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SJC orders new trial in ‘shaken baby’ case

The state’s highest court on Friday ordered a new trial for a man convicted of severely injuring his infant daughter, in the strongest affirmation yet from the Massachusetts legal system that the medical community is divided over the validity of shaken baby syndrome diagnoses.

The unanimous ruling was a victory for Oswelt Millien, formerly of Woburn, who was convicted in Middlesex Superior Court in 2010 of violently shaking his daughter. She suffered nonfatal head and neck injuries while he was her sole caretaker in the family home.

Millien, who was in his 20s at the time of his conviction, has completed a five-year prison term.


In a 45-page opinion, Chief Justice Ralph D. Gants wrote Friday for the Supreme Judicial Court that Millien’s trial lawyer should have consulted with medical experts in order to properly counter prosecution witnesses who testified that the child was a victim of shaken baby syndrome. The trial lawyer was not identified in the ruling.

“There is a heated debate in the medical community” about whether symptoms of the syndrome could actually be caused by an accidental fall, Gants wrote. “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.”

Millien’s trial attorney said in court papers that he was retained by his client’s father and the father refused to pay for an expert. However, Gants wrote that the lawyer should have requested public funds to pay for an expert, because Millien was found to be indigent.

His appellate lawyer, David B. Hirsch, said Friday that both he and Millien are “thrilled” by the ruling.

“They are entitled to try him again,’’ Hirsch said of prosecutors. “What they can’t do is punish him again” by putting him back in prison. “It really wouldn’t accomplish anything.’’


A spokeswoman for Middlesex District Attorney Marian T. Ryan said only that prosecutors were reviewing the decision and “making a determination as to next steps.”

Ryan’s office previously dropped murder charges in two other shaken baby cases — one against an Irish nanny, Aisling Brady McCarthy, and another involving former Massachusetts Institute of Technology employee Geoffrey Wilson.

The charges in both cases were dropped after the state medical examiner’s office said it could no longer stand by its prior findings that the deaths were the result of shaken baby syndrome.

McCarthy’s lawyer, Melinda Thompson, hailed Gants’s opinion in a phone interview.

The ruling, Thompson said, acknowledges that a legitimate debate is ongoing in the medical community and “should be before a jury. I see that as huge.”

“There’s no other case in criminal law that I can think of where one [prosecution] expert says what happened, where it happened, and how it happened and ties it up in a bow, so to speak,” she said. “Before, that wasn’t challenged.”

Thompson’s comments were echoed by Peter T. Elikann, a defense attorney who chairs the Massachusetts Bar Association’s Criminal Justice section.

“This is simply a clarion call to lawyers that you can’t leave this medical testimony absolutely unchallenged without, at the very least, presenting another version of what could have happened,” he said. “Otherwise, the jury is really left without the complete picture.”

He added, “It’s almost like there was a boxing match where one guy entered the ring with his hands tied behind his back, while the other guy punched away.”


Gants’s ruling is not without precedent nationwide. He noted that judges in Michigan and Utah have issued similar decisions in recent years and said the debate over the science remains active.

“By vacating the defendant’s convictions in this case and ordering a new trial, we do not claim to have resolved the ongoing medical controversy as to how often the triad of symptoms of abusive head trauma are caused by accidental short falls or other medical causes,’’ Gants wrote.

Instead, he said, the ruling is a notification to attorneys that “vigorous debate on this subject [is ongoing], that arguments are being made on both sides with support in the scientific and medical literature, that this debate is evolving.’’

The question in shaken baby cases is whether infants who suffer fatal or severe head injuries have been harmed by caretakers, or if factors such as accidental falls or a child’s prior medical history are to blame.

While defense lawyers contend that a growing number of experts are questioning the science around shaken baby syndrome, not everyone is skeptical.

At least one prominent physicians group, the American Academy of Pediatrics, believes the syndrome, also known as abusive head trauma, is a legitimate problem that afflicts at least 1,200 infants nationwide each year, according to a statement on its website.

“Exhausted parents and other caregivers may become frustrated and angry and ‘lose it’ when infants in their care cry inconsolably,” the statement says.


“Although there is still much to learn about the mechanisms and precise pathophysiology of injury and death in abusive head trauma, the position that shaking cannot harm an infant, which is held by only a few vocal advocates, has not been scientifically supported by clinical research and practice,” the academy contends.

A working telephone number for Millien could not be located on Friday night.

John R. Ellement can be reached at Travis Andersen can be reached at