COMMONWEALTH vs. DERICK EPPS.
Essex.
Supreme Judicial Court of Massachusetts
July 14, 2016.
474 Mass. 743 (2016)
Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, & HINES, JJ.
December 7, 2015. - July 14, 2016.
A Superior Court judge erred in denying the criminal defendant‘s motion for a new trial on an indictment charging assault and battery on a child causing substantial bodily injury, alleging that trial counsel was ineffective in deciding, after having conferred with one expert, not to confer with another expert who might challenge the diagnosis of “shaken baby” syndrome or who might challenge the opinion that the victim‘s symptoms could not possibly have been caused by the accidental falls described by the defendant, where, at the time of trial, there was substantial scientific and medical literature that recognized the possibility that accidental short falls can cause serious head injuries in young children of the type generally associated with shaken baby syndrome; where evidence that the victim had suffered a head injury from at least one short accidental fall was strong and corroborated; and where, having informed the judge at the beginning of trial that counsel did not plan to pursue a third-party culprit defense, counsel‘s failure to consult with another expert effectively meant that the defendant commenced trial without any substantial defense [756-763]; where, given the publication since the time of the defendant‘s trial of several additional studies that provide further support for the view that subdural hematomas, retinal hemorrhages, and other forms of significant head injury can result from accidental falls, as well as articles published in medical and scholarly journals questioning the diagnostic significance of the symptoms previously thought indicative of shaken baby syndrome and a change in a policy statement of the American Association of Pediatricians, the defendant was deprived of a defense from the confluence of counsel‘s failure to find such an expert and the evolving scientific research that demonstrates that a credible expert could offer important evidence in support of such a defense [763-768]; and where there was a substantial risk of a miscarriage of justice, in that the jury heard no scientific or medical expert challenging the majority views on shaken baby syndrome and short falls [768-770].
INDICTMENT found and returned in the Superior Court Department on November 17, 2004.
The case was tried before David A. Lowy, J., and a motion for a new trial, filed on October 17, 2011, was heard by him.
David Hirsch for the defendant.
David F. O‘Sullivan, Assistant District Attorney, for the Commonwealth.
The following submitted briefs for amici curiae:
Seth Miller, of Florida, Katherine H. Judson, of Wisconsin, Adam W. Deitch & Lindsay A. Olson, of New York, & Jeffrey S. Brown for The Innocence Network.
Heather Kirkwood, of Washington, & David E. Meier for David Ayoub & others.
Matthew R. Segal, Dennis Shedd, & Chauncey B. Wood for Committee for Public Counsel Services & others.
GANTS, C.J. The defendant was convicted by a Superior Court jury of assault and battery on a child causing substantial bodily injury, in violation of
In Commonwealth v. Millien, 474 Mass. 417, 418 (2016), we noted that “[t]here is a heated debate in the medical community as to whether a violent shaking of a baby alone can generate enough force to cause the triad of symptoms of traumatic brain injury, and as to whether these symptoms can sometimes be caused by a short accidental fall.” We conclude that, in the unusual circumstances of this case, the absence of expert testimony that the child‘s injuries might have been caused by her accidental falls deprived the defendant of an available, substantial ground of defense, and thereby created a substantial risk of a miscarriage of justice. We therefore reverse the judge‘s denial of the defendant‘s motion for a new trial, vacate the conviction, and
Background. 1. Evidence at trial. We summarize the evidence presented at trial in July, 2007. On October 9, 2004, Sara Comeau left for work early in the morning, leaving her two children, Veronica, age two, and Delilah, age four, in the care of the defendant, who was her live-in boy friend.2 The two girls were still asleep in their bedroom; the defendant was awake but still in bed.
The defendant told the police during two interviews on October 10 that, after Comeau left for work, Veronica woke up and he brought her into the bed with him. After one to two hours both woke up and the defendant sent Veronica downstairs by herself while he went to use the bathroom. He then heard Veronica cry and found her at the bottom of the stairs; based on what he saw and heard, it seemed that she had fallen down two or three wooden stairs. Veronica told him that she was all right. Veronica then sat on a stool in the kitchen eating cereal while the defendant played a video game. Veronica tried to get down from the stool by herself and fell.3 He found her on the floor, picked her up, and saw a small red mark on the left side of her forehead. She cried briefly but then said that she was okay. The defendant gave her juice and sat her on the couch, where she then started coughing and vomited. The defendant cleaned up the vomit and gave her a bath. Later, Veronica vomited again when she was upstairs.4
The defendant‘s friend, Jason Fletcher, arrived later that morning. When he arrived, the defendant told Fletcher that Veronica had fallen off the stool and Fletcher saw “a bump” above her left eye. The defendant and Fletcher played a football video game downstairs while the children played upstairs. At around noon, Comeau returned home on her lunch break and found the defend-
After Comeau returned to work, the defendant and Fletcher continued playing the video game downstairs while the girls were playing upstairs. The defendant told the police during his interviews that, shortly after Comeau left, while he and Fletcher were playing the video game, he heard a “boom” from upstairs. He initially thought that it was the children jumping around to music, but then Delilah ran to the top of the stairs and yelled to the defendant that Veronica had fallen. The defendant stated that he went upstairs and found Veronica lying on her back with “her eyes... almost going in the back of her head.” He began to give her cardiopulmonary resuscitation (CPR). She was limp and gurgling, and her stomach expanded and her arms flared up each time he breathed into her mouth. Her fingers were “like knots,” and her body stiffened as if she were having a seizure. He panicked and yelled for Fletcher. Fletcher came upstairs, and the defendant sent him to get Comeau from her work. The defendant told the police that, when his attempts at CPR failed, he tried to put a toothbrush in her mouth to create an airway.
At trial, Fletcher testified that, while he was playing the football video game downstairs with the defendant, Delilah yelled from upstairs that Veronica had fallen. The defendant went upstairs while Fletcher played four downs of the football video game.5 While the defendant was upstairs, Fletcher did not hear any “bangs,” “shouts,” or “noises.” Because the defendant had
Comeau drove home immediately when she learned about Veronica‘s condition and saw Veronica on the couch in the living room with the defendant leaning over her. Veronica had a large lump on her head, which Comeau testified was “red and purple/black” in color. The defendant was attempting to administer CPR, but Comeau screamed and told him to stop because Veronica‘s stomach was raised and “she had too much air in her.” Comeau asked the defendant what had happened, and he told her that Veronica had fallen down the stairs. Comeau telephoned 911, and the emergency medical technicians arrived. Fire fighter and emergency medical technician Robert Irvin said that Veronica was having difficulty breathing, her eyes were rolling back, and she was sweating profusely. According to Irvin, she had a “bang” on her head, a black eye, a small bang on her nose, and a red line across her chest, which, he said, looked “as if the child had leaned up against a chair or a table.”
A neighbor, Karen Grober, saw the fire trucks and ambulance and went outside to see what was going on. Grober testified that the defendant appeared “upset” and “worried.” Grober asked him what had happened, and he said that he did not know, that he heard a big thump from upstairs, and that when he went upstairs Veronica was on the floor, with her eyes rolling back.
Comeau followed Veronica to Lawrence General Hospital in a separate ambulance. When they arrived, Comeau saw a red mark under Veronica‘s ribs that had not been there when Comeau had dressed her at lunchtime. Comeau also saw red marks on the inside of both of her knees. Once the defendant arrived at the hospital, he told Comeau that Veronica had fallen down the stairs and had fallen off the breakfast stool, and that Delilah had yelled at the top of the stairs that Veronica had fallen a third time.
At Lawrence General Hospital, medical professionals intubated Veronica to assist her breathing and took several X-rays, including a head computerized tomography (CT) scan. She was even-
Dr. Celeste Wilson, a board-certified pediatrician and child abuse specialist, examined Veronica and found that her left pupil was fixed and dilated, and her right pupil was very sluggishly reactive to light. Although she was not an ophthalmologist, Dr. Wilson examined Veronica‘s eyes and found bleeding in the back of both eyes. An ophthalmologist subsequently examined Veronica and found bleeding, known as retinal hemorrhages, in both eyes, with approximately twelve hemorrhages on the right side and five hemorrhages on the left side. Dr. Wilson also found bruising over Veronica‘s right eye, as well as increased redness under the nostril and a bruise under her chin. Dr. Wilson observed additional areas of bruising or increased redness over Veronica‘s mid-chest, a bruise on her right upper back, a bruise on her left lower back, and bruising or increased redness on her right leg at the level of the knee on the outer side and on her left leg on the inner side.7 Veronica was given an electroencephalogram, a test that measures seizure activity in the brain, as well as a magnetic resonance imaging test and repeat head CT scans. The CT scans revealed that a portion of Veronica‘s brain had infarcted, the medical term for the loss of function in part of the brain, as a result of the nerve injury. Tests did not reveal any spinal cord damage; neck injury, aside from some swelling in the tissues around the neck; or skull fracture.
Dr. Wilson offered her opinion that these injuries were “consistent with non-accidental trauma.” Specifically, she testified that
Dr. Wilson testified that the normal activities of a toddler, even one who is clumsy, would not account for the type of injuries she described. She also testified that blood testing was performed and did not reveal any sign that Veronica was suffering from a blood disease or blood disorder. Finally, she opined to a reasonable degree of medical certainty that a fall of three feet could not cause Veronica‘s injuries and that a fall down multiple stairs would be “extremely unlikely” to cause them. She stated that, apart from shaking, the circumstances that might cause a child to sustain these types of injuries would be a high speed motor vehicle accident or a fall from a building or from a height of “more than [ten] feet, more... on the order of [seventy] feet.” On cross-examination, Dr. Wilson acknowledged that Dr. John Plunkett has conducted research indicating that the same types of symptoms as occur in shaken baby syndrome could occur from falls as low as three feet, but she stated that such findings are not widely accepted within the national community of pediatricians or recognized by the American Academy of Pediatrics. She also admitted on cross-examination that she could not say when Veronica‘s injuries were inflicted, and that it was possible for Veronica to have remained conscious for some period of time after their
Comeau testified that Veronica was a clumsy child and fell down often, that she bruised easily, and that she was being treated for a blood disorder.9 She said that Veronica and Delilah would jump off the couch and bed, and fight with each other. She gave Veronica a bicycle in June, 2004, and Veronica fell off and broke her arm several days later. The cast did not come off until the week before the incident. The defendant also described Veronica as “clumsy” and “accident prone” in his interview to the police, and described specific instances when Veronica had fallen, including three or four days prior when she ran into a door and sustained a bump on her head and a slight black eye. Grober similarly testified that she saw the girls outside every day and that Veronica was often falling down and “had a lot of accidents.”10
Comeau also testified that in August or September, 2004, the defendant told her he had slapped Veronica. Comeau saw a “big red welt and a handprint” between Veronica‘s legs and buttocks. During the police interviews the defendant admitted that he and Comeau “occasionally” gave the children a “slap on the butt” as a disciplinary measure. Nika Fontaine, Comeau‘s best friend and Delilah‘s godmother, testified that, when she approached Comeau‘s home on an unknown date, she saw through the screen door that the defendant put his hands on Veronica‘s arm and shook her while Veronica was on the ground standing.
On the evening of October 10, the defendant waived the Miranda rights and agreed to be interviewed by Trooper Robert LaBarge of the State police and Detective Carl Rogers of the Haverhill police department. He also agreed to be interviewed later that evening by Trooper Brandon Arakelian of the State police. Throughout the recorded interviews the defendant denied causing Veronica‘s injuries, even after his interrogators told him that the doctors at Children‘s Hospital had determined that Veronica‘s injuries were intentionally inflicted and that they could not have been caused by an accidental fall.11 The defendant also
As a result of the events on October 9, Veronica is paralyzed on the right side of her body and cannot walk. According to Comeau, Veronica‘s cognitive abilities are seriously limited and she “can‘t comprehend.”
2. Closing arguments. Defense counsel informed the judge on the first day of trial that he would not be pursuing a third-party culprit defense and during his opening statement asked the jury to consider “whether or not those injuries were caused by the blows of [the defendant] or... by some other non-intentional source.” But defense counsel in closing argument abandoned the argument that Veronica‘s injuries were accidental and invited the jury instead to consider whether Comeau “struck the blow that injured Veronica” when she came home from work on her lunch break. He noted that Comeau was “angry and upset” when she came home, and was alone upstairs with the children. In contrast, he argued that the defendant was in a good mood because he was winning in the football video game, and did not have the state of mind necessary to injure Veronica. As to the timing of the blow, defense counsel noted that Dr. Wilson had testified that “although the child suffered a very severe, traumatic shaking,... the child would not have been immediately comatose.”
The prosecutor in closing argument argued that the defendant violently shook Veronica during the time that he was upstairs and Fletcher was downstairs. She claimed that “two-year olds get banged up and bruised, but they don‘t break like this,” arguing that “even the clumsiest two year old, even one who‘s fallen off a [thirty-]inch stool or a couple of steps is not left with parts of her brain that have literally died-off.” Rather, she said, only a fall from seventy feet or an automobile crash where the child is ejected from the automobile could cause these injuries. She argued that, because there was no evidence of a fall or crash of this magnitude, the only possible cause of Veronica‘s injuries is
2. Motion for a new trial. The defendant, represented by new counsel, filed a postconviction motion for a new trial under
The motion judge, who was the trial judge, conducted a three-day evidentiary hearing that concluded on May 15, 2013. The defendant‘s trial counsel testified that he was aware prior to the start of the trial that the Commonwealth was intending to call Dr. Wilson as a witness, and that Dr. Wilson had diagnosed Veronica with shaken baby syndrome. Although he was aware that CT scans and other radiological images had been taken of Veronica‘s brain, he did not attempt to obtain copies of the scans. He conducted research into shaken baby syndrome and was aware of the controversies around it, and contacted two experts for assistance. The first expert originally agreed to be retained but then was unable to do so. Counsel then contacted Dr. Edward Sussman, a pathologist whose services he had used in prior cases and in whom he had confidence. Before counsel retained Dr. Sussman, he learned that Dr. Sussman believed in the validity of shaken baby syndrome as a diagnosis. Without viewing the CT and other radiological scans, Dr. Sussman advised that Veronica‘s injuries were compatible with impact to the left temporal lobe of the brain, and that the tearing of veins in her brain and bilateral retinal hemorrhaging were “some evidence of shaking.” He also advised that the multiple sites of Veronica‘s injuries were not compatible with a single fall. He said it was possible that her injuries were caused by three separate falls on the day of the incident, but unlikely because he did not believe that the falls were of a great enough distance. Thus, counsel chose not to call Dr. Sussman as a witness because counsel “did not believe that he would be of value.”
Trial counsel also contacted other attorneys who had worked on shaken baby cases to find out which experts they had used. At the time of the motion hearing, he could recall that he had spoken
Although trial counsel read literature critical of shaken baby syndrome, he did not contact any of the authors of that literature and did not seek to retain any other critics who could be helpful as expert witnesses. He testified that he did not choose to call an expert because he believed, based on his conversations with other attorneys, that doctors who questioned the validity of shaken baby syndrome were subject to attack by their peers, which would render them more vulnerable to cross-examination and might lead to a counter-expert being called by the Commonwealth. He said, however, that if he had found an expert from out-of-State who had solid credentials and could assist the defense, he would have “brought in” that witness to testify.
Regarding the strategy he ultimately did pursue, trial counsel stated that “[his] preference was to blame [Comeau] for the event” but “the problem that [he] had was that gap in time between [Comeau] leaving and the child being found.” He explained that he did not pursue a third-party culprit defense until the closing argument because of that concern, but once Dr. Wilson testified that Veronica could have sustained the blow and remained conscious after Comeau had left, he had the opportunity to pursue this defense.
Dr. Joseph Scheller, a pediatrician and child neurologist, testified regarding the scientific evidence that could have been presented at trial on behalf of the defense. First, Dr. Scheller described what he considered the questionable foundation of shaken baby syndrome as a valid and scientifically supported medical diagnosis. He explained that, although in theory a violent shaking of a baby can cause injury, there is no scientific evidence based on biomechanical models or animal studies, or from video cameras or witnesses, to support the claims made by proponents of shaken baby syndrome. He stated, “[W]e don‘t really have scientific proof that [shaken baby syndrome] happens like doctors say it happens and that [it] can cause the injuries that are credited to it or connected with it.” Dr. Scheller further testified that
Second, Dr. Scheller called into question Dr. Wilson‘s diagnosis of Veronica. Specifically, Dr. Scheller testified that the presence and extent of Veronica‘s retinal hemorrhages do not prove that she was violently shaken. He stated that while child abuse pediatricians and some ophthalmologists believe one can actually shake the eyeball and cause a retinal hemorrhage, it has never been done in a model and it has not occurred in people known to have been shaken. In contrast, he stated, “we absolutely do know that you can get retinal hemorrhages from too much pressure.” He opined, “[I]n a two-year-old who has this type of head injury, the retinal hemorrhage is absolutely zero evidence of any kind of shaking, even [to] those who believe in the shaking theory[;] because this child has so much pressure going on we have got to believe that it was the pressure that caused the retinal hemorrhage.” He stated that he could not give an opinion to a reasonable degree of medical certainty whether the amount and type of retinal hemorrhages Veronica suffered would be more consistent with abuse or falling down three stairs because “it could happen with either” and the probability is “fifty/fifty.”
Based on his review of Veronica‘s medical records, Dr. Scheller offered an opinion to a reasonable degree of medical certainty that Veronica suffered a subdural hemorrhage that “could have easily been from an accidental injury, just as it could
Finally, Dr. Scheller testified that shaken baby syndrome is the subject of heated debate and widespread disagreement among forensic pathologists, radiologists, pediatricians, ophthalmologists, and physicists and biomedical engineers. He stated that, although in 2006 every pediatrician and child abuse specialist he met believed strongly that shaken baby syndrome was a valid diagnosis, in the more recent past a “significant minority” has recognized that the science behind shaken baby syndrome is questionable and has instead adopted the term “abusive head trauma” or “abusive head injury” as a more general term for inflicted injury. He stated that ophthalmologists disagree on whether retinal hemorrhages prove shaken baby syndrome; although the majority agree that retinal hemorrhages provide some evidence in support of a shaken baby syndrome diagnosis, a minority of ophthalmologists believe that their presence does not point to a specific diagnosis. Dr. Scheller testified that, among radiologists, pathologists, and pediatricians, the majority supporting the shaken baby syndrome theory has shrunk. He stated that nothing has changed in his view or in the literature since 2007, and that he would have come to the same conclusions about the cause of Veronica‘s injuries in 2007. Dr. Scheller stated that the only change in the debate since 2007 has been in the increased acceptance of the views critical of shaken baby syndrome.
The judge denied the motion for a new trial, concluding that trial counsel‘s decision not to call an expert was a strategic judgment that was not manifestly unreasonable. The judge rea-
The defendant appealed, and the Appeals Court affirmed the denial of the defendant‘s motion for a new trial and the defendant‘s conviction in an unpublished memorandum and order issued pursuant to its rule 1:28. See Commonwealth v. Epps, 87 Mass. App. Ct. 1116 (2015). The Appeals Court held that trial counsel was not ineffective because his failure to call an expert to testify was a strategic decision, and that decision was not “manifestly unreasonable” because, as the motion judge reasoned, counsel made all of the essential points he needed to make on cross-examination, and “[a]ny further exploration into this area... would have undermined the defendant‘s ultimate defense that someone other than the defendant, i.e., the victim‘s mother, inflicted the victim‘s injuries.” The Appeals Court further reasoned that counsel‘s decision not to call an expert was not unreasonable because the research proffered by the defendant at the motion for a new trial “remains in the significant minority and subject to sizeable attack.” The court also agreed with the judge‘s ruling on the newly discovered evidence claim. We granted the defendant‘s motion for further appellate review.
Discussion. 1. Ineffective assistance of counsel. To prevail on a motion for a new trial claiming ineffective assistance of counsel, a defendant must show that there has been a “serious incompetency, inefficiency, or inattention of counsel - behavior of counsel falling measurably below that which might be expected from
Here, the defendant‘s trial counsel chose not to consult with any further experts after speaking with one expert who he knew did not question the validity of shaken baby syndrome and who, without having viewed the medical records, offered the opinion that Veronica‘s injuries could not possibly have been caused by the accidental falls described by the defendant. We consider whether, in the circumstances of this case, it was manifestly unreasonable for counsel to have decided to confer with no other expert who might challenge the diagnosis of shaken baby syndrome or who might challenge the opinion that Veronica‘s symptoms could not possibly have been caused by the accidental falls described by the defendant.
As became apparent at trial, defense counsel reasonably had two alternative lines of defense: he could argue that there was a reasonable doubt whether the defendant caused Veronica‘s injuries because of the possibility that her injuries were caused by the accidental falls she sustained earlier that morning - falling down the stairs, falling off the stool, or the cumulative effect of both falls; or that there was a reasonable doubt whether the defendant caused Veronica‘s injuries because of the possibility that Comeau intentionally inflicted the injury. The accidental defense had significant evidentiary support in that the defendant had consistently
- The defendant told Fletcher about it when he arrived at the home, and Fletcher saw a “bump” over Veronica‘s left eye;
- When Comeau came home during her lunch break, the “bump” was now “dime-sized,” and the defendant told her that Veronica had fallen from the stool; and
- Veronica herself told Comeau that she had hit her head.
Moreover, although the prosecution theory was that the defendant violently shook Veronica after Delilah had reported that Veronica had fallen, defense counsel reasonably could have argued that Veronica was already unconscious when Delilah called (as the defendant reported to police) because a four year old is unlikely to report to his or her caretaker an ordinary fall by a two year old sibling, especially when, as here, the sibling fell so often that she earned the nickname of “Tonka.” When Comeau returned to her home after Veronica had become unconscious, she reported that she saw a big “red and purple/black” lump on Veronica‘s forehead, which permitted the inference that the bump from the fall had grown into this discolored lump.
At the time of trial, there was substantial scientific and medical literature that recognized the possibility that accidental short falls can cause serious head injuries in young children of the type generally associated with shaken baby syndrome.15 Numerous
In contrast, the alternative defense that Comeau had shaken Veronica would have required a jury to accept as a reasonable possibility that the natural mother of Veronica, rather than the boy friend with no biological connection to Veronica, violently shook Veronica when she came home during her lunch break. Apart from the inherent difficulty in persuading a jury to accept such a possibility, this defense suffered from two additional challenges: Veronica appeared normal and continued to play after Comeau returned to work, and the defendant told the police that he did not believe Comeau had inflicted the injury.19 In light of these difficulties, it is not surprising that defense counsel told the judge on the first day of trial that he did not intend to offer a defense of third-party culprit,20 and that he invited the jury in opening statement to consider whether Veronica‘s injuries were accidental
Without an expert to testify to the possibility that Veronica‘s injuries might have been caused by her accidental falls, all that trial counsel was able to do to advance the theory of accident was to ask Dr. Wilson to acknowledge the existence of Dr. Plunkett‘s findings regarding short falls, which Dr. Wilson did and then noted that Dr. Plunkett‘s findings were not widely accepted within the national community of pediatricians and were not recognized by the American Academy of Pediatrics (AAP). It should have been entirely foreseeable that, when defense counsel invites a prosecution expert to acknowledge findings in support of a minority position in the field of science or medicine, the expert will diminish the significance of those findings by testifying that they are not credited by the majority of experts in the field. And without an expert to testify in support of the minority position, or vigorous cross-examination prepared with the assistance of such an expert, there is no reason to believe that a jury will be persuaded by a view rejected by the majority of experts in a learned field. Defense counsel apparently recognized the futility of an accident defense without the testimony or aid of such an expert, because, in closing argument, he effectively abandoned the accident defense entirely, and asked the jury simply to consider who “struck the blow.”21
Having informed the judge at the beginning of trial that he did not plan to pursue a third-party culprit defense, defense counsel‘s failure to consult with any expert other than Dr. Sussman effectively meant that the defendant commenced trial without any substantial defense, even though further investigation would have supported a potentially substantial defense of accident.22 Trial counsel testified that he would have retained an expert to testify if he could have found one with “solid credentials” who could assist the defense. But when asked if he made “any inquiries into
Whether counsel‘s representation in this case was ineffective, therefore, rests on whether, at the time of trial in July, 2007, there were credible experts available who challenged the majority views on short falls and shaken baby syndrome. The record, however, is sparse on this issue; the existence of scientific and medical studies would certainly provide the factual basis for an expert to offer a minority opinion on these subjects, but that does not mean that experts were readily available in 2007 who were prepared and willing to offer such opinions in a criminal case. Dr. Scheller testified that credible experts were available to testify in 2007, but we note that the judge did not find Dr. Scheller credible as an expert himself in part because of his assertions that ventured well beyond what was necessary to his opinion that the injuries suffered by Veronica reasonably could have been caused by her accidental falls.23 For reasons that will soon become clear, however, we need not determine whether it was manifestly unreasonable in 2007 for counsel to have failed to find a credible expert who shared the minority view in this scientific controversy.
2. Newly discovered evidence. We now consider whether there was newly discovered evidence in the form of new scientific or medical findings. Newly discovered evidence warrants a new trial where that evidence “would probably have been a real factor in
Since the defendant‘s trial, several additional studies have been published that provide further support for the view that subdural hematomas, retinal hemorrhages, and other forms of significant head injury can result from accidental short falls.24 More research has also been conducted that casts doubt on the view that shaking alone can cause serious head injury.25 And more articles have been published in medical and scholarly journals questioning the diagnostic significance of the symptoms previously thought indicative of shaken baby syndrome.26
This research appears to have influenced the position of the
If defense counsel had offered expert testimony at trial questioning the validity of the scientific foundation of the diagnosis of shaken baby syndrome, and discussing the possibility that accidental short falls can cause injuries generally associated with shaken baby syndrome, the studies published after July, 2007, and the changes in the AAP policy statement might have lent more credibility to that expert testimony, but this generally would not be enough alone to justify a new trial. See Commonwealth v. Shuman, 445 Mass. 268, 275-276 (2005) (where defendant offered expert testimony at trial, proffer of new scientific evidence that constitutes “mere[] broadening of the research... already present in legal and scientific circles” or “mere addition of further information to the preexisting debate” would not be “significant enough to create a substantial risk that the jury would have reached a different conclusion had the evidence been admitted at trial“); Commonwealth v. LeFave, 430 Mass. 169, 181
Therefore, we confront this dilemma: if the defendant were deprived of an available defense because counsel was ineffective, we would determine whether there was a substantial risk of a miscarriage of justice and, if there was, we would conclude that the interests of justice require a new trial. See Millien, 474 Mass. at 432 (“substantial risk of a miscarriage of justice” standard is same as prejudice standard under second prong of ineffective assistance of counsel test). But what do we do if we determine that the defendant was deprived of a substantial defense only because, if the trial were conducted today, it would be manifestly unreasonable for counsel to fail to find and retain a credible expert given the evolution of the scientific and medical re-
We conclude that our touchstone must be to do justice, and that requires us to order a new trial where there is a substantial risk of a miscarriage of justice because a defendant was deprived of a substantial defense, regardless of whether the source of the deprivation is counsel‘s performance alone, or the inability to make use of relevant new research findings alone, or the confluence of the two. See Commonwealth v. Brescia, 471 Mass. 381, 388 (2015) (“if it appears that justice may not have been done, the valuable finality of judicial proceedings must yield to our system‘s reluctance to countenance significant individual injustices“).
Therefore, we need not determine whether it was manifestly unreasonable in July, 2007, for trial counsel to have failed to make the additional effort needed to find an appropriate expert. It suffices that we conclude that the defendant was deprived of a defense from the confluence of counsel‘s failure to find such an expert and the evolving scientific research that demonstrates that a credible expert could offer important evidence in support of this
3. Prejudice. In evaluating whether there is a substantial risk of a miscarriage of justice arising from the deprivation of this defense, we conduct a prejudice analysis comparable to the analysis we conduct after finding that defense counsel was ineffective or that newly discovered evidence has emerged. See Millien, 474 Mass. at 432 (where it was manifestly unreasonable for counsel to fail to present defense, we determine whether “we have a serious doubt whether the jury verdict would have been the same had the defense been presented“); Grace, 397 Mass. at 305-306 (newly discovered evidence warrants new trial where that evidence “would probably have been a real factor in the jury‘s deliberations” and its absence at trial “casts real doubt on the justice of the conviction“). We have a serious doubt in this case whether the jury verdict would have been the same had the jury heard expert testimony regarding the possibility that short falls can cause severe head injuries in young children.
Here, the prosecution was able to persuade the jury that it had eliminated the alternative explanation of accidental short falls because the only medical expert who testified offered the opinion that injuries of the type and severity suffered by Veronica could not have been caused by the short falls described by the defendant, and the only evidence to the contrary was the brief reference to Dr. Plunkett‘s study on short falls, the findings of which the jury learned from Dr. Wilson were not widely accepted within the national community of pediatricians and had not been recognized by the AAP. If the jury had learned that injuries of the type and severity suffered by Veronica could have been caused by short falls of the type described by the defendant, they might have had reasonable doubt whether the defendant violently shook Veronica after he left Fletcher to go upstairs. A reasonable jury could have found that Veronica fell down the stairs and later fell off the kitchen stool, and that one (or the combination) of these falls caused the bump on her forehead that had grown to the size of a dime when Comeau came home on her lunch break and grew into a discolored lump by the time she returned home. Based on Dr.
Were an expert such as Dr. Scheller to testify at such a trial today, the expert could offer the opinion that it is possible for a child to suffer serious head injuries from an accidental short fall. See notes 15 and 24, supra; Millien, 474 Mass. at 435 n.16; In re Fero, 192 Wash. App. at 156-157. Once the expert‘s opinion is challenged on cross-examination, the expert on redirect examination could cite and explain the numerous studies published in peer-reviewed journals that support this proposition. Such an expert witness on redirect examination also could cite and explain the numerous studies challenging the view that shaking alone can produce injuries of the type and severity suffered by Veronica. See notes 16 and 25, supra; Millien, 474 Mass. at 433 n.15. See also Cavazos v. Smith, 132 S. Ct. 2, 10 (2011) (Ginsburg, J., dissenting), quoting Edmunds, 308 Wis. 2d at 385 (“[d]oubt has increased in the medical community ‘over whether infants can be fatally injured through shaking alone’ “). If such an expert were to cause the jury to doubt whether violent shaking alone could have caused Veronica‘s severe injuries, they may ask whether there is any evidence that Veronica was not only shaken, but perhaps slammed against the wall or thrown to the floor. But Fletcher heard nothing unusual while the defendant was upstairs, and Veronica did not suffer any skull fracture or neck injuries. And if such an expert were to cause the jury to question whether Veronica‘s injuries were caused by impact trauma rather than violent shaking, they might more carefully consider whether the impact trauma described by the defendant - Veronica‘s fall down the stairs and off the kitchen stool - could have caused her head injuries.
Such expert opinion testimony likely would be challenged on cross-examination or by a prosecution expert called in rebuttal, where the studies in peer-reviewed journals that support the prosecution theory of shaken baby syndrome could be cited and
Conclusion. We conclude that, in the circumstances of this case, there was a substantial risk of a miscarriage of justice, and we therefore reverse the denial of the defendant‘s motion for a new trial, vacate the conviction, and remand the case to the Superior Court for a new trial.
So ordered.