Ruling alters legal landscape in NY shaken-baby cases

For the first time, a New York appellate court has ruled that evidence once used to convict people in shaken-baby cases may no longer be scientifically valid.

The ruling, which came in the case of René Bailey, a Greece woman convicted of causing the death of a child in 2001, has implications for a number of other people in state prisons for shaken-baby offenses. In this area alone, several dozen people have been convicted of murder or assault in such cases.

The appeals court decision, released Thursday, changes the legal landscape in New York for alleged shaken baby cases, said Brian Shiffrin, a local appellate lawyer who was not involved in the case.

“It makes it both easier for defense attorneys to argue the science and it puts the burden back on prosecutors to show there is evidence to support the theory of shaken baby syndrome,” said Shiffrin, who has handled appeals of shaken-baby convictions.

The appeals ruling affirms a decision that freed Bailey in 2014.

Bailey, who ran a home day-care center, was charged with second-degree murder after a 2½-year-old girl in her care died after suffering a head injury. Prosecutors accused Bailey of causing the child's death by shaking or throwing her, and called medical experts who testified that the injury could only have been caused by the care-giver's abuse.

Her conviction came at a time when shaken-baby syndrome, as it was then known, was a cause célèbre in legal circles. High-profile prosecutions, always relying on medical testimony by experts who were certain about the suspect's guilt, were commonplace.

Bailey, now 56, had been in state prison about nine years when a volunteer lawyer offered to take up her case. The lawyer, Adele Bernhard, was director of a law clinic for indigent defendants at Pace University in Westchester County.

Bernhard argued that over the previous decade, research had revealed other explanations for the sort of internal injuries once ascribed solely to shaking a baby. An accidental fall or an illness could instead cause the injuries, a growing number of scientists and physicians had come to believe.

Bailey had insisted to police and prosecutors that the child at her home day care, Brittney Sheets, had jumped or fallen from an 18-inch-high chair and struck her head while Bailey was out of the room. At her trial, Bailey's assertion was overridden by medical testimony that the care-giver must have violently shaken the child.

Bernhard argued that there now were scientific findings that a fall could have caused Brittney's injuries. This latest science, she said, should be considered newly discovered evidence, which can be grounds to reverse a conviction and order a new trial.

In a ruling that at the time was unprecedented in New York, Monroe County Court Judge James Piampiano did indeed reverse Bailey's 2001 conviction on the grounds that the latest science was newly discovered evidence that, had it been presented at Bailey's trial, would likely have changed the outcome.

"There has been a compelling and consequential shift in mainstream medical opinion since the time of the defendant's trial," Piampiano wrote in his decision.

Bailey was freed. A possible new trial was put on hold while Monroe County District Attorney Sandra Doorley appealed Piampiano's ruling.

In its unanimous decision on that appeal, a four-judge panel of the Fourth Department Appellate Division of State Supreme Court said that Piampiano was right. "Had this evidence been presented at trial, the verdict would probably have been different," they wrote.

Bernhard, who now is at New York Law School in Manhattan, agreed Tuesday that this was the first appeals case in New York that had concluded new scientific findings about shaken-baby injuries constituted the type of newly discovered evidence that could overturn a conviction.

Bailey was not available for comment Tuesday.

"I am pleased to report that she has adjusted well. Thank goodness for family support," Bernhard said.

Brittney's mother, Jeanne Burdick, declined to comment Tuesday.

So did officials in Doorley's office.

Her office has multiple options. It could seek to appeal the latest decision to the state Court of Appeals, could retry Bailey, or could offer her a plea deal to a lesser charge than second-degree murder. If prosecutors decide that they no longer have a criminal case against Bailey, they would have to ask a judge to dismiss the criminal indictment against her.

"What happens now is up to the DA. I do not know what the office is thinking," Bernhard said. "Hopefully they understand that René has suffered along with the Sheets family."

Other state appellate regions are not bound by the decision from the Fourth Department, which includes 22 counties in the Rochester, Buffalo and Syracuse areas, but one regional appellate court does sometimes adhere to rulings from another. Conflicting decisions can be resolved by the state’s highest court, the Court of Appeals.

Defense lawyers with alleged shaken baby cases will likely use the decision to request what are called Frye hearings, which are court-ordered hearings about the legitimacy of scientific evidence.

Shiffrin said the Bailey appellate decision is significant because it acknowledges that the old science is now in question.

“What they held is that there is a lot of scientific evidence that now exists that, in fact, there are other causes for these symptoms,” he said.

At Frye hearings, prosecutors will now have to prove a reliable scientific foundation for the science, Shiffrin said.

“The question is how can the prosecution now admit the testimony of their (shaken-baby) experts,” he said. “ … For centuries, experts said the world was flat. At some point those experts were proven wrong.”


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