The Massachusetts Supreme Judicial Court today ruled that a defendant received ineffective assistance of counsel when his attorney did not hire a medical expert to rebut the Commonwealth’s allegation that he had injured his daughter by violently shaking her. The name of the case is Commonwealth v. Millien.
The defendant’s girlfriend gave birth to twin girls in March of 2009. By all accounts, the defendant was a loving father although he was inexperienced in caring for infants. In October of 2009, when the twins were around seven months old, the defendant was home alone with them. According to the defendant, he was sitting on the couch with one of the twins. When the defendant turned around to get a bottle, the baby fell off the couch onto the hardwood floor. She immediately threw up and then became unconscious. The defendant’s neighbor testified at the trial that she did not hear any banging or other noise around the time that the baby was injured. The baby was transported to Winchester Hospital and the hospital staff diagnosed her with a fractured skull, a subdural hematoma, and brain swelling. The baby’s injuries were serious enough to warrant her transfer to Children’s Hospital, where she was immediately brought into surgery. A pediatric neurosurgeon located clotted blood (which suggested the injury had happened shortly before the baby arrived at the hospital) and extensive swelling of the brain, along with a torn blood vessel.
A Woburn police officer interviewed the defendant about the events that led to the baby’s hospitalization. The defendant’s story to the police was consistent with what he had told the hospital staff. When asked, the defendant denied he had shaken the baby. During a subsequent interview with an investigator for the Department of Children and Families, the defendant said the baby’s head had hit the floor when she fell. A pediatric ophthalmologist examined the baby and found extensive hemorrhages in different areas of her eyes that suggested to the doctor that the baby could have been violently shaken. Dr. Alice Newton, who had had a disastrous recent history in the court system, testified on behalf of the Commonwealth that the baby had injuries that were consistent with having been shaken. Dr. Newton was permitted to offer speculative and inflammatory testimony that caregivers sometimes shake crying babies out of frustration and it is common for caregivers to then throw the babies on the floor. The defendant did not call a medical expert to testify at trial. He was convicted of assault and battery on a child causing substantial bodily injury.
Following his conviction, the defendant filed a motion for a new trial, alleging his attorney had been ineffective in failing to retain a medical expert to testify on his behalf. At the hearing for his motion for a new trial, a doctor hired by the defendant testified that there are questions whether shaken baby syndrome is a valid medical diagnosis at all. The doctor said shaken baby syndrome is a hypothesis that is not plausible and has never been proven. The doctor also said the baby’s head injury in this case could have been caused by her falling onto the floor from the couch. The superior court judge hearing the motion for a new trial concluded that the defendant’s trial attorney was ineffective for failing to hire a medical expert. However, because of the strength of the Commonwealth’s case, the judge ruled it would not have made a difference if the defendant’s attorney had hired his own medical expert. Therefore, the defendant’s motion for a new trial was denied.
The Supreme Judicial Court reversed. The Court agreed with the superior court judge that the defendant’s attorney had been ineffective. However, the SJC also found that the defendant had been prejudiced by his lawyer’s ineffectiveness. The Court said a defense medical expert could have testified about the methodological problems of shaken baby syndrome and could have assisted the defense attorney in cross-examining the Commonwealth’s expert witnesses.
The Court pointed out that the state supreme courts of Michigan and Utah have made similar rulings related to a defendant’s right to have a medical expert in shaken baby cases. While not expressing an opinion about the merits of shaken baby syndrome itself, the SJC recognized there is an ongoing “vigorous debate” on the topic and the defendant was entitled to the assistance of a medical expert. The case was remanded to the superior court for a new trial.