- Associated Press - Thursday, July 14, 2016

BOSTON (AP) - A man convicted of severely injuring his girlfriend’s 2-year-old daughter by violently shaking her must get a new trial, the highest court in Massachusetts ruled Thursday, the second time in two months the court has cited heated debate in the medical community over the diagnosis of shaken baby syndrome.

In its latest ruling, the court found that there was a “substantial risk of a miscarriage of justice” in the trial of Derick Epps because his lawyer did not call an expert to try to challenge testimony from a prosecution expert who said the girl’s injuries were consistent with shaken baby syndrome. Epps told police the girl fell down the stairs and also fell off a kitchen stool and hit her head.

“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,” Chief Justice Ralph Gants wrote for the court in the unanimous 6-0 opinion.

The court cited its ruling last month in the case of Oswelt Millien, who was convicted in 2010 of violently shaking his infant daughter, who suffered head and neck injuries. In that case, the court also overturned the conviction, noting the ongoing debate over whether strong shaking alone can generate enough force to cause the symptoms of traumatic brain injury and whether the symptoms can sometimes be caused by a short accidental fall.

Epps was convicted of assault and battery for injuring the girl in 2004. She remains paralyzed on her right side, cannot walk and is blind in one eye, the court said in its ruling.

The SJC said at the time of the 2007 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.”

“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 injuries in young children,” the court wrote.

In the Millien case, the SJC noted that judges in Utah and Michigan have issued similar rulings in other cases in recent years.

“More and more, the courts around the country are looking at the evidence there is - looking at the scientific evidence - and determining there is enough doubt, so at the very least, the diagnosis must be challenged,” said David Hirsch, a lawyer who represented both Epps and Millien.

“The science has changed, and the courts have recognized this, here and elsewhere,” he said.

Essex District Attorney Jonathan Blodgett said he is considering whether to retry the case.

In a statement, he said it was the defense’s decision not to use an expert witness it had hired to critique the evidence of shaking.

“This decision amounts to an invasion of strategic prerogatives of defense counsel,” he said.

The statement also said the court apparently ignored evidence that the defendant was seen a prior occasion shaking the baby violently and had struck the child in the past.


Copyright © 2018 The Washington Times, LLC.

The Washington Times Comment Policy

The Washington Times welcomes your comments on Spot.im, our third-party provider. Please read our Comment Policy before commenting.

 

Click to Read More and View Comments

Click to Hide