COMMONWEALTH OF MASSACHUSETTS ESSEX, MIDDLESEX SUPREME JUDICIAL COURT NOS. SJC-11921, 11928 COMMONWEALTH V. DERICK EPPS AND OSWELT MILLIEN, APPELLANTS ______________________________________ APPEAL FROM JUDGMENTS OF THE ESSEX AND MIDDLESEX SUPERIOR COURTS ______________________________________ BRIEF AND APPENDIX OF CPCS, ACLUM, AND MACDL AS AMICI CURIAE ______________________________________ For ACLUM For CPCS Matthew R. Segal Dennis Shedd BBO #654489 BBO #555475 ACLU Foundation of MA 114 Waltham Street, Suite 14 211 Congress Street Lexington, MA 02421 Boston, MA 02110 (781) 274-7709 (617) 482-3170
[email protected] [email protected] For MACDL Chauncey B. Wood BBO #600354 Wood & Nathanson, LLP 227 Lewis Wharf Boston, MA 02110 (617) 248-1806
[email protected] TABLE OF CONTENTS Table of Authorities . iii Issues Presented . 1 Statements of Interest of the Amici Curiae . 1 Summary of the Argument . 3 Argument . 5 I. The Scientific Understanding of the Causes of Infant Head Injury Has Evolved Over the Last 45 Years. 5 A. The Origins of the Shaken Baby Syndrome Theory . 5 B. Challenges to the Shaken Baby Syndrome Theory . 10 C. Reacting to the Challenges . 20 D. Recent Survey Articles in Law Journals Have Brought These Issues to Wider Attention in the Legal Community. 24 II. The Opinions of the Experts in These Cases Have Evolved and Been Challenged Over the Years. 24 A. The Expert Evidence in These Cases . 24 B. In the Last Decade There Have Been Cases in Which the Children’s Hospital Experts’ Opinions Have Been Deemed Insufficient to Prove That Injuries Were Caused by Shaking. 31 III. Cases Alleging Shaken Baby Syndrome or Abusive Head Trauma May Give Rise to Well- Founded Claims of Ineffective Assistance of Counsel or Newly Discovered Evidence.