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Amicus Brief 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. 34 A. Trial Counsel May Render Ineffective Assistance by Failing to Consult With Experts in the Field. 34 B. Scientific Evidence May Be Deemed Newly Discovered Evidence Warranting a New Trial Where There Have Been Post- Trial Changes in Scientific Understanding or to the Admissibility of the Evidence in Court. 45 Conclusion . 49 Appendix . 52 ii TABLE OF AUTHORITIES CASES Bridgeman v. District Attorney for the Suffolk Dist., 471 Mass. 465 (2015) . 3 Brown v State, 152 So. 3d 1146 (Miss. 2014) . 44 Bunch v. State, 964 N.E.2d 274 (Ind. App., 2012), rev. denied 999 N.E.2d 416 (Ind. 2013) . 46 Commonwealth v. Avellar, 416 Mass. 409 (1993) . 10 Commonwealth v. Azar, 435 Mass. 675 (2002) . 38-39 Commonwealth v. Charles, 466 Mass. 63 (2013) . 3 Commonwealth v. Cowels, 470 Mass. 607 (2015) . 46,48 Commonwealth v. Grace, 397 Mass. 303 (1986) . 45-46 Commonwealth v. Haggerty, 400 Mass. 437 (1987) . 39-40 Commonwealth v. Hampton, 88 Mass. App. Ct. 162 (2015) . 35 Commonwealth v. Holliday, 450 Mass. 794 (2008), cert. denied sub nom. Mooltrey v. Massachusetts, 555 U.S. 947 (2008) . 36 Commonwealth v. Lang, 473 Mass. 1 (2015) . 35 Commonwealth v. Marinho, 464 Mass. 115 (2013) . 36 Commonwealth v. Meggs, 30 Mass. App. Ct. 111 (1991) . 46,48 Commonwealth v. Murphy, 448 Mass. 452 (2007) . 44 Commonwealth v. Power, 76 Mass. App. Ct. 398 (2010), rev. denied 456 Mass. 1105 (2010) . 32 Commonwealth v. Rainwater, 425 Mass. 540 (1997), Lcert. denied, 522 U.S. 1095 (1998) . 45 iii Commonwealth v. Roberio, 428 Mass. 278 (1998) . 35 Commonwealth v. Saferian, 366 Mass. 89 (1974) . 35 Commonwealth v. Scott, 467 Mass. 336 (2014) . 3 Commonwealth v. Sullivan, 469 Mass. 340 (2014) . 46 Commonwealth v. Woodward, 427 Mass. 659 (1998) . 38 Council v. State, 98 So.3d 115 (Fla. App. 2012) 43-44 DelPrete v. Thompson, 10 F.Supp.3d 907 (N.D. Ill. 2014) . 41-42 Ex Parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005) . 40-1 Ex parte Henderson, 384 S.W.3d 833 (Tex. Crim. App. 2012) . 47-49 Hinton v. Alabama, 134 S.Ct. 1081 (2014) . 37-38 People v. Ackley, 497 Mich. 381 (2015) . 42-43 State v. Edmunds, 746 N.W.2d 590 (Wis. App. 2008), rev. denied 308 Wis. 2d 612 (2008) . 46-48 State v. Hales, 152 P.3d 321 (Utah 2007) . 41 State v. Lane, 39 N.C.App. 33 (1978) . 9 State v. Mallar, 127 N.H. 816 (1986) . 9 State v. Schneider, 1984 WL 3719 (Ohio App. 1984) . 9 Strickland v. Washington, 466 U.S. 668 (1984) . 35-36 Wiggins v. Smith, 539 U.S. 510 (2003) . 36 CONSTITUTIONAL PROVISIONS Sixth Amendment . 34,44 Fourteenth Amendment . 44 iv Article 12 . 35,44,45 OTHER AUTHORITIES ABA Criminal Justice Standards for the Defense Function, Standard 4-4.1 (a,c,d) (4th ed. 2015) . 36 Arbogast et al., Initial Neurologic Presentation in Young Children Sustaining Inflicted and Unintentional Fatal Head Injuries, 116 PEDIATRICS 180 (2005) . 20 Barnes & Krasnokutsky, Imaging of the Central Nervous System in Suspected or Alleged Nonaccidental Injury, Including the Mimics, 18 TOPICS IN MAGNETIC RESONANCE IMAGING 53 (2007) . 19 Caffey, On the Theory and Practice of Shaking Infants, 124 AM. J. OF DISEASES OF CHILDREN 161 (1972) . 7 Caffey, The Whiplash Shaken Infant Syndrome: Manual Shaking by the Extremities with Whiplash- Induced Intracranial and Intraocular Bleedings, Linked with Residual Permanent Brain Damage and Mental Retardation, 54 PEDIATRICS 396 (1974) . 7 Case et al., Position Paper on Fatal Abusive Head Injuries in Infants and Young Children, 22 AM. J. FORENSIC MED. AND PATHOLOGY 112 (2001) . 9 Chadwick et al., Deaths from Falls in Children: How Far is Fatal?, 31 J. TRAUMA 1353 (1991) . 11 Chadwick et al., Annual Risk of Death Resulting From Short Falls Among Young Children: Less Than 1 in 1 Million, 121 PEDIATRICS 1213 (2008) . 31 Christian et al., Retinal Hemorrhages Caused by Accidental Household Trauma, 135 J. PEDIATRICS 125 (1999) . 17 Christian, et al., Abusive Head Trauma in Infants and Children, 123 PEDIATRICS 1409 (2009) . 21 v Committee on Child Abuse and Neglect, Am. Acad. of Pediatrics, Shaken Baby Syndrome: Rotational Cranial Injuries - Technical Report, 108 PEDIATRICS 206 (2001) . 9,20 CPCS Performance Standards Governing Representation of Indigents in Criminal Cases, Standards IV(A),(G)(8) . 36-37 Donohoe, Evidence-Based Medicine and Shaken Baby Syndrome Part I: Literature Review, 1966-1998, 24 AM. J. FORENSIC MED. PATHOLOGY 239 (2003) . 12-13 Duhaime et al., The Shaken Baby Syndrome: A Clinical, Pathological, and Biomechanical Study, 66 J. NEUROSURGERY 409 (1987) . 14 Emerson et al., Ocular Autopsy and Histopathologic Features of Child Abuse, 114 OPHTHALMOLOGY 1384 (2007) . 17 Findley et al., Shaken Baby Syndrome, Abusive Head Trauma and Actual Innocence: Getting It Right, 12 HOUSTON J. HEALTH LAW & POLICY 209 (2012) . 24 Geddes et al., Neuropathology of Inflicted Head Injury in Children, Part I. Patterns of Brain Damage, 124 BRAIN 1290 (2001) . 15 Geddes et al., Neuropathology of Inflicted Head Injury in Children, II. Microscopic Brain Injury in Infants, 124 BRAIN 1299 (2001) . 19 Gilliland, Interval Duration Between Injury and Severe Symptoms in Nonaccidental Head Trauma in Infants and Young Children, 43 J. FORENSIC SCI. 723 (1998) . 11,20 Goetting & Sowa, Retinal Hemorrhage After Cardiopulmonary Resuscitation in Children, 85 PEDIATRICS 585 (1990) . 18 Guthkelch, Infantile Subdural Haematoma and its Relationship to Whiplash Injuries, 2 BRIT. MED. J. 430 (1971) . 6-7 vi Guthkelch, Problems of Infant Retino-Dural Hemorrhage With Minimal External Injury, 12 HOUSTON J. HEALTH L. & POLICY 201 (2012) . 22-24 Hall et al., The Mortality of Childhood Falls, 29 J. TRAUMA 1273 (1989) . 16 Hymel et al., Intracranial Hemorrhage and Rebleeding in Suspected Victims of Abusive Head Trauma: Addressing the Forensic Controversies, 7 CHILD MALTREATMENT 329 (2002) . 18 Ibrahim et al., The Response of Toddler and Infant Heads During Vigorous Shaking, 22 J. NEUROTRAUMA 1207 (2005) . 15 Imwinkelried, Shaken Baby Syndrome: A Genuine Battle of the Scientific (and Non-Scientific) Experts, 46 CRIM. L. BULL. 156 (2010) . 24 Lantz et al., Perimacular Retinal Folds From Childhood Head Trauma, 328 BMJ 754 (2004) . 17 Lantz & Couture, Fatal Acute Intracranial Injury, Subdural Hematoma, and Retinal Hemorrhages Caused by Stairway Fall, 56 J. FORENSIC SCI. 1 (2011) . 16 Lopez et al., Severe Retinal Hemorrhages in Infants with Aggressive Fatal Streptococcus Pneumonia Meningitis, 14 J. AM. A. PEDIATRIC OPHTHALMOLOGY & STRABISMUS 97 (2010) . 18 Ludwig & Warman, Shaken Baby Syndrome: A Review of 20 Cases, 13 ANNALS OF EMERGENCY MED. 104 (1984) . 7,11 Plunkett, Fatal Pediatric Head Injuries Caused by Short-Distance Falls, 22 AM. J. FORENSIC MED. PATHOLOGY 1 (2001) . 16,20 Prange et al., Anthropomorphic simulations of falls, shakes, and inflicted impacts in infants, 99 J. NEUROSURGERY 143 (2003) . 14 vii Reiber, Fatal Falls in Childhood: How Far Must Children Fall to Sustain Fatal Head Injury? Report of Cases and Review of the Literature, 14 AM. J. FORENSIC MED. PATHOLOGY 201 (1993) . 16 Roth et al., Finite Element Analysis of Impact and Shaking Inflicted to a Child, 121 INT’L J. LEGAL MED. 223 (2007) . 15,30 Squier, Shaken Baby Syndrome: The Quest for Evidence, 50 DEVELOPMENTAL MED. & CHILD NEUROLOGY 10 (2008) . 19 Tuerkheimer, The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts, 87 WASH. U. L. REV. 1 (2009) . 24 viii Issues Presented In these cases the Court solicited amicus briefs addressing the following issues: Epps: “Whether the defendant, tried and convicted in 2007 on a charge of assault and battery on a child causing substantial bodily injury, see G. L. c. 265, § 13J (b), second par., is entitled to a new trial because of newly discovered evidence (i.e., changes since the time of trial in the state of the scientific research on shaken baby syndrome and abusive head trauma) or on the ground of ineffective assistance of counsel (i.e., counsel's alleged failure to use to the defendant's advantage the state of the research as it existed at the time of trial).” Millien: “Whether the defendant, tried and convicted in 2010 on charges of assault and battery on a child causing bodily injury and substantial bodily injury, see G.
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