Tagged: Brady violation

Battle of Experts: Controversy in Shaken Baby Case Set for NY Court

A New York court is set to hear testimony that will decide whether a shift in the medical community over the prognosis of shaken baby syndrome (“SBS”) constitutes newly discovered evidence under Article 440 of the New York Criminal Procedure Law. Supreme Court Justice James Piampiano has ordered a hearing in People v. Rene Bailey after being presented with strong evidence that the medical community’s standard for diagnosing shaken baby syndrome has significantly shifted over the years since Bailey’s conviction.

 Rene Bailey, once a daycare provider, was convicted of violently shaking a two year old child and causing severe brain injuries that resulted in the child’s death. At trial, the proof against Bailey rested primarily upon the testimony of a state medical examiner, who had claimed that the child’s internal brain injuries could only be caused by a violent shaking of the  body (SBS), and could not be attributed to any other cause known within the medical community at the time.

Contrary to the state’s medical examiner, medical experts for Bailey have now opined that a diagnosis of shaken baby syndrome should not have rested exclusively on the presentation of the child’s internal brain injuries, consisting of subdural hematoma, retinal hemorrhaging, and cerebral edema (“triad of injuries”). As of today, many members within the medical community no longer promote an exclusive diagnosis of SBS based solely upon the presentation of internal brain injuries, realizing that causes unassociated with shaking may be the root of the issue. Since Bailey’s conviction, medical studies have also shown that a child may suffer the “triad of injuries” as a result of impact to the brain caused by common short distance falls. Notably, as opined in an article by NY Times writer Emily Bazelon, some biomechanical engineers have raised doubts, [in the absence of external injuries], about whether it’s even possible to shake a baby to death.

Aside from new medical testimony, the Court will also entertain evidence that has been discovered by her attorney, Professor Adele Bernhard of New York Law School, which shows that her client may be factually innocent. The evidence presented by a new witness appears to support Bailey’s continuous declaration that she had not shaken the alleged victim, and further corroborates the observation of another child, who was present at the time of the occurrence and had initially stated to the police that the alleged victim had jumped off a chair and hit her head on the ground.  Justice Piampiano has also reserved judgment upon whether further discovery will be ordered in the matter, including whether Bailey’s request for the State to produce notes from an interview of a third child eyewitness will be granted. According to court papers, a third child may have also been present at the time of the alleged occurrence, and the child may have made exculpatory declarations to police consistent with Bailey’s version of the event  that were never disclosed to trial counsel.

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Second Circuit Upholds Right to Sue for Brady Violation after Guilty Plea

On January 16, 2014, in Poventud v. City of New York, No. 12-1011-cv, 2014 WL 182313 (2d Cir. 2014), the Second Circuit, sitting en banc, upheld the original panel’s ruling that the defendant, who served nine years in jail for a crime he probably didn’t commit, could sue the City despite the fact that he had originally pleaded guilty.  The dissenter on the original panel would have held that his Brady claim – that the police withheld information that impeached the victim’s identification – was waived by his plea, which essentially admitted he was at the scene.

In short, the Second Circuit took a very practical approach to the pressures – particularly on someone who is innocent – to plead guilty.

Let’s Make Brady v. Maryland Meaningful

The Brooklyn District Attorney has promised to review 50 convictions that relied on the work of police detective Louis Scarcella – linked to “troubling aspects” of one case that was recently overturned.

The newly established Conviction Integrity Unit will review all of the cases where Scarcella was the lead detective and where the police investigation culminated in a conviction after trial.  

The New York Times reported that Scarcella relied on a single eyewitness to make at least a dozen cases.  The witness was known to be a drug-addicted prostitute who claimed to have seen multiple different murders happen before her eyes.

We applaud DA Hynes for establishing a Conviction Integrity Unity, and for focusing on the work of Scarcella. However, we believe that broader interpretation of the Brady rule would have prevented these convictions and could prevent other miscarriages of justice going forward.  Any time a police informant takes the stand, the prosecution should be required to discover and disclose not just a witness’s prior record and the benefit expected in exchange for testimony (that information is required to be disclosed now – pursuant to the current conservative interpretation of Brady), but also information about all the other cases where the informant has testified in the past.  If defense counsel had been told that Scarcella’s informant had traveled around Brooklyn spotting murders, counsel might have argued to the jury that the informant’s testimony was simply not credible. The prosecution might have reached that same conclusion on its own. But, since Scarcella was not required to enlighten the prosecution regarding the informant’s special history, the prosecution could turn a blind eye and keep defense counsel in the dark too.  A broader reading of the Brady obligation would put a stop to such willful ignorance.  

Read the New York Times May 19, 2013 editorial on Brady here:  

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Disciplining Prosecutors

The California State Bar has recommended disbarment for a prosecutor, John Michael Alexander, based on misconduct that included failing to disclose exculpatory materials and lying about it.  Apparently, this prosecutor  had prior disciplinary cases based on misconduct.  This recommendation follows two other California disciplinary sanctions on prosecutors: one who was suspended for four years, and another who received a public reproval.

Three cases may not make a trend, but this may be a development worth watching. To read more, see the following: