Commonwealth v. Epps , 474 Mass. 743 ( 2016 )

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SJC-11921
COMMONWEALTH vs. DERICK EPPS.
Essex. December 7, 2015. - July 14, 2016.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, & Hines,
JJ.
Assault and Battery. Child Abuse. Constitutional Law,
Assistance of counsel. Due Process of Law, Assistance of
counsel. Evidence, Expert opinion. Practice, Criminal,
New trial, Assistance of counsel.
Indictment found and returned in the Superior Court
Department on November 17, 2004.
The case was tried before David A. Lowy, J., and a motion
for a new trial, filed on October 17, 2011, was heard by him.
After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.
David Hirsch for the defendant.
David F. O'Sullivan, Assistant District Attorney, for the
Commonwealth.
The following submitted briefs for amici curiae:
Seth Miller, of Florida, Katherine H. Judson, of Wisconsin,
Adam W. Deitch & Lindsay A. Olson, of New York, & Mark W. Batten
for The Innocence Network.
Heather Kirkwood, of Washington, & David E. Meier for David
Ayoub & others.
2
Matthew R. Segal, Dennis Shedd, & Chauncey B. Wood for
Committee for Public Counsel Services & others.
GANTS, C.J. The defendant was convicted by a Superior
Court jury of assault and battery on a child causing substantial
bodily injury, in violation of G. L. c. 265, § 13J (b). The
prosecution contended that the defendant violently shook the two
year old child in his care based on medical testimony that the
child was diagnosed with traumatic brain injury, and scans of
her brain that showed retinal hemorrhages, subdural hematoma,
and brain swelling, the three symptoms known as "the triad"
associated with shaken baby syndrome. The defendant, when
interviewed by the police, denied having injured the child and
reported that, hours before the child's grievous injuries became
manifest, she had fallen down the wooden stairs in her home and
had later fallen off a kitchen stool, leaving a bump on her
forehead. The Commonwealth's medical expert offered the opinion
that injuries of the type and severity suffered by the child
could not have been caused by the short falls described by the
defendant. The defendant called no expert to offer an opinion
to the contrary.
In Commonwealth v. Millien, 474 Mass. 417, 418 (2016), we
noted that "[t]here is a heated debate in the medical community
as to whether a violent shaking of a baby alone can generate
enough force to cause the triad of symptoms of traumatic brain
3
injury, and as to whether these symptoms can sometimes be caused
by a short accidental fall." 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. We therefore reverse the judge's denial
of the defendant's motion for a new trial, vacate the
conviction, and remand the case to the Superior Court for a new
trial.1
Background. 1. Evidence at trial. We summarize the
evidence presented at trial in July, 2007. On October 9, 2004,
Sara Comeau left for work early in the morning, leaving her two
children, Veronica, age two, and Delilah, age four, in the care
of the defendant, who was her live-in boy friend.2 The two girls
were still asleep in their bedroom; the defendant was awake but
still in bed.
The defendant told the police during two interviews on
October 10 that, after Comeau left for work, Veronica woke up
1
We acknowledge the amicus briefs submitted by The
Innocence Network and "concerned physicians and scientists," and
the amicus brief jointly submitted by the American Civil
Liberties Union of Massachusetts, the Committee for Public
Counsel Services, and the Massachusetts Association of Criminal
Defense Lawyers.
2
Sara Comeau worked as a certified nurse assistant at a
nearby nursing home.
4
and he brought her into the bed with him. After one to two
hours both woke up and the defendant sent Veronica downstairs by
herself while he went to use the bathroom. He then heard
Veronica cry and found her at the bottom of the stairs; based on
what he saw and heard, it seemed that she had fallen down two or
three wooden stairs. Veronica told him that she was all right.
Veronica then sat on a stool in the kitchen eating cereal while
the defendant played a video game. Veronica tried to get down
from the stool by herself and fell.3 He found her on the floor,
picked her up, and saw a small red mark on the left side of her
forehead. She cried briefly but then said that she was okay.
The defendant gave her juice and sat her on the couch, where she
then started coughing and vomited. The defendant cleaned up the
vomit and gave her a bath. Later, Veronica vomited again when
she was upstairs.4
The defendant's friend, Jason Fletcher, arrived later that
morning. When he arrived, the defendant told Fletcher that
Veronica had fallen off the stool and Fletcher saw "a bump"
3
Chemist Cailin Lally of the State police crime laboratory
measured the stool and determined that it was thirty inches
tall. Lally also performed an orthotolodine test, a presumptive
test for the presence of blood, on a stain found on the kitchen
floor near the stool, and the result came back positive.
4
Lally found a pair of children's jeans with chunky,
strong-smelling material in the hallway upstairs, and brown
chunky material with a "vomit-like" odor in the bathroom sink
upstairs.
5
above her left eye. The defendant and Fletcher played a
football video game downstairs while the children played
upstairs. At around noon, Comeau returned home on her lunch
break and found the defendant in the living room with Fletcher,
sitting on the couch and playing the football video game.
Veronica was wearing pull-up underpants and a T-shirt, which was
the same T-shirt Comeau had dressed her in when Comeau put her
to bed the night before. Comeau saw that Veronica had a red,
dime-sized mark on her forehead. Comeau asked the defendant
what had happened, and he told her that Veronica had fallen off
the stool while she was eating breakfast. She and the defendant
then got into an argument about neither child being fully
dressed. Before returning to work, Comeau went upstairs and
dressed Veronica in pants and a T-shirt. During this time,
Veronica said to her, "Mommy, I hit my head." According to
Comeau, Veronica was not acting unusual at this time.
After Comeau returned to work, the defendant and Fletcher
continued playing the video game downstairs while the girls were
playing upstairs. The defendant told the police during his
interviews that, shortly after Comeau left, while he and
Fletcher were playing the video game, he heard a "boom" from
upstairs. He initially thought that it was the children jumping
around to music, but then Delilah ran to the top of the stairs
and yelled to the defendant that Veronica had fallen. The
6
defendant stated that he went upstairs and found Veronica lying
on her back with "her eyes . . . almost going in the back of her
head." He began to give her cardiopulmonary resuscitation
(CPR). She was limp and gurgling, and her stomach expanded and
her arms flared up each time he breathed into her mouth. Her
fingers were "like knots," and her body stiffened as if she were
having a seizure. He panicked and yelled for Fletcher.
Fletcher came upstairs, and the defendant sent him to get Comeau
from her work. The defendant told the police that, when his
attempts at CPR failed, he tried to put a toothbrush in her
mouth to create an airway.
At trial, Fletcher testified that, while he was playing the
football video game downstairs with the defendant, Delilah
yelled from upstairs that Veronica had fallen. The defendant
went upstairs while Fletcher played four downs of the football
video game.5 While the defendant was upstairs, Fletcher did not
hear any "bangs," "shouts," or "noises." Because the defendant
had not returned, Fletcher went upstairs "to see what was going
on."6 He then saw Veronica lying unconscious on a mattress in
5
Jason Fletcher testified that the defendant was winning
the football video game when Delilah called for him.
6
There was a dispute at trial as to how much time elapsed
before Fletcher went upstairs after the defendant left; Fletcher
estimated that it was approximately two minutes. The defendant
told the police that he called for Fletcher after about thirty
seconds.
7
the girls' bedroom and the defendant giving her mouth-to-mouth
resuscitation. The defendant sent him to get Comeau, and he
drove to the nursing home where she worked.
Comeau drove home immediately when she learned about
Veronica's condition and saw Veronica on the couch in the living
room with the defendant leaning over her. Veronica had a large
lump on her head, which Comeau testified was "red and
purple/black" in color. The defendant was attempting to
administer CPR, but Comeau screamed and told him to stop because
Veronica's stomach was raised and "she had too much air in her."
Comeau asked the defendant what had happened, and he told her
that Veronica had fallen down the stairs. Comeau telephoned
911, and the emergency medical technicians arrived. Fire
fighter and emergency medical technician Robert Irvin said that
Veronica was having difficulty breathing, her eyes were rolling
back, and she was sweating profusely. According to Irvin, she
had a "bang" on her head, a black eye, a small bang on her nose,
and a red line across her chest, which, he said, looked "as if
the child had leaned up against a chair or a table."
A neighbor, Karen Grober, saw the fire trucks and ambulance
and went outside to see what was going on. Grober testified
that the defendant appeared "upset" and "worried." Grober asked
him what had happened, and he said that he did not know, that he
8
heard a big thump from upstairs, and that when he went upstairs
Veronica was on the floor, with her eyes rolling back.
Comeau followed Veronica to Lawrence General Hospital in a
separate ambulance. When they arrived, Comeau saw a red mark
under Veronica's ribs that had not been there when Comeau had
dressed her at lunchtime. Comeau also saw red marks on the
inside of both of her knees. Once the defendant arrived at the
hospital, he told Comeau that Veronica had fallen down the
stairs and had fallen off the breakfast stool, and that Delilah
had yelled at the top of the stairs that Veronica had fallen a
third time.
At Lawrence General Hospital, medical professionals
intubated Veronica to assist her breathing and took several X-
rays, including a head computerized tomography (CT) scan. She
was eventually "med-flighted" to Boston Children's Hospital,
where she arrived unresponsive and was displaying "posturing,"
which is an upper motor neuron sign signaling injury to the
brain. She was placed in the pediatric intensive care unit.
The head CT scan revealed a significant amount of swelling on
the left side of Veronica's brain, as well as bleeding in the
subdural space and the subarachnoid space. The swelling was
such that the left side of the brain was extending over and
encroaching into the right side of the brain, a condition known
in the medical community as a midline shift. A craniotomy
9
surgery was performed to help relieve the swelling and to help
drain some of the blood that had collected.
Dr. Celeste Wilson, a board-certified pediatrician and
child abuse specialist, examined Veronica and found that her
left pupil was fixed and dilated, and her right pupil was very
sluggishly reactive to light. Although she was not an
ophthalmologist, Dr. Wilson examined Veronica's eyes and found
bleeding in the back of both eyes. An ophthalmologist
subsequently examined Veronica and found bleeding, known as
retinal hemorrhages, in both eyes, with approximately twelve
hemorrhages on the right side and five hemorrhages on the left
side. Dr. Wilson also found bruising over Veronica's right eye,
as well as increased redness under the nostril and a bruise
under her chin. Dr. Wilson observed additional areas of
bruising or increased redness over Veronica's mid-chest, a
bruise on her right upper back, a bruise on her left lower back,
and bruising or increased redness on her right leg at the level
of the knee on the outer side and on her left leg on the inner
side.7 Veronica was given an electroencephalogram, a test that
measures seizure activity in the brain, as well as a magnetic
resonance imaging test and repeat head CT scans. The CT scans
revealed that a portion of Veronica's brain had infarcted, the
7
At trial, Dr. Celeste Wilson testified that it is not
possible to determine how long bruises have been present.
10
medical term for the loss of function in part of the brain, as a
result of the nerve injury. Tests did not reveal any spinal
cord damage; neck injury, aside from some swelling in the
tissues around the neck; or skull fracture.
Dr. Wilson offered her opinion that these injuries were
"consistent with non-accidental trauma." Specifically, she
testified that Veronica's injuries were consistent with shaken
baby syndrome,8 which she described as a clinical diagnosis based
on a constellation of findings that include subdural hemorrhage,
retinal hemorrhages, and possibly bruises or fractures. She
explained that shaken baby syndrome "is thought to occur as a
result of significant acceleration/deceleration forces . . .
when a caretaker vigorously shakes an infant such that the head
moves back and forth." This shaking leads to strain and tension
on the blood vessels in the brain, causing them to tear and
release blood. When a blood vessel tears in the subdural space,
it causes bleeding in the subdural space, i.e., a subdural
hemorrhage. The shaking forces also cause shearing and tearing
8
In 2009, the American Academy of Pediatrics in a policy
statement recommended that pediatricians "use the term 'abusive
head trauma' rather than a term that implies a single injury
mechanism, such as shaken baby syndrome, in their diagnosis and
medical communications." Christian, Block, and the Committee on
Child Abuse and Neglect, Abusive Head Trauma in Infants and
Children, 123 Pediatrics 1409, 1411 (2009). See Commonwealth v.
Millien, 474 Mass. 417, 423 n.7 (2016). In this opinion, we
refer to "shaken baby syndrome" (the term used at trial) and
"abusive head trauma" interchangeably.
11
on the nerves of the brain such that they release a substance
called cytokines, which then results in brain swelling.
Dr. Wilson testified that the normal activities of a
toddler, even one who is clumsy, would not account for the type
of injuries she described. She also testified that blood
testing was performed and did not reveal any sign that Veronica
was suffering from a blood disease or blood disorder. Finally,
she opined to a reasonable degree of medical certainty that a
fall of three feet could not cause Veronica's injuries and that
a fall down multiple stairs would be "extremely unlikely" to
cause them. She stated that, apart from shaking, the
circumstances that might cause a child to sustain these types of
injuries would be a high speed motor vehicle accident or a fall
from a building or from a height of "more than [ten] feet, more
. . . on the order of [seventy] feet." On cross-examination,
Dr. Wilson acknowledged that Dr. John Plunkett has conducted
research indicating that the same types of symptoms as occur in
shaken baby syndrome could occur from falls as low as three
feet, but she stated that such findings are not widely accepted
within the national community of pediatricians or recognized by
the American Academy of Pediatrics. She also admitted on cross-
examination that she could not say when Veronica's injuries were
inflicted, and that it was possible for Veronica to have
12
remained conscious for some period of time after their
infliction.
Comeau testified that Veronica was a clumsy child and fell
down often, that she bruised easily, and that she was being
treated for a blood disorder.9 She said that Veronica and
Delilah would jump off the couch and bed, and fight with each
other. She gave Veronica a bicycle in June, 2004, and Veronica
fell off and broke her arm several days later. The cast did not
come off until the week before the incident. The defendant also
described Veronica as "clumsy" and "accident prone" in his
interview to the police, and described specific instances when
Veronica had fallen, including three or four days prior when she
ran into a door and sustained a bump on her head and a slight
black eye. Grober similarly testified that she saw the girls
outside every day and that Veronica was often falling down and
"had a lot of accidents."10
Comeau also testified that in August or September, 2004,
the defendant told her he had slapped Veronica. Comeau saw a
"big red welt and a handprint" between Veronica's legs and
buttocks. During the police interviews the defendant admitted
that he and Comeau "occasionally" gave the children a "slap on
9
The type of blood disorder was not identified at trial.
10
Veronica was known as "Tonka" by her family because she
was clumsy and always banging into things and getting bruised.
13
the butt" as a disciplinary measure. Nika Fontaine, Comeau's
best friend and Delilah's godmother, testified that, when she
approached Comeau's home on an unknown date, she saw through the
screen door that the defendant put his hands on Veronica's arm
and shook her while Veronica was on the ground standing.
On the evening of October 10, the defendant waived the
Miranda rights and agreed to be interviewed by Trooper Robert
LaBarge of the State police and Detective Carl Rogers of the
Haverhill police department. He also agreed to be interviewed
later that evening by Trooper Brandon Arakelian of the State
police. Throughout the recorded interviews the defendant denied
causing Veronica's injuries, even after his interrogators told
him that the doctors at Children's Hospital had determined that
Veronica's injuries were intentionally inflicted and that they
could not have been caused by an accidental fall.11 The
defendant also stated that he did not think Comeau had caused
the injuries.12
11
Trooper Brandon Arakelian of the State police told the
defendant that Arakelian knew the "who" but was asking the
defendant "to answer the why, and tell [him] what happened, and
. . . how it happened." The defendant insisted, "I am answering
the why for you." Arakelian told the defendant that he did not
think the defendant was "a mean guy who did it on purpose," but
the defendant did not waiver in his insistence that he "didn't
do anything."
12
On October 13, Comeau was arrested and charged with child
endangerment. She spent three days in custody before she was
released on bail. During the time she was in custody, the
14
As a result of the events on October 9, Veronica is
paralyzed on the right side of her body and cannot walk.
According to Comeau, Veronica's cognitive abilities are
seriously limited and she "can't comprehend."
2. Closing arguments. Defense counsel informed the judge
on the first day of trial that he would not be pursuing a third-
party culprit defense and during his opening statement asked the
jury to consider "whether or not those injuries were caused by
the blows of [the defendant] or . . . by some other non-
intentional source." But defense counsel in closing argument
abandoned the argument that Veronica's injuries were accidental
and invited the jury instead to consider whether Comeau "struck
the blow that injured Veronica" when she came home from work on
her lunch break. He noted that Comeau was "angry and upset"
when she came home, and was alone upstairs with the children.
In contrast, he argued that the defendant was in a good mood
because he was winning in the football video game, and did not
have the state of mind necessary to injure Veronica. As to the
timing of the blow, defense counsel noted that Dr. Wilson had
testified that "although the child suffered a very severe,
Department of Children and Families (then the Department of
Social Services) removed Delilah from her home and placed her in
foster care, and initiated a care and protection proceeding to
remove custody of both children. The prosecutor later offered
to dismiss the charges against Comeau if she testified
truthfully against the defendant; Comeau accepted the offer.
15
traumatic shaking, . . . the child would not have been
immediately comatose."
The prosecutor in closing argument argued that the
defendant violently shook Veronica during the time that he was
upstairs and Fletcher was downstairs. She claimed that "two-
year olds get banged up and bruised, but they don't break like
this," arguing that "even the clumsiest two year old, even one
who's fallen off a [thirty-]inch stool or a couple of steps is
not left with parts of her brain that have literally died-off."
Rather, she said, only a fall from seventy feet or an automobile
crash where the child is ejected from the automobile could cause
these injuries. She argued that, because there was no evidence
of a fall or crash of this magnitude, the only possible cause of
Veronica's injuries is that the defendant shook "her so
violently that it inflict[ed] those rotational forces on her
brain and in her brain."
2. Motion for a new trial. The defendant, represented by
new counsel, filed a postconviction motion for a new trial under
Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001),
claiming first, that his trial counsel was ineffective for
failing to retain a medical expert to question whether
Veronica's injuries were caused by shaken baby syndrome and to
acknowledge the possibility that her injuries could have been
caused by an accidental short-distance fall, and second, that
16
newly available evidence, specifically new scientific advances
on shaken baby syndrome and short falls, warranted a new trial.
The motion judge, who was the trial judge, conducted a
three-day evidentiary hearing that concluded on May 15, 2013.
The defendant's trial counsel testified that he was aware prior
to the start of the trial that the Commonwealth was intending to
call Dr. Wilson as a witness, and that Dr. Wilson had diagnosed
Veronica with shaken baby syndrome. Although he was aware that
CT scans and other radiological images had been taken of
Veronica's brain, he did not attempt to obtain copies of the
scans. He conducted research into shaken baby syndrome and was
aware of the controversies around it, and contacted two experts
for assistance. The first expert originally agreed to be
retained but then was unable to do so. Counsel then contacted
Dr. Edward Sussman, a pathologist whose services he had used in
prior cases and in whom he had confidence. Before counsel
retained Dr. Sussman, he learned that Dr. Sussman believed in
the validity of shaken baby syndrome as a diagnosis. Without
viewing the CT and other radiological scans, Dr. Sussman advised
that Veronica's injuries were compatible with impact to the left
temporal lobe of the brain, and that the tearing of veins in her
brain and bilateral retinal hemorrhaging were "some evidence of
shaking." He also advised that the multiple sites of Veronica's
injuries were not compatible with a single fall. He said it was
17
possible that her injuries were caused by three separate falls
on the day of the incident, but unlikely because he did not
believe that the falls were of a great enough distance. Thus,
counsel chose not to call Dr. Sussman as a witness because
counsel "did not believe that he would be of value."
Trial counsel also contacted other attorneys who had worked
on shaken baby cases to find out which experts they had used.
At the time of the motion hearing, he could recall that he had
spoken with only one attorney and that the attorney had
consulted with Dr. Plunkett, but had not called him to testify
at trial. Counsel said that the attorney expressed an opinion
about Dr. Plunkett that led him to decide that Dr. Sussman was
"best." Counsel spoke with Dr. Sussman about Dr. Plunkett's
research regarding short falls, and Dr. Sussman told him that
Dr. Plunkett was an opponent of shaken baby syndrome but that
his opinions "had been refuted in several peer review articles."
Although trial counsel read literature critical of shaken
baby syndrome, he did not contact any of the authors of that
literature and did not seek to retain any other critics who
could be helpful as expert witnesses. He testified that he did
not choose to call an expert because he believed, based on his
conversations with other attorneys, that doctors who questioned
the validity of shaken baby syndrome were subject to attack by
their peers, which would render them more vulnerable to cross-
18
examination and might lead to a counter-expert being called by
the Commonwealth. He said, however, that if he had found an
expert from out-of-State who had solid credentials and could
assist the defense, he would have "brought in" that witness to
testify.
Regarding the strategy he ultimately did pursue, trial
counsel stated that "[his] preference was to blame [Comeau] for
the event" but "the problem that [he] had was that gap in time
between [Comeau] leaving and the child being found." He
explained that he did not pursue a third-party culprit defense
until the closing argument because of that concern, but once Dr.
Wilson testified that Veronica could have sustained the blow and
remained conscious after Comeau had left, he had the opportunity
to pursue this defense.
Dr. Joseph Scheller, a pediatrician and child neurologist,
testified regarding the scientific evidence that could have been
presented at trial on behalf of the defense. First, Dr.
Scheller described what he considered the questionable
foundation of shaken baby syndrome as a valid and scientifically
supported medical diagnosis. He explained that, although in
theory a violent shaking of a baby can cause injury, there is no
scientific evidence based on biomechanical models or animal
studies, or from video cameras or witnesses, to support the
claims made by proponents of shaken baby syndrome. He stated,
19
"[W]e don't really have scientific proof that [shaken baby
syndrome] happens like doctors say it happens and that [it] can
cause the injuries that are credited to it or connected with
it." Dr. Scheller further testified that scientific studies on
shaken baby syndrome that rely on perpetrator confessions are
flawed because the confessions are unreliable. He stated that
in the cases he has seen, the confession is one that is "either
exaggerated or coerced."13 Moreover, he stated, even if the
confession was assumed valid, he has "never once seen a
confession that explains every injury." He explained that,
although there are video recordings that exist of people
intentionally shaking babies, the babies in those video
recordings were not harmed in the way predicted by proponents of
shaken baby syndrome, and in fact all of those babies had normal
CT scans and eye exams and "turned out fine." Dr. Scheller also
testified that a child over three months old who is shaken is
unlikely to suffer any kind of head injury because the neck
would prevent the head from moving back and forth; however, "it
13
Dr. Joseph Scheller offered as an example one case in
which the child did not wake up, the parents admitted to shaking
the baby a little bit to awaken him or her, and such an
admission was reported as an admission of violent shaking. 14
Defense counsel has no duty to investigate a theoretically
possible defense that is not potentially substantial. See
Commonwealth v. Holliday, 450 Mass. 794, 807, cert. denied, 555
U.S. 947 (2008).
20
is very easy to imagine that these youngsters will have rib
injury, skin injury and limb injury."
Second, Dr. Scheller called into question Dr. Wilson's
diagnosis of Veronica. Specifically, Dr. Scheller testified
that the presence and extent of Veronica's retinal hemorrhages
do not prove that she was violently shaken. He stated that
while child abuse pediatricians and some ophthalmologists
believe one can actually shake the eyeball and cause a retinal
hemorrhage, it has never been done in a model and it has not
occurred in people known to have been shaken. In contrast, he
stated, "we absolutely do know that you can get retinal
hemorrhages from too much pressure." He opined, "[I]n a two-
year-old who has this type of head injury, the retinal
hemorrhage is absolutely zero evidence of any kind of shaking,
even [to] those who believe in the shaking theory[;] because
this child has so much pressure going on we have got to believe
that it was the pressure that caused the retinal hemorrhage."
He stated that he could not give an opinion to a reasonable
degree of medical certainty whether the amount and type of
retinal hemorrhages Veronica suffered would be more consistent
with abuse or falling down three stairs because "it could happen
with either" and the probability is "fifty/fifty."
Based on his review of Veronica's medical records, Dr.
Scheller offered an opinion to a reasonable degree of medical
21
certainty that Veronica suffered a subdural hemorrhage that
"could have easily been from an accidental injury, just as it
could have been from an inflicted injury[;] there was no way to
tell from what actually happened to Veronica that it was
accidental or inflicted." He further stated that Veronica's
injuries could have been caused by a short distance fall of two
and one-half to three feet onto her head, and there is no way to
tell from the medical records whether the brain swelling was
more likely to have been caused by a fall or by abuse. He
stated unequivocally, however, that, given the location of
Veronica's subdural hemorrhage, her injuries "did not come from
a shake" because it is impossible to cause a subdural hemorrhage
in only one side of the brain by shaking back and forth. He
concluded that "without any question [Veronica] received a blow
to the left side of the head and that caused bleeding
underneath, that caused the brain to swell underneath the
bleeding and all the other problems, but that blow could have
been an accidental blow or an intentional blow. There is just
no way to tell from looking at [the CT scan]."
Finally, Dr. Scheller testified that shaken baby syndrome
is the subject of heated debate and widespread disagreement
among forensic pathologists, radiologists, pediatricians,
ophthalmologists, and physicists and biomedical engineers. He
stated that, although in 2006 every pediatrician and child abuse
22
specialist he met believed strongly that shaken baby syndrome
was a valid diagnosis, in the more recent past a "significant
minority" has recognized that the science behind shaken baby
syndrome is questionable and has instead adopted the term
"abusive head trauma" or "abusive head injury" as a more general
term for inflicted injury. He stated that ophthalmologists
disagree on whether retinal hemorrhages prove shaken baby
syndrome; although the majority agree that retinal hemorrhages
provide some evidence in support of a shaken baby syndrome
diagnosis, a minority of ophthalmologists believe that their
presence does not point to a specific diagnosis. Dr. Scheller
testified that, among radiologists, pathologists, and
pediatricians, the majority supporting the shaken baby syndrome
theory has shrunk. He stated that nothing has changed in his
view or in the literature since 2007, and that he would have
come to the same conclusions about the cause of Veronica's
injuries in 2007. Dr. Scheller stated that the only change in
the debate since 2007 has been in the increased acceptance of
the views critical of shaken baby syndrome.
The judge denied the motion for a new trial, concluding
that trial counsel's decision not to call an expert was a
strategic judgment that was not manifestly unreasonable. The
judge reasoned that, had counsel called a scientific expert to
testify, he would have had to "address the expert's
23
vulnerabilities on cross-examination." The judge found that
counsel instead "used his agile and compelling cross-examination
of Dr. Wilson to make all the essential points he needed" to
suggest the possibility that Comeau, not the defendant, had
struck the blows that injured Veronica, which was a reasonable
defense strategy. The judge also rejected the defendant's newly
discovered evidence claim, determining that the defendant's
proffered evidence regarding shaken baby syndrome and accidental
short falls was not newly discovered because five of the seven
articles that Dr. Scheller relied upon were published before
trial and, even if it were newly discovered, the defendant's
evidence that the views of Drs. Plunkett and Scheller were "now
widely accepted is not credible." The judge also found that the
conclusion that the medical evidence in this case was consistent
with shaken baby syndrome or abusive head trauma rather than
with multiple short falls "is supported by overwhelming medical
evidence."
The defendant appealed, and the Appeals Court affirmed the
denial of the defendant's motion for a new trial and the
defendant's conviction in an unpublished memorandum and order
issued pursuant to its rule 1:28. See Commonwealth v. Epps, 87
Mass. App. Ct. 1116 (2015). The Appeals Court held that trial
counsel was not ineffective because his failure to call an
expert to testify was a strategic decision, and that decision
24
was not "manifestly unreasonable" because, as the motion judge
reasoned, counsel made all of the essential points he needed to
make on cross-examination, and "[a]ny further exploration into
this area . . . would have undermined the defendant's ultimate
defense that someone other than the defendant, i.e., the
victim's mother, inflicted the victim's injuries." The Appeals
Court further reasoned that counsel's decision not to call an
expert was not unreasonable because the research proffered by
the defendant at the motion for a new trial "remains in the
significant minority and subject to sizeable attack." The court
also agreed with the judge's ruling on the newly discovered
evidence claim. We granted the defendant's motion for further
appellate review.
Discussion. 1. Ineffective assistance of counsel. To
prevail on a motion for a new trial claiming ineffective
assistance of counsel, a defendant must show that there has been
a "serious incompetency, inefficiency, or inattention of counsel
-- behavior of counsel falling measurably below that which might
be expected from an ordinary fallible lawyer," and that
counsel's poor performance "likely deprived the defendant of an
otherwise available, substantial ground of defence."
Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Where
defense counsel makes a strategic decision not to present a
potentially substantial defense, we "ask whether the decision
25
was manifestly unreasonable when made." Commonwealth v. LaBrie,
473 Mass. 754, 771 (2016). See Commonwealth v. Kolenovic, 471
Mass. 664, 674-675 (2015) ("The manifestly unreasonable test,
therefore, is essentially a search for rationality in counsel's
strategic decisions, taking into account all the circumstances
known or that should have been known to counsel in the exercise
of his duty to provide effective representation to the client
and not whether counsel could have made alternative choices").
Where that strategic decision is made after conducting a
complete investigation of the possible defense, we give
deference to defense counsel's decision and determine whether it
was manifestly unreasonable for counsel to forgo that defense
based on the information available to counsel at the relevant
time. See Commonwealth v. Holliday, 450 Mass. 794, 807, cert.
denied, 555 U.S. 947 (2008); Commonwealth v. Candelario, 446
Mass. 847, 854-858 (2006) (counsel's failure to pursue lack of
criminal responsibility defense was not manifestly unreasonable
where "[counsel] took appropriate steps to investigate such
defenses and, after doing so, made a tactical decision that the
defenses were unlikely to succeed"). But where a strategic
decision is made to conduct something less than a complete
investigation of a potentially substantial defense, either
because defense counsel decided to forgo that defense or to
present it at trial without complete investigation, we ask
26
whether it was manifestly unreasonable to conduct so limited an
investigation. See Labrie, supra, quoting Commonwealth v. Lang,
473 Mass. 1, 14 (2015) (Hines, J., concurring) ("Strategic
choices made before a complete investigation are reasonable
'[only] to the extent that reasonable professional judgments
support the limitation on investigation'"); Kolenovic, supra at
670, 675 (counsel's decision to forgo further evaluation of
defendant for posttraumatic stress disorder [PTSD] after
consulting with one expert not manifestly unreasonable where
"counsel had done what was necessary to identify the defense
options based on PTSD" and "made the strategic decision that a
lack of criminal responsibility or diminished capacity defense
was unlikely to succeed and that further investigation was
unnecessary").
Defense counsel has a professional obligation to
investigate all potentially substantial defenses.14 See
Commonwealth v. Alcide, 472 Mass. 150, 160 (2015); Commonwealth
v. Haggerty, 400 Mass. 437, 441-442 (1987). The extent of
investigation required to explore each potential defense depends
on the strength of that defense relative to the availability and
strength of other potential defenses. See Kolenovic, 471 Mass.
14
Defense counsel has no duty to investigate a
theoretically possible defense that is not potentially
substantial. See Commonwealth v. Holliday, 450 Mass. 794, 807,
cert. denied, 555 U.S. 947 (2008).
27
at 676 ("choice between a [lack of criminal responsibility]
defense that . . . would require riding 'two horses,' and a
viable alternative defense based on the factually unassailable
intoxication defense developed by counsel" justified lack of
investigation into lack of criminal responsibility defense);
Haggerty, supra at 442 ("[f]ailure to investigate the only
defense a defendant has, if facts known to or with minimal
diligence accessible to counsel support that defense, falls
beneath the level of competency expected"). See also Lang, 473
Mass. at 15 (Hines, J., concurring); Commonwealth v. Baker, 440
Mass. 519, 529 (2003).
Here, the defendant's trial counsel chose not to consult
with any further experts after speaking with one expert who he
knew did not question the validity of shaken baby syndrome and
who, without having viewed the medical records, offered the
opinion that Veronica's injuries could not possibly have been
caused by the accidental falls described by the defendant. We
consider whether, in the circumstances of this case, it was
manifestly unreasonable for counsel to have decided to confer
with no other expert who might challenge the diagnosis of shaken
baby syndrome or who might challenge the opinion that Veronica's
symptoms could not possibly have been caused by the accidental
falls described by the defendant.
28
As became apparent at trial, defense counsel reasonably had
two alternative lines of defense: he could argue that there was
a reasonable doubt whether the defendant caused Veronica's
injuries because of the possibility that her injuries were
caused by the accidental falls she sustained earlier that
morning -- falling down the stairs, falling off the stool, or
the cumulative effect of both falls; or that there was a
reasonable doubt whether the defendant caused Veronica's
injuries because of the possibility that Comeau intentionally
inflicted the injury. The accidental defense had significant
evidentiary support in that the defendant had consistently
reported that Veronica fell down the stairs earlier that morning
and had fallen off the stool at breakfast. The defendant's
report that Veronica fell from the stool was strongly
corroborated:
 The defendant told Fletcher about it when he arrived at the
home, and Fletcher saw a "bump" over Veronica's left eye;
 When Comeau came home during her lunch break, the "bump"
was now "dime-sized," and the defendant told her that
Veronica had fallen from the stool; and
 Veronica herself told Comeau that she had hit her head.
Moreover, although the prosecution theory was that the defendant
violently shook Veronica after Delilah had reported that
Veronica had fallen, defense counsel reasonably could have
29
argued that Veronica was already unconscious when Delilah called
(as the defendant reported to police) because a four year old is
unlikely to report to his or her caretaker an ordinary fall by a
two year old sibling, especially when, as here, the sibling fell
so often that she earned the nickname of "Tonka." When Comeau
returned to her home after Veronica had become unconscious, she
reported that she saw a big "red and purple/black" lump on
Veronica's forehead, which permitted the inference that the bump
from the fall had grown into this discolored lump.
At the time of 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.15 Numerous studies had also been published at the time
15
See, e.g., Roth, Raul, Ludes, & Willinger, Finite Element
Analysis of Impact and Shaking Inflicted to a Child, 121 Int'l
J. Legal Med. 223, 225 (2007) (based on computer simulation,
eighteen inch fall as likely to cause subdural hemorrhage as
shaking); Prange, Coats, Duhaime, & Margulies, Anthropomorphic
Simulations of Falls, Shakes, and Inflicted Impacts in Infants,
99 J. Neurosurgery 143 (2003) (shaking and minor falls produce
similar rotational responses, with falls of only twelve inches
with head impact producing accelerations in excess of those
produced during shaking); Hymel, Jenny, & Block, Intracranial
Hemorrhage and Rebleeding in Suspected Victims of Abusive Head
Trauma: Addressing the Forensic Controversies, 7 Child
Maltreatment 329 (2002) (describing two cases of serious head
trauma from accidental short falls); Jenny, Shams, Rangarajan, &
Fukuda, Development of a Biofidelic 2.5 kg Infant Dummy and Its
Application to Assessing Infant Head Trauma During Violent
Shaking, Injury Biomechanics Research, Proceedings of the
Thirtieth International Workshop, at 138 (Nov. 10, 2002) (based
30
of trial challenging the view that shaking alone can produce the
types of injuries associated with shaken baby syndrome.16
Although these issues were hotly contested in the relevant
medical and scientific fields, see People v. Ackley, 497 Mich.
381, 385 (2015); State v. Edmunds, 308 Wis. 2d 374, 385-386
(2008), and although the experts who would support the positions
beneficial to the defense were in the minority in this debate,
there was significant medical and scientific support for these
on biomechanical experiment, maximum head center of gravity
acceleration produced by shaking less than one-third of that
produced by rolling off sofa); Plunkett, Fatal Pediatric Head
Injuries Caused by Short-Distance Falls, 22 Am. J. Forensic Med.
& Pathology 1, 7-9 (2001) (symptoms attributed to shaken baby
syndrome also found in fatal short falls); Christian, Taylor,
Hertle, & Duhaime, Retinal Hemorrhages Caused by Accidental
Household Trauma, 135 J. Pediatrics 125, 127 (1999) (reporting
three cases of infants between seven months and thirteen months
of age who had retinal hemorrhages after short falls); Hall,
Reyes, Horvat, Meller, & Stein, The Mortality of Childhood
Falls, 29 J. Trauma 1273-74 (1989) (of fatal falls by children
in Cook County, Illinois, during four-year period, forty-one per
cent were minor falls from less than three feet).
16
See, e.g., Bandak, Shaken Baby Syndrome: A Biomechanics
Analysis of Injury Mechanisms, 151 Forensic Sci. Int'l 71, 78
(2005) (infant shaking cannot cause serious injuries without
also resulting in neck injury); Ommaya, Goldsmith, & Thibault,
Biomechanics and Neuropathology of Adult and Pediatric Head
Injury, 16(3) Brit. J. of Neurosurgery 220, 233 (2002) (based on
standard biomechanical principles, shaken baby syndrome
hypothesis requires forces that are biomechanically improbable
and increased intracranial pressure is more likely to cause
retinal bleeding than shaking); Duhaime, Gennarelli, Thibault,
Bruce, Margulies, & Wiser, The Shaken Baby Syndrome: A
Clinical, Pathological, and Biomechanical Study, 66 J.
Neurosurgery 409, 413-414 (1987) (subjecting biomechanical model
to repetitive violent shaking demonstrated that shaking fell
below established injury thresholds).
31
minority positions. See notes 15 and 16, supra; note 17, infra;
Millien, 474 Mass. at 435 n.16, 438 n.20. There were also
published articles that identified the methodological
shortcomings of the research supporting the majority view on
shaken baby syndrome,17 and that highlighted the difficulties
faced by physicians in accurately diagnosing the cause of
injuries that appear to have been caused by child abuse.18
17
See, e.g., Vinchon, Defoort-Dhellemmes, Desurmont, &
Dhellemmes, Accidental and Nonaccidental Head Injuries in
Infants: A Prospective Study, 102 J. Neurosurgery: Pediatrics
380, 383 (2005) ("[T]he evaluation of the incidence of [retinal
hemorrhages] in child abuse remains a self-fulfilling prophecy"
because children are diagnosed as being abused "in great part
based on the presence of [retinal hemorrhage]"); Donohoe,
Evidence-Based Medicine and Shaken Baby Syndrome, 24 Am. J.
Forensic Med. & Pathology 239, 240-241 (2003) (performing review
of shaken baby syndrome literature from 1966 through 1998 and
concluding that "there existed serious data gaps, flaws of
logic, inconsistency of case definition, and a serious lack of
tests capable of discriminating [non-accidental injury] cases
from natural injuries. . . . [By 1999] the commonly held
opinion that the finding of [subdural hematoma] and [retinal
hemorrhages] in an infant was strong evidence of [shaken baby
syndrome] was unsustainable"). For example, in one study
seeking to determine whether short falls of children cause
death, after finding an unexpectedly large number of deaths
after reported short falls, the author excluded those deaths
because they assumed those reports to be false. See Chadwick,
Chin, Salerno, Landsverk, & Kitchen, Deaths from Falls in
Children: How Far Is Fatal?, 31 J. Trauma 1353, 1355 (1991).
18
See, e.g., Christian, Taylor, Hertle, & Duhaime, Retinal
Hemorrhages Caused by Accidental Household Trauma, 135 J.
Pediatrics 125, 127 (1999) (recognizing overlap between
accidental and abusive head injury and cautioning against
presumption of abuse when infants under one year present with
traumatic retinal hemorrhages); Sirotnak, Medical Disorders that
Mimic Abusive Head Trauma, in Abusive Head Trauma in Infants and
Children 191 (2006) (many conditions mimic abusive head trauma);
32
In contrast, the alternative defense that Comeau had shaken
Veronica would have required a jury to accept as a reasonable
possibility that the natural mother of Veronica, rather than the
boy friend with no biological connection to Veronica, violently
shook Veronica when she came home during her lunch break. Apart
from the inherent difficulty in persuading a jury to accept such
a possibility, this defense suffered from two additional
challenges: Veronica appeared normal and continued to play
after Comeau returned to work, and the defendant told the police
that he did not believe Comeau had inflicted the injury.19 In
light of these difficulties, it is not surprising that defense
counsel told the judge on the first day of trial that he did not
Barnes, Ethical Issues in Imaging Nonaccidental Injury: Child
Abuse, 13(2) Topics in Magnetic Resonance Imaging 85, 86-87, 91
(2002) (applying standard of evidence-based medicine to shaking
mechanism and concluding that no scientific basis exists
indicating force required to produce traumatic brain injury and
that many conditions mimic child abuse); Case, Graham, Handy,
Jentzen, & Monteleone, Position Paper on Fatal Abusive Head
Injuries in Infants and Young Children, 22 Am. J. Forensic Med.
& Pathology 112, 116-117 (2001) (acknowledging that retinal
hemorrhages have many nontraumatic causes, including increased
intracranial pressure, bleeding disorders, sepsis, meningitis,
and vasculopathies, and that pathogenesis of retinal hemorrhages
is not precisely understood).
19
Based on the information in the record, counsel made no
effort to locate a medical expert who would support the
contention that a child who suffered Veronica's injuries from a
violent shaking could have a lucid interval between the shaking
and the manifestation of symptoms.
33
intend to offer a defense of third-party culprit,20 and that he
invited the jury in opening statement to consider whether
Veronica's injuries were accidental rather than inflicted.
Without an expert to testify to the possibility that
Veronica's injuries might have been caused by her accidental
falls, all that trial counsel was able to do to advance the
theory of accident was to ask Dr. Wilson to acknowledge the
existence of Dr. Plunkett's findings regarding short falls,
which Dr. Wilson did and then noted that Dr. Plunkett's findings
were not widely accepted within the national community of
pediatricians and were not recognized by the American Academy of
Pediatrics (AAP). It should have been entirely foreseeable
that, when defense counsel invites a prosecution expert to
acknowledge findings in support of a minority position in the
field of science or medicine, the expert will diminish the
significance of those findings by testifying that they are not
credited by the majority of experts in the field. And without
an expert to testify in support of the minority position, or
vigorous cross-examination prepared with the assistance of such
an expert, there is no reason to believe that a jury will be
persuaded by a view rejected by the majority of experts in a
20
Defense counsel was able to resurrect the Comeau defense
in closing argument only because the prosecutor elicited
testimony from Dr. Wilson that a child after having been shaken
may not immediately be unconscious or comatose, but would not
likely be playful or eating normally.
34
learned field. Defense counsel apparently recognized the
futility of an accident defense without the testimony or aid of
such an expert, because, in closing argument, he effectively
abandoned the accident defense entirely, and asked the jury
simply to consider who "struck the blow."21
Having informed the judge at the beginning of trial that he
did not plan to pursue a third-party culprit defense, defense
counsel's failure to consult with any expert other than Dr.
Sussman effectively meant that the defendant commenced trial
without any substantial defense, even though further
investigation would have supported a potentially substantial
defense of accident.22 Trial counsel testified that he would
have retained an expert to testify if he could have found one
with "solid credentials" who could assist the defense. But when
asked if he made "any inquiries into whether any experts other
than Dr. Plunkett would be helpful as witnesses in this case,"
he answered, "No." He also testified that he never contacted
21
Defense counsel in closing argument went so far as to
tell the jury, mistakenly, that the defendant during his
interviews with the police admitted that the falls he described
could not have caused Veronica's injuries.
22
Apart from the substantial evidence that Veronica had
suffered some head injury from her fall off the stool, the
medical evidence revealed that Veronica suffered no neck injury.
There was medical literature published at the time of trial that
concluded that neck injury would be inevitable in a shaking so
violent as to have caused the symptoms associated with shaken
baby syndrome. See note 16, supra; Millien, 474 Mass. at 433
n.15.
35
any of the authors of the scholarly articles that questioned the
validity of shaken baby syndrome or that recognized the
possibility that short falls could cause the type of injuries
usually associated with shaken baby syndrome. Where there was
strong, corroborated evidence that Veronica had suffered a head
injury from at least one short accidental fall, where accident
was the defense that counsel presented to the jury in opening
statement, and where this defense was tenable only with the aid
of an expert to challenge the majority views on short falls and
shaken baby syndrome, it would have been manifestly unreasonable
for counsel to have made so little effort to find and retain
such an expert if there were experts available with "solid
credentials," that is, experts who could have been found
credible by a reasonable jury, and who challenged these views.
Whether counsel's representation in this case was
ineffective, therefore, rests on whether, at the time of trial
in July, 2007, there were credible experts available who
challenged the majority views on short falls and shaken baby
syndrome. The record, however, is sparse on this issue; the
existence of scientific and medical studies would certainly
provide the factual basis for an expert to offer a minority
opinion on these subjects, but that does not mean that experts
were readily available in 2007 who were prepared and willing to
offer such opinions in a criminal case. Dr. Scheller testified
36
that credible experts were available to testify in 2007, but we
note that the judge did not find Dr. Scheller credible as an
expert himself in part because of his assertions that ventured
well beyond what was necessary to his opinion that the injuries
suffered by Veronica reasonably could have been caused by her
accidental falls.23 For reasons that will soon become clear,
however, we need not determine whether it was manifestly
unreasonable in 2007 for counsel to have failed to find a
credible expert who shared the minority view in this scientific
controversy.
2. Newly discovered evidence. We now consider whether
there was newly discovered evidence in the form of new
scientific or medical findings. Newly discovered evidence
warrants a new trial where that evidence "would probably have
been a real factor in the jury's deliberations" and where its
absence at trial "casts real doubt on the justice of the
conviction." Commonwealth v. Cowels, 470 Mass. 607, 616, 617
(2015), quoting Commonwealth v. Grace, 397 Mass. 303, 305, 306
(1986). Evidence is newly discovered where it was "unknown to
the defendant or his counsel and not reasonably discoverable"
through "reasonable pretrial diligence." Grace, supra at 306.
23
For instance, the judge found "absurd" Dr. Scheller's
testimony that people generally do not shake babies out of
frustration and that the perception that they do is the result
of "public relation campaigns launched by child abuse
pediatricians."
37
Since the defendant's trial, several additional studies
have been published that provide further support for the view
that subdural hematomas, retinal hemorrhages, and other forms of
significant head injury can result from accidental short falls.24
More research has also been conducted that casts doubt on the
view that shaking alone can cause serious head injury.25 And
more articles have been published in medical and scholarly
journals questioning the diagnostic significance of the symptoms
previously thought indicative of shaken baby syndrome.26
24
See Barnes, Imaging of Nonaccidental Injury and the
Mimics: Issues and Controversies in the Era of Evidence-Based
Medicine, 49 Radiologic Clinics of N. Am. 205, 217 (2011) (based
on clinical, biomechanical, neuropathological, and neuro-
radiological evidence, significant head injury, including
subdural and retinal hemorrhages, may result from low level
falls); Squier, The "Shaken Baby" Syndrome: Pathology and
Mechanisms, 122 Acta Neuropathologica 519 (2011) (same);
Cummings, Trelka, & Springer, Atlas of Forensic Histopathology,
Cambridge Univ. Press (2011) (skull fractures, subdural
hematomas, and retinal hemorrhages have all been found after
short falls); Lantz & Couture, Fatal Acute Intracranial Injury,
Subdural Hematoma, and Retinal Hemorrhages Caused by Stairway
Fall, 56(6) J. Forensic Sciences 1648 (2011) (case study of
infant who fell from short height and had subdural hemorrhage,
midline shift, mild edema, and severe retinal hemorrhages).
25
See, e.g., Jones, Martin, Williams, Kemp, & Theobald,
Development of a Computational Biomechanical Infant Model for
the Investigation of Infant Head Injury by Shaking, 55 Med.,
Sci., & Law 291 (2015) (biomechanical study using computational
model suggests shaking cannot generate levels of force necessary
to produce injuries associated with abusive head trauma).
26
See Anderst, Carpenter, Abshire, Bleeding Disorders in
Suspected Child Abuse, 131 Pediatrics 1314, 1320-1321 (2013)
(demonstrating that bleeding disorders can cause or aggravate
findings that can be attributed to abuse and recommending more
38
This research appears to have influenced the position of
the AAP regarding the diagnosis of child abuse in head injuries.
In July, 2001, the Committee on Child Abuse and Neglect of the
AAP declared, "Although physical abuse in the past has been a
diagnosis of exclusion, data regarding the nature and frequency
of head trauma consistently support the need for a presumption
of child abuse when a child younger than [one] year has suffered
an intracranial injury." Shaken Baby Syndrome: Rotational
Cranial Injuries -- Technical Report, 108 Pediatrics 206, 206
(2001). In 2009, however, the AAP acknowledged in a policy
statement that "[f]ew pediatric diagnoses engender as much
debate as [abusive head trauma]." Christian, Block, & Committee
on Child Abuse and Neglect of American Academy of Pediatrics,
Abusive Head Trauma in Infants and Children, 123 Pediatrics
1409, 1410 (2009). The AAP recognized that the "[c]ontroversy
is fueled because the mechanisms and resultant injuries of
accidental and abusive head injury overlap, the abuse is rarely
witnessed, an accurate history of trauma is rarely offered by
the perpetrator, there is no single or simple test to determine
extensive evaluations to test for presence of these disorders);
Guthkelch, Problems of Infant Retino-Dural Hemorrhage with
Minimal External Injury, 12 Hous. J. Health L. & Pol'y 201
(2012) (due to the complexity of infant brain, "we should not
expect to find an exact or constant relationship between the
existence or extent of retino-dural hemorrhage and the amount of
force involved, let alone the state of mind of the perpetrator.
Nor should we assume that these findings are caused by trauma,
rather than natural causes").
39
the accuracy of the diagnosis, and the legal consequences of the
diagnosis can be so significant." Id. The 2009 policy
statement no longer spoke of a presumption of child abuse, and
instead declared, "A medical diagnosis of [abusive head trauma]
is made only after consideration of all clinical data," noting
that pediatricians "have a responsibility to consider
alternative hypotheses when presented with a patient with
findings suggestive of [abusive head trauma]." Id.
If defense counsel had offered expert testimony at trial
questioning the validity of the scientific foundation of the
diagnosis of shaken baby syndrome, and discussing the
possibility that accidental short falls can cause injuries
generally associated with shaken baby syndrome, the studies
published after July, 2007, and the changes in the AAP policy
statement might have lent more credibility to that expert
testimony, but this generally would not be enough alone to
justify a new trial. See Commonwealth v. Shuman, 445 Mass. 268,
275-276 (2005) (where defendant offered expert testimony at
trial, proffer of new scientific evidence that constitutes
"mere[] . . . broadening of the research . . . already present
in legal and scientific circles" or "mere addition of further
information to the preexisting debate" would not be "significant
enough to create a substantial risk that the jury would have
reached a different conclusion had the evidence been admitted at
40
trial"); Commonwealth v. LeFave, 430 Mass. 169, 181 (1999).
But, here, defense counsel did not present any expert testimony
because he claimed he could not find an expert with "solid
credentials" who could assist the defense. Consequently, apart
from the brief reference to Dr. Plunkett's research on
accidental falls referenced on cross-examination, the jury heard
nothing that would allow them to have a reasonable doubt whether
Veronica's injuries had been caused by her accidental falls.
Yet, in view of the new research published after trial and the
number of published court cases where such experts have
testified, competent counsel today would, with diligent effort,
have been able to retain such an expert and offer the jury an
alternative interpretation of the evidence. See, e.g., In re
Fero, 192 Wash. App. 138, 156-157 (2016) ("the medical community
now recognizes that [the constellation of injuries associated
with shaken baby syndrome], which was once believed could only
be inflicted by car accidents, long falls, or child abuse, can
actually be caused by short falls and other low-impact
accidents, in addition to various natural causes"); Ackley, 497
Mich. at 391-392 (noting "prominent controversy within the
medical community regarding the reliability of [shaken baby
syndrome]/[abusive head trauma] diagnoses"); Edmunds, 308 Wis.
2d 385-386 ("a significant and legitimate debate in the medical
community has developed in the past ten years over whether
41
infants can be fatally injured through shaking alone, whether an
infant may suffer head trauma and yet experience a significant
lucid interval prior to death, and whether other causes may
mimic the symptoms traditionally viewed as indicating shaken
baby or shaken impact syndrome").
Therefore, we confront this dilemma: if the defendant were
deprived of an available defense because counsel was
ineffective, we would determine whether there was a substantial
risk of a miscarriage of justice and, if there was, we would
conclude that the interests of justice require a new trial. See
Millien, 474 Mass. at 432 ("substantial risk of a miscarriage of
justice" standard is same as prejudice standard under second
prong of ineffective assistance of counsel test). But what do
we do if we determine that the defendant was deprived of a
substantial defense only because, if the trial were conducted
today, it would be manifestly unreasonable for counsel to fail
to find and retain a credible expert given the evolution of the
scientific and medical research?27
27
We emphasize that our focus on the search for a credible
expert is framed by the unusual circumstances of this case.
Where the medical and scientific community is less divided or
where the minority position has less medical or scientific
support, or alternatively, where the defense is weaker relative
to other reasonably available defenses, it is generally not
manifestly unreasonable to consult only with one expert when
that expert offers an opinion that a defense is not viable.
This is especially true where the defense rarely succeeds, such
as a defense of lack of criminal responsibility. See
42
We conclude that our touchstone must be to do justice, and
that requires us to order a new trial where there is a
substantial risk of a miscarriage of justice because a defendant
was deprived of a substantial defense, regardless whether the
source of the deprivation is counsel's performance alone, or the
inability to make use of relevant new research findings alone,
or the confluence of the two. See Commonwealth v. Brescia, 471
Mass. 381, 388 (2015) ("if it appears that justice may not have
been done, the valuable finality of judicial proceedings must
yield to our system's reluctance to countenance significant
individual injustices").
Therefore, we need not determine whether it was manifestly
unreasonable in July, 2007, for trial counsel to have failed to
Commonwealth v. Kolenovic, 471 Mass. 664, 675 (2015) (noting
"extreme difficulty in successfully defending a murder case
based on a lack of criminal responsibility defense"). But the
research regarding cases where the prosecutor contends that a
young child was injured by a violent shaking suggests that "the
most important predictor of an acquittal is the defense
presentation of nationally prominent experts who challenge the
science." Tuerkheimer, The Next Innocence Project: Shaken Baby
Syndrome and the Criminal Courts, 87 Wash. U. L. Rev. 1, 37-38
(2009). In cases such as these, where there is strong evidence
that a young child hit his or her head after an accidental fall
shortly before the child's devastating head injuries became
manifest, defense counsel might reasonably choose not to present
an expert at trial to testify to the possibility that a short
fall could have caused the injuries, and might reasonably
decline to pursue a short fall defense at trial, but it is
manifestly unreasonable for counsel to make such a strategic
decision without making a diligent effort to consult with an
expert with "solid credentials" who recognizes the possibility
that short falls can cause severe injuries in young children.
43
make the additional effort needed to find an appropriate expert.
It suffices that we conclude that the defendant was deprived of
a defense from the confluence of counsel's failure to find such
an expert and the evolving scientific research that demonstrates
that a credible expert could offer important evidence in support
of this defense.28
3. Prejudice. In evaluating whether there is a
substantial risk of a miscarriage of justice arising from the
deprivation of this defense, we conduct a prejudice analysis
comparable to the analysis we conduct after finding that defense
counsel was ineffective or that newly discovered evidence has
emerged. See Millien, 474 Mass. at 432 (where it was manifestly
unreasonable for counsel to fail to present defense, we
determine whether "we have a serious doubt whether the jury
verdict would have been the same had the defense been
presented"); Grace, 397 Mass. at 305-306 (newly discovered
evidence warrants new trial where that evidence "would probably
have been a real factor in the jury's deliberations" and its
absence at trial "casts real doubt on the justice of the
conviction"). We have a serious doubt in this case whether the
28
Although we conclude that the judge erred in failing to
evaluate under Mass. R. Crim. P. 30 (b), as appearing in 435
Mass. 1501 (2001), whether "justice may not have been done"
because of the confluence of counsel's performance and the
evolving scientific research, we recognize that we can cite no
case presenting the unusual circumstances found here that would
justify such an analysis.
44
jury verdict would have been the same had the jury heard expert
testimony regarding the possibility that short falls can cause
severe head injuries in young children.
Here, the prosecution was able to persuade the jury that it
had eliminated the alternative explanation of accidental short
falls because the only medical expert who testified offered the
opinion that injuries of the type and severity suffered by
Veronica could not have been caused by the short falls described
by the defendant, and the only evidence to the contrary was the
brief reference to Dr. Plunkett's study on short falls, the
findings of which the jury learned from Dr. Wilson were not
widely accepted within the national community of pediatricians
and had not been recognized by the AAP. If the jury had learned
that injuries of the type and severity suffered by Veronica
could have been caused by short falls of the type described by
the defendant, they might have had reasonable doubt whether the
defendant violently shook Veronica after he left Fletcher to go
upstairs. A reasonable jury could have found that Veronica fell
down the stairs and later fell off the kitchen stool, and that
one (or the combination) of these falls caused the bump on her
forehead that had grown to the size of a dime when Comeau came
home on her lunch break and grew into a discolored lump by the
time she returned home. Based on Dr. Wilson's testimony, a
reasonable jury could have found that Veronica could have
45
remained conscious after even a severe fall, and lost
consciousness after a lucid interval. A reasonable jury could
also have inferred that Delilah called the defendant to tell him
that Veronica had fallen, not because of any routine fall, but
because Veronica had fallen after losing consciousness, and that
the defendant found her unconscious when he went upstairs. The
missing link in the defendant's accident defense was any
credible expert evidence that one or both of these accidental
falls could have caused Veronica's injuries.
Were an expert such as Dr. Scheller to testify at such a
trial today, the expert could offer the opinion that it is
possible for a child to suffer serious head injuries from an
accidental short fall. See notes 15 and 24, supra; Millien, 474
Mass. at 435 n.16; In re Fero, 192 Wash. App. at 156-157. Once
the expert's opinion is challenged on cross-examination, the
expert on redirect examination could cite and explain the
numerous studies published in peer-reviewed journals that
support this proposition. Such an expert witness on redirect
examination also could cite and explain the numerous studies
challenging the view that shaking alone can produce injuries of
the type and severity suffered by Veronica. See notes 16 and
25, supra; Millien, 474 Mass. at 433 n.15. See also Cavazos v.
Smith, 132 S. Ct. 2, 10 (2011) (Ginsburg, J., dissenting),
quoting Edmunds, 308 Wis. 2d at 385 ("[d]oubt has increased in
46
the medical community 'over whether infants can be fatally
injured through shaking alone'"). If such an expert were to
cause the jury to doubt whether violent shaking alone could have
caused Veronica's severe injuries, they may ask whether there is
any evidence that Veronica was not only shaken, but perhaps
slammed against the wall or thrown to the floor. But Fletcher
heard nothing unusual while the defendant was upstairs, and
Veronica did not suffer any skull fracture or neck injuries.
And if such an expert were to cause the jury to question whether
Veronica's injuries were caused by impact trauma rather than
violent shaking, they might more carefully consider whether the
impact trauma described by the defendant -- Veronica's fall down
the stairs and off the kitchen stool -- could have caused her
head injuries.
Such expert opinion testimony likely would be challenged on
cross-examination or by a prosecution expert called in rebuttal,
where the studies in peer-reviewed journals that support the
prosecution theory of shaken baby syndrome could be cited and
discussed. We need not determine who would prevail in this
battle of the experts, or whether the defendant would be found
not guilty were it presented. We need only determine, in the
circumstances of this case, whether there is a substantial risk
of a miscarriage of justice where the jury heard no scientific
or medical expert challenging the majority views on shaken baby
47
syndrome and short falls, and where new research has emerged
since the time of trial that would lend credibility to the
opinion of such an expert. Because we conclude that there is a
substantial risk of a miscarriage of justice here, we cannot
allow this conviction to stand.
Conclusion. We conclude that, in the circumstances of this
case, there was a substantial risk of a miscarriage of justice,
and we therefore reverse the denial of the defendant's motion
for a new trial, vacate the conviction, and remand the case to
the Superior Court for a new trial.
So ordered.