Full Court Press: SJC gives shaken-baby defenses a major boost

The jury is still out on shaken baby syndrome, but the Supreme Judicial Court made one thing clear yesterday — the controversial diagnosis has flaws that any competent attorney should be able to pick apart.

In ordering a new trial for Oswelt Millien yesterday, the unanimous court didn’t throw out the science or chastise those doctors who stand by the embattled diagnosis. Instead, it told defense attorneys that there is a road map to reasonable doubt lined with experts, articles and scholarly treatises.

“By vacating the defendant’s convictions in this case and ordering a new trial, we do not claim to have resolved the ongoing medical controversy as to how often the triad of symptoms of abusive head trauma are caused by accidental short falls or other medical causes,” SJC Chief Justice Ralph Gants wrote. “We are simply recognizing that there is a vigorous debate on this subject.”

Although Millien was convicted of assaulting his baby, the SJC threw out the verdicts and ordered a new trial because his attorney didn’t put one expert on the stand.

Instead, the jury heard the testimony of state experts — including Dr. Alice Newton, whose shaken-baby diagnoses have been challenged by doctors and lawyers in the past.

Middlesex District Attorney Marian T. Ryan’s office isn’t sure if it’s going to go ahead and retry the case. If she didn’t, who could blame her?

The office dropped charges in the infamous case of Aisling Brady McCarthy — an Irish nanny who sat behind bars for more than two years after she was accused of shaking a baby to death. Ryan’s office also dropped charges against Geoffrey Wilson, a Massachusetts Institute of Technology employee who was accused of killing his own son.

In each case, the shaken -baby science was taken to task, and each time the state realized it couldn’t meet its burden. Yesterday, Gants went an extra step and gave attorneys heaps of information to use if and when they are defending a shaken-baby case.

In one footnote alone, Gants spent 400 words describing numerous scholarly articles that cast doubt on the diagnosis.

“A defense expert could have assisted a competent defense attorney in mounting a significant challenge at trial on cross-examination by identifying the methodological shortcomings of the studies they cited,” Gants wrote.

Other attorneys who have successfully staved off a shaken-baby conviction saw the ruling as significant.

“The fact that the court is saying that there is a huge debate in the medical and legal communities on this theory of shaken baby syndrome is important,” said Melinda Thompson, one of McCarthy’s attorneys.

And the debate is far from over.

The SJC is still mulling the case of Derick Epps, who in 2007 was convicted of assault and battery on a child via another shaken-baby diagnosis.

He’s supported by briefs filed by civil rights groups, public defenders and doctors.

The commonwealth, meanwhile, has no one in its corner.