In May, the Medill Innocence Project wrote to federal Judge Matthew F. Kennelly. “If and when the materials become a part of the public record, you will of course have access to them,” Kennelly responded in an email. “But at this time, they are not a part of the public record, and I do not have them myself.”
Del Prete’s Chicago attorneys, Jodi Garvey and Pat Blegen, who obtained the medical records by subpoena, declined to release them unless the judge formally permitted it.
Within hours of the Medill Innocence Project’s federal filing, the Illinois Attorney General responded by submitting motion requesting a protective order to keep the medical records confidential.
“Essentially we don’t feel at liberty to disclose private medical records,” said Ann Spillane, chief of staff for Illinois Attorney General Lisa Madigan in an interview for this article. “At this moment, they’ve never been in a court file, and it’s not clear that they will be in a court file at any point. So we feel we need to be very cautious about medical privacy and ask the courts to make a decision on this.”
The Health Insurance Portability and Accountability Act (HIPAA) of 1996 makes it illegal for health care providers and insurance companies to release medical records. Eric S. Mattson, the lawyer for Northwestern, sought to explain to prosecutors that HIPAA would not prevent Del Prete’s lawyers from releasing the records.
“One of the fundamental principles of our system of government is that judicial proceedings must be open to the public,” Mattson, a partner at Sidley Austin, said in Northwestern’s petition.
“It is the Medill Innocence Project’s mission to report on matters such as this case,” Mattson wrote. “Access to discovery materials is critical to the Project’s ability to conduct this reporting.”
Spillane said Madigan’s office plans to file written responses to contest the Medill Innocence Project’s petition to intervene in the case and motion for access to the records. When asked why no protective order had been filed in Del Prete’s federal appeal, which was submitted more than two years ago, Spillane said the Attorney General’s office was in no rush to file it and that it typically does not see such medical records in federal appeals; Del Prete filed her federal habeas corpus petition in August 2010, challenging the legality of her imprisonment.
Del Prete’s attorneys introduced scientific and medical research surrounding shaken-baby syndrome as evidence in the habeas petition. Since Del Prete’s conviction, many experts have questioned whether the cause of an infant’s injuries or death can be solely identified by what is known as the triad of shaken-baby syndrome: bleeding behind the eyes, brain bleeding and brain swelling.
According to court records, Isabella displayed retinal bleeding and brain bleeding after she stopped breathing under the care of Del Prete, who maintains she is innocent. The infant did not show any outward signs of abuse, according to hospital records. Del Prete’s lawyers point to biomechanical research in recent years that shows there likely would have been such injuries, such as bruising or damage to the neck. The lawyers also highlight research explaining that an infant’s pre-existing medical condition could be responsible for the triad seen in shaken-baby syndrome cases.
Isabella’s father, Richard, declined to comment for this article.
Kennelly, the judge, is scheduled to consider the motions by the Medill Innocence Project and the Attorney General’s office Tuesday at 9:30 a.m. in federal court in Chicago. Del Prete awaits a hearing set for Dec. 17 on her federal appeal.