Supreme Judicial Court of Massachusetts, Middlesex
December 7, 2015.
Indictments found and returned in the Superior Court
Department on December 23, 2009.
cases were tried before S. Jane Haggerty, J., and a
motion for a new trial, filed on June 24, 2013, was heard by
Hirsch for the defendant.
Cimini, Assistant District Attorney, for the Commonwealth.
following submitted briefs for amici curiae:
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.
Matthew R. Segal, Dennis Shedd, & Chauncey B. Wood for
Committee for Public Counsel Services & others.
Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines,
N.E.3d 809] 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), in violation of G. L. c. 265, §
13J ( b ), and assault and battery on a child
causing bodily injury (fractured vertebrae), in violation of
G. L. c. 265, § 13J ( a ).
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
[50 N.E.3d 810] 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." See Commonwealth v.
Saferian, 366 Mass. 89, 96, 315 N.E.2d 878
Evidence at trial.
summarize the evidence presented at trial. The defendant was
in his early twenties when his girl friend, Amanda Leavitt,
told him that she was pregnant. He urged her to "
keep" the baby, and accompanied her to medical
appointments during the pregnancy. Although he was
disappointed when he learned that Leavitt was going to have
twin girls, preferring a boy, he was happy when the girls,
Jahanna and Taeja, were born on March 27, 2009, and was with
Leavitt in the operating room when she had her cesarean
the babies were born, Leavitt moved to the home of her
mother, Dianna Gagnon, who lived with her boy friend and
Leavitt's teenaged siblings in Woburn. The defendant
visited nearly every day and generally stayed overnight after
the twins were born. The defendant shared the
responsibilities of child care with Leavitt; he fed, changed,
and played with the twins daily. When the twins were
approximately five months old, Leavitt found a job at a
restaurant, working several nights a week from between 4 and
5 p.m. to between 9 p.m. and midnight, and during that time
the defendant, Leavitt's mother, or the defendant's
mother or sister cared for the twins. In September, 2009,
Leavitt and the twins moved to a townhouse apartment in
Woburn, and the defendant lived there with them.
defendant was inexperienced in caring for babies, but he
sought advice regarding child care from Leavitt and Gagnon.
No witness ever saw him spank or abuse the twins, but at
times, he patted the twins too roughly while trying to burp
them and on a few occasions walked away from the changing
table while he was changing them. He was responsive to
criticism, however, when other caretakers instructed him how
better to care for the twins. Jahanna was the fussier baby,
and the defendant was more comfortable caring for Taeja than
he was caring for Jahanna. But when Jahanna was colicky, the
defendant sometimes would pick her up and walk around and
talk with her. Gagnon described the defendant as a man of
quiet demeanor whom she never saw angry and never heard
shout, and whom she never saw hit or grab anyone.
were no complications regarding the twins' birth, but
Jahanna soon developed various health problems. She was
" cranky," cried often, and was difficult to feed.
When Jahanna was approximately two months old, her primary
care pediatrician, Dr. Elizabeth Burba, placed her on a more
gentle formula. Nine days later, Leavitt telephoned the
doctor's office and reported that
Jahanna had vomited blood. She was referred to the emergency
room at Winchester Hospital, where she was diagnosed with
gastro-esophageal reflux and was prescribed antacid
medication. Dr. Burba noted at Jahanna's three-month
" well visit" that she was " taking her feeds
now" and gaining weight. Leavitt discontinued using the
medication after " a couple of months" because
Jahanna was doing well. When Jahanna was approximately four
months old, Leavitt noticed that one [50 N.E.3d 811] of her
legs " would kind of be limp." She testified,
" I would hold her up and one leg would be touching the
ground and one would be in the air, like a bend in the
knee." Leavitt took Jahanna to Dr. Burba's office,
where she was diagnosed with a " hip click." She
was given a hip ultrasound, which was normal. On September
29, 2009, Leavitt reported that Jahanna had again vomited
blood, and returned to the Winchester Hospital emergency
room, where she was given an abdominal x-ray, which was
normal, and once again was prescribed the antacid medication.
At her six-month " well-visit" on October 2,
Jahanna was " no longer fussy or irritable," and
her " gross motor development examination," which
showed that she could roll over from side to side, move
objects from one hand to another, and sit up with a bit of
support, was normal for her age. During her care of Jahanna,
Dr. Burba saw no sign that Jahanna had been abused.
October 20, 2009, Leavitt was at work and the defendant was
alone in her Woburn apartment caring for the twins. At
approximately 8:45 p.m., Robert Jeffrey, who lived next door
with his wife, Eileen, knocked on the door to Leavitt's
apartment, which was slightly ajar, and asked the defendant
for a cigarette. He saw the defendant sitting on the couch in
the living room feeding Jahanna, with Taeja sitting in "
a little bouncy thing" on the floor. Their demeanor
appeared " good" ; Jahanna " was just whining
like she was hungry." The defendant said he did not have
any cigarettes, so Robert drove to a nearby gasoline station,
approximately four minutes away. When Robert parked in front
of his apartment, about ten minutes later, the defendant ran
over, looking " [v]ery shooken up," and asked to
use Robert's telephone to call his girl friend because
something had happened to one of the babies. Eileen, who was
a certified nurse assistant, was walking towards Robert from
the steps of the Jeffrey home when Robert returned. She heard
the defendant say that the baby fell,
and when Eileen asked if she was okay, the defendant said he
did not know. She then immediately walked into the
defendant's apartment and saw Jahanna on the couch.
Jahanna was pale and unresponsive, and her eyes were closed.
Robert then drove the defendant and Jahanna to the emergency
room at Winchester Hospital.
trial, Eileen testified that she was sitting at her computer
on the first floor of her apartment when Robert left to find
cigarettes, and she went outside when she heard him
returning. Although the walls between her apartment and the
Leavitt apartment were thin, and she could often hear noises
coming from the Leavitt apartment, Eileen heard no banging or
other noise during the time that Robert was gone.
arrived in the emergency room of Winchester Hospital at
approximately 9:18 p.m. Dr. Atima Delaney, the attending
pediatric physician in the emergency room who treated
Jahanna, obtained a medical history of Jahanna from the
defendant that evening. Dr. Delaney described the defendant
as " worried and quiet." The defendant told Dr.
Delaney that he had been sitting on the couch while Jahanna
had been lying on the couch. When he turned around to grab a
bottle, Jahanna fell off the couch. When he turned back, he
saw the baby lying on her back on the hardwood floor. She
immediately vomited, and then became unconscious.
N.E.3d 812] A computerized tomography (CT) scan taken at
Winchester Hospital revealed a large subdural hematoma (a
collection of blood between the dura and the brain),
brain swelling, and a comminuted skull fracture located in
the left parietal skull. The CT scan also showed a "
midline shift," meaning that one side of the brain had
started to push over to the other side because of the brain
swelling. Because of the severity of Jahanna's injuries,
she was transferred to Children's Hospital, where a
pediatric neurosurgeon, Dr. Mark Proctor, performed emergency
brain surgery. When he opened the dura inside the skull to
relieve the brain swelling, the fluid, including clotted
blood, was under such high pressure that it " squirted
up about one and a half to two feet." The presence of
clotted blood revealed that the injury had happened "
within hours." Dr. Proctor did not see extensive injury
to the brain itself,
but saw that the brain was swelling to such an extent that he
needed to remove more bone to relieve the pressure. He
located the torn blood vessel that was the cause of the
hemorrhage, which was in the subdural space towards the top
of the head, to the left of the midline.
afternoon of October 21, Inspector Timothy Donovan of the
Woburn police department interviewed the defendant at
Children's Hospital. The defendant recounted essentially
what he had told Dr. Delaney, but with some additional
details. He said he was sitting in the middle of a two-seat
loveseat, watching a baseball game on the television, and was
preparing to feed Jahanna. He placed her to his right on the
loveseat, facing the back of the couch. He reached back to
grab a bottle and saw Jahanna fall off the couch. When he
picked her up from the floor, her eyelids were closed, she
was not crying, and her head was " bobbling." He
saw that she was breathing, but unresponsive, so he took off
her pajamas, brought her upstairs to the bathroom, placed her
in her " bathinet," and sprinkled water on her
face. When he saw that she was still unresponsive, he put her
pajamas back on, and ran next door to speak to the Jeffreys.
When the inspector told him that Jahanna's injuries were
consistent with her having been shaken, the defendant replied
that the only shaking he ever did was bouncing Jahanna on his
knee. The inspector later measured the distance from the
floor to the seat of the couch and determined that it was
seventeen and one-half inches tall.
defendant spoke that same day with Donna Hughes, an
investigator with the Department of Children and Families,
and told her essentially what he had told Dr. Delaney and
Inspector Donovan, but with one important additional detail:
he said that, when Jahanna fell, she fell backwards and her
head hit the floor.
examination by a pediatric ophthalmologist, Dr. Iason
Mantagos, on October 22 found no sign of direct trauma to the
eyes. But he found in both eyes extensive hemorrhages (blood
spots) in all four quadrants of the retina (the multiple
layers of cells that include the photo receptors that are
stimulated by light and create impulses that are sent to the
brain), from the center to the periphery of the retina,
including on the optic nerve (which sends information from
the retina to the brain) and in the macular (the area of the
eye responsible for sharpest vision). Dr. Mantagos [50 N.E.3d
813] testified that " [t]his finding is consistent with
trauma and the force that's required to cause such
bleeding is extensive." In describing the different
kinds of trauma that can produce retinal
hemorrhages, he included the extreme shaking of an infant,
which causes the contents of the eyeball to move rapidly back
and forth at different speeds, which in turn causes the
vitrious (the jelly that fills the eye) to separate from the
retina and put traction on the blood vessels. Claiming
reliance on the medical literature in peer-reviewed journals,
he opined on redirect examination that the retinal
hemorrhaging he found would be consistent with a fall only if
it were from the highest point of a swing to a cement floor,
a fall down a flight of stairs in a stroller, or a fall from
a height of one or two stories and hitting the ground.
Alice Newton was the medical director of the Child Protection
Program at Children's Hospital, and has written
extensively on shaken baby syndrome, which she testified was
now called abusive head trauma. She examined Jahanna on
October 21 to determine whether Jahanna's injuries were
caused by child abuse. Dr. Newton testified that, " when
one refers to shaken baby syndrome, one refers to a
combination of findings" : bleeding around the brain
(subdural hematoma), brain injury, and retinal
hemorrhages. She testified that Jahanna displayed
all three of these injuries, and she described how shaking
can cause each of them. She opined to a " reasonable
degree of medical certainty" that the cause of
Jahanna's subdural hematoma, brain injury, and retinal
hemorrhages was that Jahanna was " violently
shaken." She stated as the basis of her opinion that the
constellation of injuries sustained by Jahanna fit the
definition of shaken baby
syndrome and " do not have any other medical
explanation." She declared that Jahanna " did not
have some type of massive accidental head injury" and
that " the amount of force in a short household fall is
not very significant." Dr. Newton also offered a motive
for violently shaking a baby, explaining that when a
caretaker is unable to handle a crying infant, he or she
sometimes shakes the infant as a mode of discipline or simply
out of frustration.
further testified that in addition to the brain bleeding,
brain injuries, and retinal hemorrhages, Jahanna was
diagnosed with fractures of multiple ribs and of the tibia of
her right leg, both of which were in [50 N.E.3d 814] an
advanced state of healing and were " probably at least a
month old." Dr. Newton also noted that Jahanna had
compression fractures of thoracic vertebrae eleven and
twelve. She said she could not opine when the vertebral
fractures occurred, because they do not heal with new bone
formation like ribs and the tibia, but she did offer the
opinion that these fractures were caused by " some type
of crushing force," which could include the extreme
flexion caused by violent shaking.
Newton opined to a reasonable degree of medical certainty
that, of all the injuries suffered by Jahanna, " the
only injury ... that could possibly be related" to a
short fall was the skull fracture, but that this was "
very unlikely," because short falls are more likely to
result in linear, rather than comminuted, fractures. She
testified that the skull fracture required " some type
of blow," such as " slamming the child against
something."  She stated that one could not
determine when a skull fracture occurred simply by looking at
the CT scan because it heals in the same way that vertebrae
heal, but she felt strongly that the skull fracture was
" acute, although that's a little bit harder to be
defendant called three witnesses in his defense: his sister,
his mother, and himself. His sister testified that she never
saw the defendant shake, spank, or throw Jahanna, and never
saw him compress Jahanna's ribs. His mother said little
regarding the defendant's care of the twins because, when
the twins were at her house, she or the defendant's
sister would feed and change them, not the defendant. The
defendant's testimony was ...