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.

Related Readings:

• Steve Orr, Judge Orders Special Hearing in Shaken Baby Case, Democrat & Chronicle (Jan. 24, 2014).
• Steve Orr, Watchdog Report: Shaken-Baby Science Doubt Grows, Democrat & Chronicle (June 29, 2013).
• Gary Craig, Watchdog Report: Shaken-Baby Triad Still Rules in New York Courts, Democrat & Chronicle (June 30, 2013).
• Emily Bazelon, New Evidence on Shaken Baby Syndrome, NY Times (Jul. 5, 2011).