Middlesex County prosecutors had information that could have helped Aisling Brady McCarthy, the nanny accused of killing the 1-year-old she was caring for. But instead of sharing it, as they should have, they kept it to themselves for more than a year while she remained in jail.
In April, a Superior Court judge found that the information — that the baby’s injuries could have had another cause —
But given allegations of questionable conduct by Middlesex prosecutors in the case of Nathan Wilson — the strikingly similar case of a Malden baby whose father was charged with violently shaking him to death — it bears a hard look now. Like McCarthy, Geoffrey Wilson eventually had the charges against him dropped after a medical examiner reversed a homicide finding.
McCarthy was accused of killing Rehma Sabir in January 2013. She was charged after Alice Newton, a prosecution medical expert, concluded (as she did in the Wilson case) that the 1-year-old had suffered injuries, including severe bleeding in the back of the eyes, which indicated abusive head trauma, also known as shaken baby syndrome.
After McCarthy was jailed without bail, prosecutors sought the opinion of Dr. Alex Levin, an eye specialist, on whether the injuries to the baby’s eyes indicated abuse. In a series of phone calls starting in August 2013, Levin expressed hesitation about coming to that conclusion. He told prosecutors he had found less severe retinal hemorrhaging, and repeatedly raised the possibility that the baby’s injuries might have been caused by something other than abuse — an immune disorder called Job Syndrome — according to a court document.
Ethics rules require that prosecutors share information like that with the defense in a timely manner. District attorneys hold many more cards than defense attorneys in criminal cases, and they’re held to very high standards. They’re supposed to make their cases on the merits, and not by sitting on evidence that could benefit the accused.
“Their job is not just to win,” said David Rossman, a professor of law at Boston University who was briefly a prosecutor in Middlesex County. “Their job is to do justice, and that means even if they are morally certain a person did it, and there is a piece of evidence in their hands that in the eyes of a reasonable, objective person would make it seem less certain the defendant is guilty, they’ve got to turn it over.”
That obligation was there, even if prosecutors disagreed with the doctor. Even if Levin had been an unhinged quack, and not, as he is, a nationally known expert who has regularly delivered findings of abuse in shaken baby cases.
Not only must exculpatory evidence be shared, it must be shared promptly.
“Immediacy is not required, but the law demands some level of promptness,” said Daniel Medwed, professor of law at Northeastern University. “More to the point . . . we should expect and demand immediate compliance.”
The best prosecutors would have shared that information right after the first phone call. But, prosecutors on the McCarthy case kept it to themselves: not only after that first phone call with Levin, but through several more over the course of a year. This even after defense attorneys, who learned of Levin’s work by happenstance, asked for it repeatedly.
It’s hard to imagine prosecutors could have been unaware of the information’s significance. Those same assistant district attorneys were working on the Wilson case. A few weeks after their first call with Levin, Geoffrey Wilson’s attorney presented them with evidence suggesting that Nathan Wilson’s death could have been caused by a genetic defect that made his blood vessels prone to rupture.
In a September 2013 e-mail, the medical examiner told prosecutor Katharine Folger that he wanted to change his homicide finding about the Wilson baby. (He did not do so officially until Aug. 1, 2014, and complained to Folger that the Middlesex District Attorney’s office had attempted to pressure him into sticking with his original homicide finding, according to the examiner’s case notes, obtained by the Globe.)
Folger had been in on some of the calls with Levin, too. Yet, even as the Wilson case was unraveling, Folger and other prosecutors didn’t share Levin’s speculation about the immune disorder with McCarthy’s defense attorneys.
Nor did they share the information after a large crack appeared in their case against the nanny: In December 2013, a judge threw out an assault and battery charge against McCarthy, finding insufficient evidence to support the charge that she caused the bone fractures central to prosecution claims that she had abused the baby.
Instead, after finding a reference to him in files from the medical examiner, McCarthy’s attorneys learned Levin had been consulted in January 2014. They repeatedly requested Levin’s report, notes, and any exculpatory evidence. District Attorney Marian Ryan said prosecutors revealed in August that Levin had considered an alternative cause of death. But they did not turn over the more extensive — and more clearly exculpatory — notes from his conversations with prosecutors until January 2015, after Judge Maureen Hogan ordered them to do so. It had been 16 months since the first phone call with Levin.
They should have done it sooner, the judge said.
“Prosecutors had an obligation to turn over to the defendant information provided to them by Dr. Levin which was exculpatory, or . . . arguably exculpatory, prior to the time that they did,” Hogan said in an April 22 hearing.
The judge is right, District Attorney Marian Ryan concedes.
“We take our responsibility to produce all exculpatory evidence very seriously,” Ryan said in a written statement. “While there were several extenuating circumstances which delayed the production of Dr. Levin’s final written report, we acknowledge and agree that the information should have been provided to the defendant sooner.”
McCarthy had her bail reduced and was released this past May, after her defense team presented the medical examiner with reports from nine outside specialists challenging the homicide finding, prompting a complete review of the post-mortem. The Levin information almost certainly would have sped up that process, Thompson said.
Charges against McCarthy were dropped Aug. 31, after the medical examiner changed the baby’s cause of death from homicide to “undetermined.” McCarthy, who was in the country illegally, was immediately deported back to Ireland.
It’s impossible to say for sure what would have happened if McCarthy’s attorneys had had the Levin information sooner. Judge Hogan found that, while prosecutors failed to fulfil their obligations, their actions did not constitute grounds for the case to be dismissed, or harm McCarthy’s chances of a fair trial.
But McCarthy’s attorneys are convinced she would not have sat in prison for more than two years if prosecutors had done the right thing.
“Their own expert was questioning the diagnosis of abuse,” said attorney Melinda Thompson. “Had the medical examiner been aware of this, her analysis could have been different early on.”
Even for those convinced McCarthy murdered Rehma Sabir, there is plenty here to be concerned about when it comes to Marian Ryan’s office. This is not how prosecutors should be bringing anybody to justice. The integrity of the entire system depends on fairness towards all defendants, regardless of guilt of innocence.
“Rules like those related to discovery are designed to make the playing field more even,” said Medwed, the Northeastern University professor. “Flouting those rules leaves defendants playing with one hand tied behind their backs.”
Ryan and her prosecutors know this. But maybe they need a reminder: Sometimes, justice and winning aren’t the same thing.
Columnist Yvonne Abraham can be reached at firstname.lastname@example.org.