CALL TO ACTION: Seeking Contributions to Nicholas Newbold's Legal Defense Fund in His "Shaken Baby Syndrome" Retrial

Shaken Baby Syndrome (SBS) is the flawed theory that an infant with a traditional triad of symptoms -- (1) retinal bleeding; (2) subdural hematoma; and (3) brain swelling -- must have been abusively shaken. The problem with SBS is that the emperor has no clothes, leading a New Jersey judge to recently declare that a SBS diagnosis is "akin to 'junk science.'" Tragically, faulty SBS diagnoses have led to many wrongful convictions of parents grieving the losses of their infants, with many of these convictions coming in cases in which the parent had no history of violence at all. Typically, in these cases, it was not abusive shaking, but instead pregnancy/birthing issues or short falls that explain the infant dying. And this was exactly the case with Nicholas Newbold, who recently won a new trial (Download Ruling on Habeas Corpus) after a faulty SBS conviction. Stunningly, the prosecutor plans to prosecute Newbold again, forcing him to relive this tragedy for a third time. I have agreed to assist on the case on a pro bono (free) basis, but I am sharing his story and his legal fundraiser here because he has significant legal fees for his impending second trial and could use help.

Here is the link to Newbold's legal fundraiser:

https://fundrazr.com/NickNewbold?ref=tw_1BYUQ8_ab_5tIsZrhfw6g5tIsZrhfw6g.

And here are the details of the case:

Nicholas Newbold and Juliana Linn were the parents of two month-old Jude. After Jude's death, Newbold was prosecuted under the theory that Jude died from SBS. At trial, nobody testified that Newbold had any history of violence or abusive behavior. Indeed, Linn testified to Newbold "being a good parent and never harming the child."

Instead, it was the traditional triad of symptoms that led the State's experts to believe that Jude died from SBS. This is where many of the typical red flags come into play. The State's forensic pathologist, Dr. Eugene Carpenter, performed the autopsy on Jude and concluded that she died from SBS.

Dr. Carpenter acknowledged there was no injury to Jude’s neck musculature, no cervical spine fracture or spinal cord dislocation, no inflammation found in the tissues of the neck, and no injury to the larynx, however, Dr. Carpenter still believed Jude’s head was violently shaken.

Simply put, Dr. Carpenter's diagnosis is based upon outdated science. In 2015, biomechanical engineer Chris Van Ee did the landmark study on Shaken Baby Syndrome by using crash test dummies (pg. 134). And his conclusion, and the conclusion of many other leading experts, is that a person cannot generate enough force through abusive shaking to cause the traditional triad of SBS symptoms without leaving significant injuries to other vulnerable areas of the body, such as the neck.

As Van Ee noted in his expert report in the Michelle Heale case, "Based on current data, the hypothesis that shaking would result in the direct tearing of cranial vessels and no significant injury to other more vulnerable areas of the body such as the torso or neck, cannot be supported." (pg. 130)

And yet, "Dr. Carpenter testified Jude had no external injuries except that the soft spot of her head was a little swollen. Dr. Carpenter said it is common in shaken baby cases for the infant not to exhibit external injuries."

It would be bad enough if Newbold were wrongfully convicted solely based upon junk science presented by the State's experts. What's worse for Newbold is that he was failed by his own attorney. That attorney failed to disclose two critical things to the defense medical expert: (1)  three days before Jude was admitted to the hospital, Jude's grandmother said that Judge had "asymmetric pupils;" and (2) Jude's mother Juliana Linn was in a significant car accident while in her third trimester.

Without this critical information, the defense expert, pediatric neurologist Ronald Gabriel, testified at the trial that “there’s no question” the cause of Jude’s injuries was physical abuse. The injuries were non-accidental and inflicted by someone."

Subsequently, when this critical information was given to Dr. Gabriel by Newbold's appellate attorney, he testified at the habeas hearing that Jude's asymmetric pupils were a “golden diagnostic signal” to a neurologist and "conclude[d] that based upon the asymmetrical pupils that this was a progressive case of hydrocephalus." Specifically,

Dr. Gabriel was first made aware of the pupil asymmetry and that Jude’s Mother was involved in a car accident when she was pregnant in her third trimester with Jude by Petitioner’s appellate attorney. The car accident is the likely cause of the placenta infarction and possible explanation of the child's growth retardation and why the baby's brain was abnormal from the beginning. Dr. Gabriel stated receipt of the information of the car accident and pupil asymmetry would have affected his testimony as to the cause of the brain injuries, the brain hemorrhaging, and cause of Jude’s death.*

There were many other issues with Newbold's trial, as laid out in the habeas ruling granting Newbold a new trial (Download Ruling on Habeas Corpus), but defense counsel's error in failing to provide Dr. Gabriel with critical information was at the heart of the finding that Newbold's trial attorney was constitutionally deficient. Moreover, the court easily held that this deficiency was prejudicial because 

This was a circumstantial evidence case of a deceased child with no direct evidence of anyone inflicting injuries to Jude and no admissions. There were no external injuries consistent with abuse, and the cause of the internal injuries was not limited to abuse. The internal injuries could be explained as non-abusive, as demonstrated at the evidentiary hearing.

Given these facts, it's crazy that the prosecutor plans to bring Newbold back to trial. Hopefully, given the rising skepticism surrounding SBS, the prosecutor will reconsider that decision.

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*The Shawn Brown case is a similar case in which a father was wrongfully convicted of the death of his child based on SBS when a pupil asymmetry pointed to another cause of death.

-CM