Prosecutors in Middlesex County were probably just as relieved as the former nanny Aisling Brady McCarthy when she boarded a plane and flew back to her native Ireland the day after charges that she had killed a 1-year-old Cambridge girl in her care were dropped two weeks ago.
The controversy surrounding McCarthy’s case seemed to get on the trans-Atlantic flight with her. Out of sight, out of mind.
But the reverberations from her case are just beginning.
The state’s highest court seems determined to provide some guidance in the increasingly contentious field of diagnosing the deaths and serious injuries of infants and toddlers in cases where there are no independent witnesses.
The Supreme Judicial Court is soliciting amicus, or friend-of-the-court, briefs from interested parties as it considers appeals in two cases of men convicted of child abuse based on findings of shaken baby syndrome, or SBS, and abusive head trauma, or AHT.
The two cases the SJC is considering involve men who were convicted of causing permanent injuries to children they were minding. Derick Epps served nine years, three of them in pretrial detention, for abusing his girlfriend’s daughter while he minded the 2-year-old at their Haverhill apartment in 2004. Oswelt Millien was sentenced to 4 to 5 years for abusing his 6-month-old daughter at her Woburn home. Like McCarthy, Millien was prosecuted by the Middlesex district attorney’s office.
Both men are represented by David Hirsch, a Portsmouth, N.H., lawyer who, in Millien’s case, is zeroing in on the same physician who provided the damning but later discredited diagnosis against McCarthy, Dr. Alice Newton. Newton also provided the diagnosis in a Middlesex County case in which charges were dropped last year against a Malden man accused of killing his 6-month-old son.
Now the medical director of the child protection program at Massachusetts General Hospital for Children, Newton held a similar position at Boston Children’s Hospital when she made the diagnoses in the Millien and McCarthy cases.
I reached out to Newton but she declined to comment, saying it would be inappropriate given the pending cases.
Melinda Thompson, McCarthy’s lawyer, says Middlesex County has relied on Newton and other physicians who are using an outdated protocol in charging people under the SBS and AHT diagnoses. It’s not an idle claim. She used to work as a Middlesex prosecutor.
Thompson said that in both of the cases before the SJC, like McCarthy’s, there was a rush to judgment — that the physicians told the prosecutors what they needed to charge someone with a crime, but there was no serious consideration of underlying health issues of the children who turned up with brain injuries.
“In Aisling’s case, Dr. Newton never put pen to paper,” Thompson said. “We asked for her notes. But there were none.”
In Millien’s case, Hirsch contends in his filing that Newton contradicted her original diagnosis at an appeal hearing.
A growing cadre of defense attorneys are withering in their criticism of Newton. Newton has her defenders, among them some prominent pediatricians. Another of her prominent defenders, Dr. Eli Newberger, suggests that Newton is being unfairly pilloried by defense lawyers.
“She is a dedicated and serious science-oriented person,” Newberger said.
But that’s just the point, Thompson says. There is no consensus on the science, and an increasing number of physicians are challenging the traditional view on the SBS and AHT diagnoses.
Kate Judson, a clinical instructor at University of Wisconsin Law School and co-director of the Wisconsin Innocence Project, said there are more than 100 convictions based on SBS and AHT diagnoses that are being challenged by a nationwide network of innocence project lawyers.
“Part of the problem is outdated science,” Judson said. “Practice and testimony in courts have not kept up with the science.”
Newberger and Dr. Patrick Barnes, who both testified on behalf of Middlesex prosecutors in the 1997 case against Louise Woodward, a 19-year-old British nanny convicted of killing an 8-month-old Newton boy in her care, have gone their separate ways on the science.
Barnes says he can’t stand behind the testimony he gave in Woodward’s case, and in more recent years has testified on behalf of defendants, saying the SBS and AHT diagnosis is sometimes wrongly made in cases where underlying health issues can cause the same symptoms.
Newberger is dismissive of the revisionist views that defense attorneys are increasingly tapping.
“On the clinical testifying roster are a whole lot of people who will cut their consciences for money,” Newberger said. “They’re hired out as defense whores. I just find this vile.”
That kind of talk underscores the emotions on both sides, and Thompson, McCarthy’s lawyer, finds the accusations from those who most often testify on behalf of the prosecution hypocritical. She said all of the medical experts who took part in McCarthy’s defense did so free of charge.
“People who are challenging the science are being vilified,” Thompson says. “When you resort to character assassination, what does that say about your argument?”
The SJC has the Herculean task of separating the emotion from the science and the law. Abusing a child is probably the worst thing anyone could do. But as Judson put it, “No kid is protected when you lock up someone who is innocent.”
Since returning to her hometown in County Cavan, McCarthy was able to spend a wedding anniversary with her husband, Don. She was arrested just a few months after they married in 2012, and spent their first two anniversaries locked up as the case against her dragged on.
Thompson said McCarthy is fully supportive of the efforts to challenge the convictions of people found guilty on evidence similar to that which was presented in her case.
“Not in a vindictive way,” Thompson said. “Aisling just doesn’t want anyone else to go through what she did.”
Nor should any of us.