Attorneys like Paul Ksicinski who have successfully fought off shaken-baby convictions know the critical importance of a new decision this month from Supreme Judicial Court of Massachusetts. Paul Ksicinski knows it is not enough to hit the target in such cases; you must hit the bullseye.
Chief Justice Ralph Gants from the Supreme Judicial Court of Massachusetts just ruled that another SBS case in Massachusetts must be re-tried, because evidence contrary to the supposed “science” behind SBS was not presented at the trial. Judge Gants even went beyond just issuing a ruling to provide legal advice to attorneys seeking to represent their clients against SBS claims. 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.
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 (it should be noted that any attorney who has tried to find an expert in this area knows it is EXTREMELY DIFFICULT) 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.
An attorney faced with the trial of such a case realizes that the death of a baby is a tragedy. If there is a suspicion of criminal actions being involved in the death, they agree those circumstances should be investigated.
Paul Ksicinski demands that that such an investigation be based on facts, and valid and reliable science not just emotional reaction to the death of a baby. And that emotional reaction is not limited to family members but can be shared by professionals. For instance, Dr. Alice Newton, Medical Director of the Child Protection Program at Massachusetts General Hospital has wrongly convicted parents of Child Abuse. As these types of convictions are over-turned across the country, will doctors be held accountable for destroying families?
As the medical profession continues to debate the merits of “Shaken baby syndrome” (SBS), the American judicial system is increasingly determining that the evidence against SBS is strong enough to prevent convictions in a court of law, where the standard is “reasonable doubt.”
“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.”
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.