EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, June 8, 2016

SJC of Massachusetts Finds Ineffective Assistance Based on Failure to Challenge Shaken Baby Syndrome Diagnosis

On Friday, the Supreme Judicial Court of Massachusetts granted a new trial to Oswelt Millien, finding in Commonwealth v. Millien, 2015 WL 10944994  (Mass. 2016), that he received the ineffective assistance of counsel. 

On the evening of October 20, 2009, the defendant's six month old daughter, Jahanna, was rushed to the emergency room, unconscious and unresponsive. She was diagnosed with traumatic brain injury, and scans of her brain showed retinal hemorrhages, subdural hematoma, and brain swelling, the three symptoms known as “the triad” associated with shaken baby syndrome. The defendant, who was the baby's sole caretaker when she became unconscious, claimed that Jahanna accidentally fell backwards from the couch where she was sitting and landed on the wooden floor. After Jahanna's physicians concluded that her brain injuries could not have been caused by an accidental fall from the couch but were instead caused by a violent shaking, the defendant was charged and later convicted by a jury of assault and battery on a child causing substantial bodily injury (head injuries)...and assault and battery on a child causing bodily injury (fractured vertebrae).

So, what was the basis for the ineffective assistance of counsel claim? According to the court,

There 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 injury, and as to whether these symptoms can sometimes be caused by a short accidental fall. At trial, the jury heard only one side of this debate, because the defense attorney did not retain a medical expert to offer opinion testimony or to assist him in cross-examining the Commonwealth's medical experts. We conclude that, in these circumstances, where the prosecution's case rested almost entirely on medical expert testimony, the defendant was denied his constitutional right to the effective assistance of counsel because, by not providing the jury with the other side of this debate, his attorney's poor performance “likely deprived the defendant of an otherwise available, substantial ground of defence.”

The defense was able to secure a new trial after a hearing during which it

offered the judge a glimpse of the scientific evidence that could have been presented at trial through the testimony of Dr. Ronald Uscinski, a board-certified clinical neurosurgeon. Dr. Uscinski testified to opinions that challenged the opinions of the Commonwealth's experts who testified at trial and offered an alternative scientific explanation for Jahanna's injuries consistent with an accidental fall.

First, Dr. Uscinski* called into question whether shaken baby syndrome is a valid and scientifically supported medical diagnosis. He testified to the weaknesses of the methodologies employed by many of the foundational shaken baby syndrome  studies, and stated that numerous studies have shown that humans cannot shake babies hard enough to cause bleeding in the subdural space. He explained that no one knows the minimum force required to cause subdural bleeding in a baby, but it is known that “[t]here's a range, and we don't come anywhere near that range by shaking.” He pointed to research showing that if an infant were shaken so violently to produce the level of force needed to cause the triad of symptoms of shaken baby syndrome, the infant's neck would not be able to withstand the force and would suffer some sort of injury. He concluded that shaken baby syndrome is a hypothesis that has “never been proved” and is “scientifically ... not plausible.” He also opined to a reasonable degree of medical certainty that shaking an infant cannot cause the “triad of injuries” associated with shaken baby syndrome (subdural hematoma, brain swelling, and retinal hemorrhages).

Second, Dr. Uscinski put forth an alternative theory of the cause of Jahanna's injuries. Dr. Uscinski opined to a reasonable degree of medical certainty that a skull fracture of the type Jahanna sustained can be caused by a fall of seventeen and one-half inches onto a hard surface. He explained that a fracture can result from an impact in another area of the head, caused by one part of the bone being pushed in and other parts of the bone being pushed outward. He explained that the parietal bone is “quite thin in [the area of compression] and will be susceptible to being cracked if bent that way, and that resulted in that parietal fracture.” He also stated that the impact from the fall could have caused the tearing of the blood vessels and the development of subdural bleeding. The subdural bleeding could then have caused elevated intracranial pressure, the presence of which was evident from the increased retinal venous pressure shown on Jahanna's CT scan. In his opinion, this elevated intracranial pressure in turn caused the retinal hemorrhages. Based on this scientific theory, Dr. Uscinski testified that a short fall of seventeen and one-half inches onto a hard surface could account for the head injuries that Jahanna sustained.


*Dr. Uscinski was one of the experts consulted for the documentary, "The Syndrome," which argues "that 'Shaken Baby Syndrome,' a child abuse theory used in hundreds of U.S. prosecutions each year, is not scientifically valid.



| Permalink


What I continue to find odd is the way that SBS is so contradictory to the way we treat head injuries in other aspects of life. The NFL has been undergoing significant and costly litigation over head injuries. Recently, my teenage niece was playing soccer on her school team and she got knocked down by another player fighting for the ball. She was slow getting up and complained of being dizzy so they sent her to the doctor and the doctor said she had a mild concussion and the school refused to let her play for the rest of the season, which had just started. Yet a child falls off a couch and magically it turns into a case of child abuse because falling down wouldn't hurt a flea.

Protecting children is important but I feel that sometimes our society is so obsessed with protecting children that we find evil where none exists just so we can tell ourselves we are saviors. .

Posted by: Daniel | Jun 8, 2016 7:54:14 PM

Post a comment