Commonwealth v. Epps, 474 Mass. 743

Background

Defendant (Epps) convicted of assault and battery on a child causing substantial bodily injury based on medical testimony diagnosing traumatic brain injury with the ‘‘triad’’ (subdural hematoma, retinal hemorrhages, brain swelling). Trial occurred in July 2007.
Defendant consistently told police the child fell down wooden stairs and later off a 30-inch kitchen stool earlier the same morning; those short falls were corroborated by witnesses and the child’s visible bump.
Commonwealth’s child abuse pediatrician (Dr. Wilson) testified the injuries were consistent with shaken baby syndrome and could not have been caused by the short falls; defense presented no medical expert at trial.
Postconviction motion (Mass. R. Crim. P. 30(b)) claimed ineffective assistance for counsel’s failure to retain an expert to support an accidental-short-fall theory and also invoked newly discovered scientific evidence questioning shaken baby syndrome. A motion hearing was held; the trial judge and the Appeals Court denied relief.
Supreme Judicial Court reversed: held that, under the unique facts (strong, corroborated short-fall evidence and evolving medical literature supporting short-fall causation), the absence of defense expert testimony deprived defendant of a substantial available defense and created a substantial risk of a miscarriage of justice; conviction vacated and case remanded for a new trial.

Issues

Issue	Commonwealth's Argument	Epps's Argument	Held
1) Was counsel ineffective for not retaining an expert challenging shaken baby syndrome?	Counsel made a strategic, reasonable choice not to call an expert; cross-examination of Commonwealth expert sufficed.	Counsel failed to investigate adequately and did not seek available credible experts who could have supported an accident theory.	Court: In these unusual circumstances, counsel’s limited investigation (no further expert search) deprived defendant of an available, substantial defense. New trial required.
2) Does newly discovered scientific research warrant a new trial?	Post-trial studies broaden debate but do not by themselves overturn verdict absent prior expert presentation.	Newer peer-reviewed studies and evolving AAP guidance bolster the defense theory and would have aided a credible expert.	Court: While post-trial literature alone might not suffice, its existence combined with counsel’s failure to secure an expert supports relief here.
3) Was there prejudice (substantial risk of miscarriage of justice)?	Jury heard the Commonwealth expert excluding short-fall causation; verdict was reasonable on that record.	Absence of any defense expert left jurors without a competent medical challenge; a credible expert could have created reasonable doubt.	Court: There is a serious doubt the verdict would stand had a credible expert testified; prejudice established; new trial ordered.
4) Standard for strategic decisions made before full investigation	Strategic choices are reasonable if based on adequate investigation and professional judgment.	Where a defense hinges on expert science, counsel must diligently seek credible experts before forgoing that defense.	Court: Strategic forgoing of an expert without reasonable effort to locate one was manifestly unreasonable under these facts.

Key Cases Cited

Commonwealth v. Millien, 474 Mass. 417 (Mass. 2016) (addresses scientific controversy over shaken baby syndrome and standards for new trial)
Commonwealth v. Saferian, 366 Mass. 89 (Mass. 1974) (standard for ineffective assistance: prejudice and serious incompetency)
Commonwealth v. LaBrie, 473 Mass. 754 (Mass. 2016) (review of strategic-decision reasonableness when made after investigation)
Commonwealth v. Kolenovic, 471 Mass. 664 (Mass. 2015) (scope of counsel’s investigation and manifestly unreasonable test)
Commonwealth v. Holliday, 450 Mass. 794 (Mass. 2008) (no duty to pursue nonviable theoretical defenses)
Commonwealth v. Candelario, 446 Mass. 847 (Mass. 2006) (adequacy of defense investigation)
Commonwealth v. Haggerty, 400 Mass. 437 (Mass. 1987) (duty to investigate potentially sole defense)
Commonwealth v. Cowels, 470 Mass. 607 (Mass. 2015) (newly discovered evidence standard: probability it would affect jury deliberations)
Commonwealth v. Grace, 397 Mass. 303 (Mass. 1986) (newly discovered evidence test)
Commonwealth v. Shuman, 445 Mass. 268 (Mass. 2005) (limits on relief from broadened scientific literature)
Commonwealth v. LeFave, 430 Mass. 169 (Mass. 1999) (new scientific evidence not always sufficient for new trial)
Commonwealth v. Brescia, 471 Mass. 381 (Mass. 2015) (if justice may not have been done, finality yields)
People v. Ackley, 497 Mich. 381 (Mich. 2015) (noting controversy over shaken baby/abusive head trauma diagnoses)
State v. Edmunds, 308 Wis. 2d 374 (Wis. 2008) (recognizing medical debate on shaking and lucid intervals)
In re Fero, 192 Wash. App. 138 (Wash. Ct. App. 2016) (court recognizing that short falls can cause findings associated with abusive head trauma)
Cavazos v. Smith, 132 S. Ct. 2 (U.S. 2011) (discussing deference in forensic medical disputes)