WOBURN — A lawyer for Aisling Brady McCarthy, the nanny accused of fatally beating a 1-year-old in her care, argued Tuesday that prosecutors presented tainted evidence to the grand jury that indicted McCarthy of murder, and that the case should be dropped.
Prosecutors “knowingly presented false and deceptive evidence to the grand jury in order to obtain an indictment,” said defense lawyer Melinda Thompson, adding that 90 percent of the evidence was inadmissible.
“In this grand jury presentation, the Commonwealth ignored the law,” she said.
Patrick Fitzgerald, an assistant district attorney for Middlesex County, rejected the assertion, saying the evidence was accurate and relevant.
After a lengthy hearing, Middlesex Superior Court Judge S. Jane Haggerty said she would take the matter under advisement, but did not say when she would issue a ruling on whether to dismiss the case.
McCarthy is accused of killing Rehma Sabir in January at the child’s Cambridge home. Rehma was found unresponsive in her crib on Jan. 14, and died two days later. McCarthy was arrested a few days after the child’s death, and in April was indicted on first-degree murder charges.
Authorities said Rehma’s injuries were consistent with violent shaking and multiple blows to the head. Prosecutors say the child died from massive head injuries while in McCarthy’s exclusive care. But Thompson has said that her client never harmed the girl.
“She is an innocent person in jail,” Thompson said.
Thompson said prosecutors allowed witnesses to offer testimony that went beyond the scope of what caused the child’s fatal injuries, comments that influenced the jury against McCarthy.
Evidence that Rehma had sustained bone fractures in her leg between two weeks and two months before her death, for instance, “made it look like my client was abusing the child,” she said.
“The Commonwealth cannot put in evidence of long bone fractures unless they can prove the defendant caused them,” she said. “The case law doesn’t permit it.”
The Sabir family traveled extensively in November and December without McCarthy, Thompson said.
But prosecutors said jurors deserved to know about the preexisting injuries in weighing whether there was probable cause to charge McCarthy with murder.
“It was important for the grand jury to have that information,” Fitzgerald said. “The totality of [Rehma’s] medical condition was being considered.”
Fitzgerald also noted that the bone fractures could point to the involvement of another caretaker and the judge noted that the evidence could be seen as hurting the prosecution’s case.
Thompson also objected to the inclusion of statements from the family’s upstairs neighbor, who recalled the child crying so intensely that it sounded as if she had fallen from a height.
“How can an upstairs neighbor decide whether crying is benign or for maltreatment?” Thompson asked.
Prosecutors said the testimony of the neighbor, who knocked on the family’s door the day of the alleged attack after hearing the child’s cries, was highly relevant because of the timing.
Thompson also accused Rehma’s mother, Nada Siddiqui, of lying to the grand jury when she stated that Rehma had never fallen off a bed. She later acknowledged that Rehma did fall while on a trip to Pakistan in December.
Fitzgerald described the fall as minor, and said the child did not hit her head. When Siddiqui recalled the fall, the information was presented to the grand jury, he said.
McCarthy, a native of Ireland living in the country illegally, sat in the front of the courtroom beside her lawyer during Tuesday’s hearing. When prosecutors discussed the child’s loud cries, she shook her head slowly side to side. A bit later, a bailiff brought her a handful of tissues.
The next pretrial hearing is scheduled for Oct. 17.Peter Schworm can be reached at firstname.lastname@example.org. Follow him on Twitter @globepete.