In two stunning reports this week, the Boston Globe asserted the Middlesex District Attorney Marian Ryan’s Office failed to turn over exculpatory evidence in one shaken baby murder case and attempted to bully the medical examiner regarding a cause of death in a second shaken baby murder case. If these reports are true, the Attorney General should conduct an independent investigation to determine if any laws were broken.
Failure to Provide Exculpatory Evidence
In a recent high profile case, an Irish nanny was accused of shaking and killing an infant in her care in January of 2013. The medical examiner’s office concluded the child had died of shaken baby syndrome and the nanny, who asserted her innocence, was arrested and held without bail. According to the Globe, the District Attorney’s Office then consulted with Dr. Alex Levin, an eye specialist and nationally-known expert in shaken baby cases, and asked him whether the injuries to the baby’s eyes suggested abuse. Dr. Levin repeatedly told prosecutors that the baby’s injuries could have resulted from an immune disorder, not being shaken. This information was exculpatory and the law requires prosecutors to promptly produce exculpatory evidence to the defense attorney.
But the District Attorney’s Office didn’t even tell the defense team that Dr. Levin had been consulted. The defense attorneys learned about it in January of 2014 from a notation in the medical examiner’s file. The defense team then repeatedly requested Dr. Levin’s report, notes, and exculpatory evidence. Still, the District Attorney’s Office did not abide by its obligation to produce this exculpatory evidence. In fact, the evidence was not turned over by the District Attorney’s Office until January of 2015, after a superior court judge ordered its production. According to the Globe, prosecutors hid exculpatory evidence from the defense attorneys for more than 16 months, and for one year after it was specifically requested by the defense attorneys. It was such a breathtaking violation that the judge stated in court that the District Attorney’s Office had an obligation to produce the evidence earlier than it had.
For the entire 16 months that the District Attorney’s Office shirked its responsibility to provide exculpatory evidence, the nanny rotted away in prison. It wasn’t until the defense team produced opinions from nine independent specialists challenging the medical examiner’s finding that the baby was the victim of homicide that the nanny was released from prison. Finally, the District Attorney’s Office dismissed the case a few months later.
Failing to produce exculpatory evidence to defense attorneys is about the most serious type of misconduct a prosecutor can commit. In 2013, a former Texas district attorney who had convicted a man of murder after failing to provide exculpatory evidence to the defendant’s attorney was sentenced to jail. Former prosecutor Ken Anderson, who later became a judge, did not tell defense attorneys that a witness statement cast doubt on the defendant’s guilt and a police report documented the activities of a suspicious van that might have been involved in the murder. The defendant went to prison for 25 years before DNA evidence vindicated him. In addition to a (embarrassingly short) jail sentence of 10 days, Anderson was removed from the bench and lost his license to practice law.
Bullying the Medical Examiner
While the District Attorney’s Office was prosecuting the Irish nanny, it was also prosecuting a Malden man for shaking to death his six-month-old son. After his arrest, the defendant’s attorneys hired medical experts who discovered a genetic defect that made members of the baby’s family vulnerable to ruptures of arteries and veins. This discovery provided an alternative explanation for the baby’s death.
After learning of the baby’s possible medical condition, the medical examiner intended to change the cause of death from “homicide” to “could not be determined.” However, according to the medical examiner, the District Attorney’s Office “bullied” him to keep the original cause of death, which in his view would not have been honest. The medical examiner further accused the District Attorney’s office of being “unethical and unprofessional” in its involvement in his work. The District Attorney defended her office’s conduct and insisted it had a good, very professional relationship with the Medical Examiner’s Office. Two other sources, however, called the relationship between the two offices “toxic.”
Any pressure the District Attorney’s Office applied to the Medical Examiner’s Office was completely inappropriate. The Medical Examiner’s Office is charged with independently evaluating evidence and applying scientific principles to arrive at conclusions related to causes of death. The District Attorney’s Office should not be involved in that process at all.
The Middlesex District Attorney’s Office has been in a perpetual state of chaos since the Jared Remy tragedy. Remy was charged with beating up his girlfriend in August of 2013 and when the District Attorney’s Office (appropriately) did not ask for bail, he was released. He stabbed his girlfriend to death the following day and the District Attorney’s Office has never been the same. Prosecutors were instructed by upper-level supervisors to ask for bail in every single domestic case. A district court prosecutor was asked to resign when he failed to ask for bail on a case. Assistant district attorneys became concerned about being fired and as a result cared less about doing the right thing and more about covering their own tracks in court. The Globe wrote an in-depth article about the office’s dysfunction and the large numbers of prosecutors who were leaving the office. Since the article was published, many more prosecutors have left the Middlesex District Attorney’s Office, with several taking positions as prosecutors in other Massachusetts counties.
The conduct of the District Attorney’s Office related to the two shaken baby murder cases cannot be tolerated. Hiding exculpatory evidence and pressuring a medical examiner to make a finding that will be favorable to the Commonwealth’s theory of the case are unthinkable acts of misconduct. Some lawyers in the Middlesex District Attorney’s Office need to be reminded that prosecutors are bound by the same ethical rules as every other lawyer. Globe columnist Yvonne Abraham was correct when she wrote, “there is plenty here to be concerned about when it comes to Marian Ryan’s office. This is not how prosecutors should be bringing anybody to justice. The integrity of the entire system depends on fairness towards all defendants, regardless of guilt or innocence… maybe [Middlesex prosecutors] need a reminder: Sometimes, justice and winning aren’t the same thing.”
Shame on the Middlesex District Attorney’s Office.