Despite an extraordinary effort by the Nashville, Tennessee, district attorney’s office to overturn a murder conviction won by the state’s prosecutors more than two decades ago, the state’s Court of Criminal Appeals upheld the conviction of Russell Mays on Friday. The court said there was insufficient evidence to prove Mays’ innocence, even though the original medical examiner in the case, whose testimony helped secure the 2004 conviction, recanted last year and concluded Mays’ son died of natural causes, not abuse.
Mays’ case was covered in detailed articles in ProPublica and the New York Times Magazine last year, and she was accused of shaking her 5-week-old son, Alex, who later died.
The court’s 2-1 decision came after an exhaustive year-long review by a special team within the Crown Prosecution Service known as the Conviction Review Unit. After consulting with experts in pathology, radiology, neonatology and ophthalmology, the unit concluded that Alex died from an undiagnosed medical condition and not from tremors.
Mays, now 60, was arrested in the spring of 1999 after Alex became unresponsive. He has been in prison ever since, serving a life sentence.
Mays was tried twice, and in both trials prosecutors presented evidence showing that Alex was a victim of shaken baby syndrome. Doctor Suzanne Stirling, who examined the case, told the jury that internal bleeding on Alex’s brain and around his eyes showed he had endured a violent act that left him shaking. “You would be appalled to see what this looks like,” she testified at Mays’ first trial. The shaking was so strong that “children who fell from the third or fourth floor onto the concrete would suffer similar brain injuries,” she added.
But in the years since Alex ended up in the emergency room, doctors and researchers have discovered that the symptoms once thought to be characteristic of shaken baby syndrome (swelling of the brain and bleeding around the brain and in the retina) are not necessarily signs of abuse. Although long considered conclusive evidence of tremors, it is now understood that there are other causes, including accidental falls, illness, infection, and congenital disorders.
In March 2024, the Conviction Review Unit, along with attorneys for Mays and his wife Kay, announced their findings during a two-day evidentiary hearing. Kaye was not home with her husband when her son became unresponsive in 1999, but she was still charged with aggravated assault. She filed an Alford petition for a lesser charge after being told that a criminal case could thwart her efforts to regain custody of her son, even though he did not immediately die. This allows the defendant to accept punishment while maintaining his or her innocence.
At the hearing, District Attorney Glenn Funk asked the court to overturn the conviction. “All medical experts use current science to confirm that Russell and Kay Mays are in fact innocent of the crimes for which they were convicted,” he said. “It is my duty as district attorney to ask the court to vacate these convictions,” Sonny Eaton, head of the office’s conviction review division, was even more blunt. “The state got this wrong,” she told Judge Steve Dozier.
Mr. Dozier has a long history with the case, having presided over Mays’ trial, appeal, and post-conviction proceedings. (He also signed Kay’s plea deal, sparing her any prison time.) Medical experts testified at a 2024 hearing that Alex’s symptoms were the result of an undiagnosed medical condition. But Dozier gave this new testimony as much weight as the original testimony from witnesses like Sterling, writing that it did not reflect a new scientific consensus but was merely “another bullet in the ‘war of the experts.'”
Friday’s ruling from the Court of Criminal Appeals upheld that decision, finding that the Mayes have “failed to establish whether their scientific evidence is truly ‘new’ or whether this evidence provides clear and convincing evidence that Mr. Mayes is in fact innocent.”
This opinion provides only a cursory consideration of the ramifications of this case. In September 2024, the first medical examiner who ruled Alex’s death a homicide said he was wrong. Before reaching this conclusion, Dr. Bruce Levy reviewed medical records provided by the Conviction Review Unit, many of which he did not recall seeing before. It included Kay’s obstetric records, which chronicled Alex’s premature birth until his death and provided important context about the health challenges Alex (officially known as Brian) faced before he stopped breathing.
“I retract my trial testimony that Brian Mays suffered from shaken baby syndrome,” Levy said in the affidavit. “If I were called to testify now, I would say with any degree of medical certainty that Brian Mays’ brain at the time of his death showed no signs of past trauma or abuse. Rather, the residual brain lesions identified at autopsy likely resulted from a natural disease process.” He went on to say that he would classify the child’s manner of death as “natural.”
Mr. Levy’s retraction appears to have been particularly important to one of the three judges on the Court of Criminal Appeals who heard oral arguments in the Mays case. In a separate opinion accompanying Friday’s ruling, Judge Tom Greenholtz spent 14 pages arguing that the reappraisal of Mr. Levy’s evidence needed serious consideration. “When the state’s own chief medical examiner retracts the very testimony that established the cause and manner of death, the effect is not only to raise new questions; if believed, it would call into question the basis of the trial and the reliability of post-conviction court findings that relied on the same testimony.”
Professor Greenholtz added: “Dr. Levy’s revised opinion is that no murder occurred; the child died of natural causes. This is more than a mere disagreement between experts on the interpretation of ambiguous findings. It represents a determination by the state’s own chief forensic pathologist that the factual preconditions for a murder prosecution did not exist.”
Mr. Mays can apply for leave to appeal to the Tennessee Supreme Court, but the court only grants review of a small number of cases.
The Court of Criminal Appeals’ decision is an outlier among recent appellate opinions in which shaken baby syndrome has come under intense scrutiny. Over the past 18 months, judges in Minnesota, Michigan, Texas, Georgia and New Jersey have sided with defendants challenging shaken baby convictions. In October, the Texas Court of Criminal Appeals granted a suspended sentence to Robert Roberson, who was charged in the death of his 2-year-old daughter. The stay was granted under the state’s junk science law, which allows courts to review convictions based on scientific evidence that is now considered unreliable or outdated.
The Mays case highlights a broader national reappraisal of shaken baby syndrome. There are currently 41 people convicted in connection with this diagnosis on the National Register of Exonerations.
“Russell Mays remains in prison for a crime he did not commit,” said Jason Gichner, executive director of the Tennessee Innocence Project and Mays’ lead attorney. “All of the medical experts who attended the recent post-conviction hearing, both the prosecution and the defense, agreed that this is not a case of abuse. Mr. Russell needs to come home, and until that day comes, we will not stop fighting.”
