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SJC orders new trial in 2007 ‘shaken baby’ case

The state’s high court Thursday ordered a new trial for a Haverhill man convicted of violently shaking his girlfriend’s toddler in 2007, the second ruling in six weeks that vacated guilty verdicts in shaken-baby cases.

Taken together, the two court rulings underscored the top court’s view that the “shaken-baby syndrome” diagnosis has become controversial, and defense lawyers who fail to challenge it could be depriving their clients of a fair trial.

In the Haverhill case, the Supreme Judicial Court said the defense lawyer should have presented medical evidence challenging prosecutors who had depicted the child as a victim of shaken-baby syndrome.

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The court said it was not ruling on the guilt or innocence of Derick Epps but on what constitutes effective counsel in this type of child-abuse prosecution, which has polarized pediatricians and lawyers nationwide on whether it is too often pursued in the courts.

In its unanimous ruling, the court found that jurors should have heard about the possibility that the 2-year-old’s catastrophic eye and brain injuries — which left her blind in one eye, cognitively impaired, and moving around in a wheelchair — could have been caused by a short fall of about 3 feet, like one that might have occurred in this case from a kitchen stool.

“We conclude that, in the unusual circumstances of this case, the absence of expert testimony that the child’s injuries might have been caused by her accidental falls deprived the defendant of an available, substantial ground of defense, and thereby created a substantial risk of a miscarriage of justice,” wrote Chief Justice Ralph D. Gants, who also authored the other shaken-baby case opinion last month.

Doubts have grown about shaken-baby syndrome among defense lawyers and some professional groups in recent years. Three state medical examiners in less than two years, for example, backed off earlier rulings that a baby died of shaken-baby syndrome, choosing instead after hearing from defense experts to say the cause was “undetermined.”

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Several organizations submitted briefs in support of Epps, including The Innocence Network, the American Civil Liberties Union of Massachusetts, and the Committee for Public Counsel Services.

Some medical organizations have pushed back, including the American Academy of Pediatrics, which fears marginal medical theories are gaining too much traction in the courts, allowing people who abuse infants to go free. In 2009, however, the academy did acknowledge the controversy brewing over the role that excessive shaking plays in creating extreme injuries.

The academy now tells doctors to use the term “abusive head trauma,” rather than shaken-baby syndrome, to indicate that traumatic blows to the head, not just shaking, are often behind the brain swelling and eye damage that afflict some 1,000 children each year, often causing permanent neurological damage if not death, the group said.

In a written statement, Essex District Attorney Jonathan Blodgett said he is reviewing his options to retry the case, even though Epps was released from prison several years ago. He was sentenced to a 7-to-10-year prison term.

Blodgett said he was “disappointed” by the high court’s decision, which vacates a jury verdict “involving the near-fatal injuries of a two-year-old girl, leaving her permanently and profoundly disabled.”

Blodgett said defense counsel hired a medical expert to analyze the shaken-baby diagnosis but chose not to use that testimony. The high court opinion indicated one defense expert ultimately sided largely with the prosecution’s case.

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The prosecutor also said he was disappointed that the opinion did not refer to trial testimony about the toddler being struck at least twice by Epps, prior to her life-threatening injuries, and asserted that only a “very small minority” of medical professionals are skeptical about shaken-baby syndrome as a valid diagnosis.

When reached by telephone, Epps’s appellate lawyer, David Hirsch of Portsmouth, N.H., said he hadn’t yet had a chance to read the full decision but said he was delighted by the ruling and the standard it sets for trials in these cases. He said he was pleased for Epps, whose conviction is now erased.

“I’m sure he’ll be thrilled,” he said.

During his 2007 trial in Essex Superior Court, Epps, then 30, was convicted on a single count of assault and battery for assaulting the child, identified in the ruling only by her first name, Veronica. That trial was overseen by Judge David Lowy, who is currently a nominee to the Supreme Judicial Court awaiting confirmation.

The alleged assault took place in 2004 while Epps and a male friend were playing video games while baby-sitting Veronica and her older 4-year-old sister in a Haverhill apartment. The girls’ mother and Epps’s girlfriend, Sara Comeau, had gone to work.

Epps told police that Veronica, whom he described as clumsy, fell twice during the day, once down a few stairs, and once off a stool. Her mother noticed a small red mark on the left side of her forehead when she came back from work briefly for a lunch break.

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Later in the afternoon, while the two men continued to play video games and the girls’ mother returned to work, they heard a “boom” from upstairs, Epps said. Racing upstairs, he said, he found her limp and gurgling. The men reached the girls’ mother, who quickly returned from work and then called 911.

The prosecution’s main witness was Dr. Celeste Wilson, a child-abuse pediatrician who examined Veronica at Boston Children’s Hospital. She testified that the normal activities of a toddler — including a fall from 3 feet above the ground — could not account for her extensive eye damage, as well as brain swelling, bleeding, and bruising.

Epps’s defense attorney, Lawrence McGuire, ultimately presented no medical experts to rebut the shaken-baby diagnosis, and instead, during closing statements, accused Comeau of causing the injuries, saying she was the last one to see Veronica at lunchtime before leaving again for work, a theory rejected by the jury.

In its ruling Thursday, the high court said the defense lawyer should have pursued research, available then, about the impact of short falls, and also said new research has emerged that gives defense teams even more medical research to draw on in these cases.

A jury, Gants wrote, should have heard both sides.

“We need not determine who would prevail in this battle of the experts, or whether the defendant would be found not guilty were it presented,” Gants wrote. “We need only determine, in the circumstances of this case, whether there is a substantial risk of a miscarriage of justice where the jury heard no scientific or medical expert challenging the majority views on shaken-baby syndrome and short falls, and where new research has emerged since the time of trial that would lend credibility to the opinion of such an expert.’’

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Patricia Wen can be reached at patricia.wen@globe.com. Follow her on Twitter at @GlobePatty. John R. Ellement can be reached at ellement@globe.com. Follow him on Twitter @JREbosglobe.