Commonwealth v. Millien

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SJC-11928

COMMONWEALTH vs. OSWELT MILLIEN.

Middlesex. December 7, 2015. - June 3, 2016.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.

Assault and Battery. Child Abuse. Evidence, Expert opinion.
Constitutional Law, Assistance of counsel. Due Process of
Law, Assistance of counsel. Practice, Criminal, New trial,
Assistance of counsel.

Indictments found and returned in the Superior Court
Department on December 23, 2009.

The cases were tried before S. Jane Haggerty, J., and a
motion for a new trial, filed on June 24, 2013, was heard by
her.

The Supreme Judicial Court granted an application for
direct appellate review.

David Hirsch for the defendant.
Kate Cimini, Assistant District Attorney, for the
Commonwealth.
The following submitted briefs for amici curiae:
Seth Miller, of Florida, Katherine H. Judson, of Wisconsin,
Adam W. Deitch & Lindsay A. Olson, of New York, & Mark W. Batton
for The Innocence Network.
Heather Kirkwood, of Washington, & David E. Meier for David
Ayoub & others.
 2

Matthew R. Segal, Dennis Shedd, & Chauncey B. Wood for
Committee for Public Counsel Services & others.

GANTS, C.J. On the evening of October 20, 2009, the

defendant's six month old daughter, Jahanna, was rushed to the

emergency room, unconscious and unresponsive. She was diagnosed

with traumatic brain injury, and scans of her brain showed

retinal hemorrhages, subdural hematoma, and brain swelling, the

three symptoms known as "the triad" associated with shaken baby

syndrome. The defendant, who was the baby's sole caretaker when

she became unconscious, claimed that Jahanna accidentally fell

backwards from the couch where she was sitting and landed on the

wooden floor. After Jahanna's physicians concluded that her

brain injuries could not have been caused by an accidental fall

from the couch but were instead caused by a violent shaking, the

defendant was charged and later convicted by a jury of assault

and battery on a child causing substantial bodily injury (head

injuries), in violation of G. L. c. 265, § 13J (b), and assault

and battery on a child causing bodily injury (fractured

vertebrae), in violation of G. L. c. 265, § 13J (a).1

There is a heated debate in the medical community as to

whether a violent shaking of a baby alone can generate enough

1
The defendant was found not guilty on two indictments
alleging assault and battery on a child causing bodily injury
(fractured tibia and fractured ribs), in violation of G. L.
c. 265, § 13J (a).
 3

force to cause the triad of symptoms of traumatic brain injury,

and as to whether these symptoms can sometimes be caused by a

short accidental fall. At trial, the jury heard only one side

of this debate, because the defense attorney did not retain a

medical expert to offer opinion testimony or to assist him in

cross-examining the Commonwealth's medical experts. We conclude

that, in these circumstances, where the prosecution's case

rested almost entirely on medical expert testimony, the

defendant was denied his constitutional right to the effective

assistance of counsel because, by not providing the jury with

the other side of this debate, his attorney's poor performance

"likely deprived the defendant of an otherwise available,

substantial ground of defence." See Commonwealth v. Saferian,

366 Mass. 89, 96 (1974).2

Background. 1. Evidence at trial. We summarize the

evidence presented at trial. The defendant was in his early

twenties when his girl friend, Amanda Leavitt, told him that she

was pregnant. He urged her to "keep" the baby, and accompanied

her to medical appointments during the pregnancy. Although he

was disappointed when he learned that Leavitt was going to have

2
We acknowledge the amicus briefs submitted by The
Innocence Network and "concerned physicians and scientists," and
the amicus brief jointly submitted by the American Civil
Liberties Union of Massachusetts, the Committee for Public
Counsel Services, and the Massachusetts Association of Criminal
Defense Lawyers.
 4

twin girls, preferring a boy, he was happy when the girls,

Jahanna and Taeja, were born on March 27, 2009, and was with

Leavitt in the operating room when she had her cesarean section.

Before the babies were born, Leavitt moved to the home of

her mother, Dianna Gagnon, who lived with her boy friend and

Leavitt's teenaged siblings in Woburn. The defendant visited

nearly every day and generally stayed overnight after the twins

were born. The defendant shared the responsibilities of child

care with Leavitt; he fed, changed, and played with the twins

daily. When the twins were approximately five months old,

Leavitt found a job at a restaurant, working several nights a

week from between 4 and 5 P.M. to between 9 P.M. and midnight,

and during that time the defendant, Leavitt's mother, or the

defendant's mother or sister cared for the twins. In September,

2009, Leavitt and the twins moved to a townhouse apartment in

Woburn, and the defendant lived there with them.

The defendant was inexperienced in caring for babies, but

he sought advice regarding child care from Leavitt and Gagnon.

No witness ever saw him spank or abuse the twins, but at times,

he patted the twins too roughly while trying to burp them and on

a few occasions walked away from the changing table while he was

changing them. He was responsive to criticism, however, when

other caretakers instructed him how better to care for the

twins. Jahanna was the fussier baby, and the defendant was more
 5

comfortable caring for Taeja than he was caring for Jahanna.

But when Jahanna was colicky, the defendant sometimes would pick

her up and walk around and talk with her. Gagnon described the

defendant as a man of quiet demeanor whom she never saw angry

and never heard shout, and whom she never saw hit or grab

anyone.

There were no complications regarding the twins' birth, but

Jahanna soon developed various health problems. She was

"cranky," cried often, and was difficult to feed. When Jahanna

was approximately two months old, her primary care pediatrician,

Dr. Elizabeth Burba, placed her on a more gentle formula. Nine

days later, Leavitt telephoned the doctor's office and reported

that Jahanna had vomited blood. She was referred to the

emergency room at Winchester Hospital, where she was diagnosed

with gastro-esophageal reflux and was prescribed antacid

medication. Dr. Burba noted at Jahanna's three-month "well

visit" that she was "taking her feeds now" and gaining weight.

Leavitt discontinued using the medication after "a couple of

months" because Jahanna was doing well. When Jahanna was

approximately four months old, Leavitt noticed that one of her

legs "would kind of be limp." She testified, "I would hold her

up and one leg would be touching the ground and one would be in

the air, like a bend in the knee." Leavitt took Jahanna to Dr.

Burba's office, where she was diagnosed with a "hip click." She
 6

was given a hip ultrasound, which was normal. On September 29,

2009, Leavitt reported that Jahanna had again vomited blood, and

returned to the Winchester Hospital emergency room, where she

was given an abdominal x-ray, which was normal, and once again

was prescribed the antacid medication. At her six-month "well-

visit" on October 2, Jahanna was "no longer fussy or irritable,"

and her "gross motor development examination," which showed that

she could roll over from side to side, move objects from one

hand to another, and sit up with a bit of support, was normal

for her age. During her care of Jahanna, Dr. Burba saw no sign

that Jahanna had been abused.

On October 20, 2009, Leavitt was at work and the defendant

was alone in her Woburn apartment caring for the twins. At

approximately 8:45 P.M., Robert Jeffrey, who lived next door

with his wife, Eileen, knocked on the door to Leavitt's

apartment, which was slightly ajar, and asked the defendant for

a cigarette. He saw the defendant sitting on the couch in the

living room feeding Jahanna, with Taeja sitting in "a little

bouncy thing" on the floor. Their demeanor appeared "good";

Jahanna "was just whining like she was hungry." The defendant

said he did not have any cigarettes, so Robert3 drove to a nearby

gasoline station, approximately four minutes away. When Robert

3
We refer to Robert Jeffrey and Eileen Jeffrey by their
first names because they share the same last name.
 7

parked in front of his apartment, about ten minutes later, the

defendant ran over, looking "[v]ery shooken up," and asked to

use Robert's telephone to call his girl friend because something

had happened to one of the babies. Eileen, who was a certified

nurse assistant, was walking towards Robert from the steps of

the Jeffrey home when Robert returned. She heard the defendant

say that the baby fell, and when Eileen asked if she was okay,

the defendant said he did not know. She then immediately walked

into the defendant's apartment and saw Jahanna on the couch.

Jahanna was pale and unresponsive, and her eyes were closed.

Robert then drove the defendant and Jahanna to the emergency

room at Winchester Hospital.

At trial, Eileen testified that she was sitting at her

computer on the first floor of her apartment when Robert left to

find cigarettes, and she went outside when she heard him

returning. Although the walls between her apartment and the

Leavitt apartment were thin, and she could often hear noises

coming from the Leavitt apartment, Eileen heard no banging or

other noise during the time that Robert was gone.

Jahanna arrived in the emergency room of Winchester

Hospital at approximately 9:18 P.M. Dr. Atima Delaney, the

attending pediatric physician in the emergency room who treated

Jahanna, obtained a medical history of Jahanna from the

defendant that evening. Dr. Delaney described the defendant as
 8

"worried and quiet." The defendant told Dr. Delaney that he had

been sitting on the couch while Jahanna had been lying on the

couch. When he turned around to grab a bottle, Jahanna fell off

the couch. When he turned back, he saw the baby lying on her

back on the hardwood floor. She immediately vomited, and then

became unconscious.

A computerized tomography (CT) scan taken at Winchester

Hospital revealed a large subdural hematoma (a collection of

blood between the dura4 and the brain), brain swelling, and a

comminuted skull fracture located in the left parietal skull.5

The CT scan also showed a "midline shift," meaning that one side

of the brain had started to push over to the other side because

of the brain swelling. Because of the severity of Jahanna's

injuries, she was transferred to Children's Hospital, where a

pediatric neurosurgeon, Dr. Mark Proctor, performed emergency

brain surgery. When he opened the dura inside the skull to

relieve the brain swelling, the fluid, including clotted blood,

was under such high pressure that it "squirted up about one and

a half to two feet." The presence of clotted blood revealed

that the injury had happened "within hours." Dr. Proctor did

4
The dura is the membrane between the skull and the brain.

5
A fracture is characterized as comminuted where there is a
series of fractures that cross or are parallel rather than a
single fracture in one straight line, which is characterized as
linear.
 9

not see extensive injury to the brain itself, but saw that the

brain was swelling to such an extent that he needed to remove

more bone to relieve the pressure. He located the torn blood

vessel that was the cause of the hemorrhage, which was in the

subdural space towards the top of the head, to the left of the

midline.

On the afternoon of October 21, Inspector Timothy Donovan

of the Woburn police department interviewed the defendant at

Children's Hospital. The defendant recounted essentially what

he had told Dr. Delaney, but with some additional details. He

said he was sitting in the middle of a two-seat loveseat,

watching a baseball game on the television, and was preparing to

feed Jahanna. He placed her to his right on the loveseat,

facing the back of the couch. He reached back to grab a bottle

and saw Jahanna fall off the couch. When he picked her up from

the floor, her eyelids were closed, she was not crying, and her

head was "bobbling." He saw that she was breathing, but

unresponsive, so he took off her pajamas, brought her upstairs

to the bathroom, placed her in her "bathinet," and sprinkled

water on her face. When he saw that she was still unresponsive,

he put her pajamas back on, and ran next door to speak to the

Jeffreys. When the inspector told him that Jahanna's injuries

were consistent with her having been shaken, the defendant

replied that the only shaking he ever did was bouncing Jahanna
 10

on his knee. The inspector later measured the distance from the

floor to the seat of the couch and determined that it was

seventeen and one-half inches tall.

The defendant spoke that same day with Donna Hughes, an

investigator with the Department of Children and Families, and

told her essentially what he had told Dr. Delaney and Inspector

Donovan, but with one important additional detail: he said

that, when Jahanna fell, she fell backwards and her head hit the

floor.

An examination by a pediatric ophthalmologist, Dr. Iason

Mantagos, on October 22 found no sign of direct trauma to the

eyes. But he found in both eyes extensive hemorrhages (blood

spots) in all four quadrants of the retina (the multiple layers

of cells that include the photo receptors that are stimulated by

light and create impulses that are sent to the brain), from the

center to the periphery of the retina, including on the optic

nerve (which sends information from the retina to the brain) and

in the macular (the area of the eye responsible for sharpest

vision). Dr. Mantagos testified that "[t]his finding is

consistent with trauma and the force that's required to cause

such bleeding is extensive." In describing the different kinds

of trauma that can produce retinal hemorrhages, he included the

extreme shaking of an infant, which causes the contents of the

eyeball to move rapidly back and forth at different speeds,
 11

which in turn causes the vitrious (the jelly that fills the eye)

to separate from the retina and put traction on the blood

vessels.6 Claiming reliance on the medical literature in peer-

reviewed journals, he opined on redirect examination that the

retinal hemorrhaging he found would be consistent with a fall

only if it were from the highest point of a swing to a cement

floor, a fall down a flight of stairs in a stroller, or a fall

from a height of one or two stories and hitting the ground.

Dr. Alice Newton was the medical director of the Child

Protection Program at Children's Hospital, and has written

extensively on shaken baby syndrome, which she testified was now

called abusive head trauma.7 She examined Jahanna on October 21

6
Dr. Iason Mantagos also testified that the shaking of an
infant can cause bleeding inside the skull, swelling of the
brain, and fractures of the vertebrae where the skull meets the
spinal cord.
7
In 2009, the American Academy of Pediatrics (AAP) in a
policy statement recommended that pediatricians "use the term
'abusive head trauma' rather than a term that implies a single
injury mechanism, such as shaken baby syndrome, in their
diagnosis and medical communications." Christian, Block, and
the Committee on Child Abuse and Neglect, Abusive Head Trauma in
Infants and Children, 123 Pediatrics 1409, 1411 (2009). The AAP
explained, "The goals of this policy statement is not to detract
from shaking as a mechanism of [abusive head trauma] but to
broaden the terminology to account for the multitude of primary
and secondary injuries that result from [abusive head trauma],
some of which contribute to the often-permanent and significant
brain damage suffered by abused infants and children." Id. at
1410. It noted that the term "shaken baby syndrome" is
"sometimes used inaccurately to describe infants with impact
injury alone or with multiple mechanisms of head and brain
 12

to determine whether Jahanna's injuries were caused by child

abuse. Dr. Newton testified that, "when one refers to shaken

baby syndrome, one refers to a combination of findings":

bleeding around the brain (subdural hematoma), brain injury, and

retinal hemorrhages.8 She testified that Jahanna displayed all

three of these injuries, and she described how shaking can cause

each of them. She opined to a "reasonable degree of medical

certainty" that the cause of Jahanna's subdural hematoma, brain

injury, and retinal hemorrhages was that Jahanna was "violently

shaken." She stated as the basis of her opinion that the

constellation of injuries sustained by Jahanna fit the

definition of shaken baby syndrome and "do not have any other

medical explanation." She declared that Jahanna "did not have

some type of massive accidental head injury" and that "the

amount of force in a short household fall is not very

significant." Dr. Newton also offered a motive for violently

shaking a baby, explaining that when a caretaker is unable to

handle a crying infant, he or she sometimes shakes the infant as

a mode of discipline or simply out of frustration.

injury and focuses on a specific mechanism of injury rather than
the abusive event that was perpetrated against a helpless
victim." Id.
8
Dr. Alice Newton noted that it is not always true that the
violent shaking of an infant results in all three of the
constellation of injuries.
 13

She further testified that in addition to the brain

bleeding, brain injuries, and retinal hemorrhages, Jahanna was

diagnosed with fractures of multiple ribs and of the tibia of

her right leg, both of which were in an advanced state of

healing and were "probably at least a month old." Dr. Newton

also noted that Jahanna had compression fractures of thoracic

vertebrae eleven and twelve. She said she could not opine when

the vertebral fractures occurred, because they do not heal with

new bone formation like ribs and the tibia, but she did offer

the opinion that these fractures were caused by "some type of

crushing force," which could include the extreme flexion caused

by violent shaking.

Dr. Newton opined to a reasonable degree of medical

certainty that, of all the injuries suffered by Jahanna, "the

only injury . . . that could possibly be related" to a short

fall was the skull fracture, but that this was "very unlikely,"

because short falls are more likely to result in linear, rather

than comminuted, fractures. She testified that the skull

fracture required "some type of blow," such as "slamming the

child against something."9 She stated that one could not

determine when a skull fracture occurred simply by looking at

9
Dr. Newton noted that it is "common" that the violent
shaking of an infant is followed by the angry caretaker throwing
the infant on the floor, resulting in swelling of the scalp or
some type of fracture.
 14

the CT scan because it heals in the same way that vertebrae

heal, but she felt strongly that the skull fracture was "acute,

although that's a little bit harder to be definitive about."

The defendant called three witnesses in his defense: his

sister, his mother, and himself. His sister testified that she

never saw the defendant shake, spank, or throw Jahanna, and

never saw him compress Jahanna's ribs. His mother said little

regarding the defendant's care of the twins because, when the

twins were at her house, she or the defendant's sister would

feed and change them, not the defendant. The defendant's

testimony was essentially consistent with what he had already

told Dr. Delaney and the investigators. The defendant offered

no expert witness to rebut the medical opinion evidence

regarding shaken baby syndrome.

The prosecutor in closing argument argued that the

defendant "shook [Jahanna] with such violence it caused the

blood vessels in her brain to hemorrhage. It caused the [blood

vessels in her] retinas in the back of her eyes . . . to

hemorrhage in an attempt to get her to stop crying so he could

focus on the game that he so wanted to watch. . . . He collided

her head against a blunt object or surface to cause that

multiple fracture in her skull, and shook her with such force

that T11 and T12 vertebrae were fractured in a compressive

manner consistent with her shaking back and forth with her spine
 15

moving back and forth in a rapid acceleration and deceleration

fashion." The prosecutor also argued that "[i]t does not make

sense" that Jahanna's fall from the couch could have caused her

extensive brain bleeding and swelling, or her comminuted skull

fractures. He claimed that "[c]hildren fall all the time" and

"[t]heir heads collide with hard objects or floors," but "[t]hey

do not go unresponsive" or sustain the injuries found here.

The defense attorney in closing argument focused almost

entirely on the multiple persons who cared for Jahanna before

October 20, and invited the jury to consider that any one of

them could have been responsible for the fractures to her ribs

and tibia that occurred before that date. As to the head

injuries suffered on October 20, he said that it was an

"accident that can happen with any one of us who may be taking

care of children."

The defendant's strategy of focusing the jury on the number

of Jahanna's caretakers was successful in obtaining acquittals

on the two indictments charging the defendant with causing

Jahanna's fractured tibia and fractured ribs, both of which

showed signs of healing before October 20 and therefore occurred

before that date. But the jury found the defendant guilty on

the indictments alleging that the defendant caused Jahanna's
 16

head and vertebral injuries on the theory of intentional assault

and battery.10

2. Motion for new trial. The defendant filed a motion for

a new trial under Mass. R. Crim. P. 30 (b), as appearing in 435

Mass. 1501 (2001), on grounds of ineffective assistance of

counsel. The defendant claimed that trial counsel was

ineffective for failing to consult or call an expert on the

science of shaken baby syndrome, and that his counsel's failure

to do so denied him a substantial ground of defense. The trial

judge held an evidentiary hearing on the motion.

At the hearing, where the defendant was represented by new

counsel, the defendant presented an affidavit from his trial

attorney.11 Trial counsel attested that the defendant was

indigent but he was retained privately by the defendant's

father. He sought funds from the defendant's father to retain

an expert, but the father refused to pay, so he did not consult

with any medical expert or present any expert testimony.

10
The defendant was sentenced to not less than four and not
more than five years in State prison on the indictment charging
assault and battery on a child causing substantial bodily injury
(head injuries), followed by a five-year term of probation on
the indictment charging assault and battery on a child causing
bodily injury (fractured vertebrae).
11
Although the affidavit was not formally admitted in
evidence, it was informally admitted in that the defendant
submitted the affidavit at the hearing, the judge suggested that
she would consider it, and the Commonwealth did not object.
 17

Instead, he reviewed the studies Dr. Newton cited in her

testimony and the medical literature on shaken baby syndrome.

At the hearing, the defense offered the judge a glimpse of

the scientific evidence that could have been presented at trial

through the testimony of Dr. Ronald Uscinski, a board-certified

clinical neurosurgeon. Dr. Uscinski testified to opinions that

challenged the opinions of the Commonwealth's experts who

testified at trial and offered an alternative scientific

explanation for Jahanna's injuries consistent with an accidental

fall.

First, Dr. Uscinski called into question whether shaken

baby syndrome is a valid and scientifically supported medical

diagnosis. He testified to the weaknesses of the methodologies

employed by many of the foundational shaken baby syndrome

studies, and stated that numerous studies have shown that humans

cannot shake babies hard enough to cause bleeding in the

subdural space. He explained that no one knows the minimum

force required to cause subdural bleeding in a baby, but it is

known that "[t]here's a range, and we don't come anywhere near

that range by shaking." He pointed to research showing that if

an infant were shaken so violently to produce the level of force

needed to cause the triad of symptoms of shaken baby syndrome,

the infant's neck would not be able to withstand the force and

would suffer some sort of injury. He concluded that shaken baby
 18

syndrome is a hypothesis that has "never been proved" and is

"scientifically . . . not plausible." He also opined to a

reasonable degree of medical certainty that shaking an infant

cannot cause the "triad of injuries" associated with shaken baby

syndrome (subdural hematoma, brain swelling, and retinal

hemorrhages).

Second, Dr. Uscinski put forth an alternative theory of the

cause of Jahanna's injuries. Dr. Uscinski opined to a

reasonable degree of medical certainty that a skull fracture of

the type Jahanna sustained can be caused by a fall of seventeen

and one-half inches onto a hard surface. He explained that a

fracture can result from an impact in another area of the head,

caused by one part of the bone being pushed in and other parts

of the bone being pushed outward. He explained that the

parietal bone is "quite thin in [the area of compression] and

will be susceptible to being cracked if bent that way, and that

resulted in that parietal fracture." He also stated that the

impact from the fall could have caused the tearing of the blood

vessels and the development of subdural bleeding. The subdural

bleeding could then have caused elevated intracranial pressure,

the presence of which was evident from the increased retinal

venous pressure shown on Jahanna's CT scan. In his opinion,

this elevated intracranial pressure in turn caused the retinal

hemorrhages. Based on this scientific theory, Dr. Uscinski
 19

testified that a short fall of seventeen and one-half inches

onto a hard surface could account for the head injuries that

Jahanna sustained.

The Commonwealth again called Drs. Mantagos and Newton to

testify at the hearing. Dr. Mantagos testified that retinal

hemorrhages can result from elevated intracranial pressure, but

such hemorrhages "tend to be isolated in number[]." In

contrast, where caused by abusive head trauma, the retinal

hemorrhaging tends to be more extensive, to involve more layers

of the retina, and to be present in all four quadrants of the

retina. He testified that the retinal hemorrhaging in Jahanna's

right eye was extensive, was in at least two layers of the

retina, and was in all four quadrants, and that the retinal

hemorrhaging in her left eye was "less extensive . . . but still

a significant number." He opined that he "would not expect"

intracranial pressure to be the cause of the retinal

hemorrhaging in both eyes.

Dr. Mantagos admitted that retinal hemorrhages can occur

even with short falls, but stated that they "tend to be" rare,

associated with bleeding in the brain, and isolated in one eye.

Dr. Mantagos stated that "the hemorrhages that we see here

involve both eyes and they're more in number than you would

expect to see from falls." He opined that he "would not expect"
 20

a short fall of seventeen and one-half inches to be the cause of

the retinal hemorrhages.

Dr. Newton reiterated the opinion she gave at trial that

the only cause consistent with Jahanna's injuries was the

intentional infliction of injury by her caretaker. But her

testimony at the motion hearing differed from her trial

testimony in that, at trial, Dr. Newton had opined that

Jahanna's brain injuries and retinal hemorrhaging were caused by

shaking alone, but she testified at the motion hearing that the

cause of these injuries was shaking combined with a slamming

against a hard surface. She opined that it is "very, very

unlikely" that Jahanna's comminuted skull fracture, which was

located on the left side of her skull, could have resulted from

a fall onto the back of her head. Rather, she testified that

the amount of swelling and the collection of blood around the

fracture signify that Jahanna had a blow to the left side of her

head. She rejected Dr. Uscinski's opinion that Jahanna's head

injuries were consistent with an accidental fall as described by

the defendant.

The judge concluded that trial counsel's failure to consult

with an expert to attempt to counter the opinions of the

Commonwealth's experts, explore an alternative theory of

causation, and assist him in cross-examination fell below the

minimum level of performance expected from an ordinary, fallible
 21

criminal defense attorney, because it ceded the "pivotal issue"

of causation and left the defendant "without an opportunity for

a viable defense." She determined that trial counsel "should

have sought the necessary funds to hire an expert to examine the

medical records in order to explore whether Jahanna could have

sustained her injuries from falling from . . . a couch." But

the judge denied the defendant's motion for a new trial because

she concluded that, "due to the powerful medical evidence that

was before the jury, it is unlikely that an expert's assistance

or opinion would have 'accomplished something material for the

defense'" (citation omitted). In short, the judge determined

that the Commonwealth's experts had so overwhelmingly

established that Jahanna's injuries were intentionally inflicted

that "it cannot be reasonably asserted that Jahanna sustained

[the injuries] by merely falling off of a couch onto the back of

her head," so neither better cross-examination nor an expert's

opinion would have "added anything substantial to the defense."

The defendant appealed from his convictions and from the

denial of his motion for a new trial, and we granted the

defendant's motion for direct appellate review. The defendant

presents two claims on appeal. First, he contends that the

judge erred in denying his motion for a new trial. Second, he

contends that the evidence was insufficient as a matter of law

to support his conviction on the indictment charging assault and
 22

battery of a child causing bodily injury (fractured vertebrae)

because no reasonable jury could ascertain when these fractures

occurred and that he had caused them.

Discussion. 1. Motion for new trial. As we consider

"whether there has been a significant error of law or other

abuse of discretion" in the denial of the motion for a new

trial, Commonwealth v. Grace, 397 Mass. 303, 307 (1986), it is

important to recognize that the Commonwealth's case rested

almost entirely on inferences regarding the defendant's conduct

based on the medical evidence. There was no evidence that the

defendant had ever before shaken, spanked, or struck Jahanna; at

worst, he was inexperienced in caring for an infant and, at

times, burped her a bit too hard and left her without adequate

vigilance when she was being changed. On October 20, within ten

minutes of when Jahanna was found unconscious and unresponsive,

Robert Jeffrey saw the defendant feeding her on the living room

sofa. During those ten minutes, despite the thin walls that

separated their neighboring apartments, Eileen Jeffrey heard

nothing unusual. The Commonwealth's theory of the case at trial

was that, at some moment within those ten minutes, the defendant

became so enraged at Jahanna that he shook her so violently that

he caused her to suffer the triad of symptoms of shaken baby

syndrome.
 23

Essentially, the Commonwealth's prosecution rested on two

related claims: first, that the only medically reasonable

explanation for the nature and severity of Jahanna's injuries

was that she was violently shaken by the defendant; and second,

that injuries of the nature and severity she suffered could not

possibly have been caused by an accidental fall from a sofa, so

the defendant was lying when he offered that explanation,

demonstrating his consciousness of guilt. A competent defense

attorney would have recognized that, if the jury were to find

that the defendant's report of an accidental fall was credible

and that medically it was reasonably possible that Jahanna's

injuries were caused by that fall, the jury might have a

reasonable doubt whether the defendant violently shook Jahanna.

Therefore, it was critically important to the defendant to

elicit evidence, whether through cross-examination of the

prosecution's expert, the testimony of a defense expert, or

both, that may cause the jury to have a reasonable doubt whether

Jahanna's injuries could have been caused by the accidental fall

described by the defendant.

To prevail on a motion for a new trial claiming ineffective

assistance of counsel, a defendant must show that there has been

a "serious incompetency, inefficiency, or inattention of counsel

-- behavior of counsel falling measurably below that which might

be expected from an ordinary fallible lawyer," and that
 24

counsel's poor performance "likely deprived the defendant of an

otherwise available, substantial ground of defence."

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). We agree

with the judge that the first prong of the Saferian test was met

in this case.

The defendant's trial counsel here was ineffective, not

because he failed to understand that he needed an expert witness

to advise him regarding the medical evidence and to offer

opinion testimony, but because he failed to seek funds from the

court to retain an expert witness for his indigent client. A

defendant who is indigent is entitled to funds for an expert

witness where the retention of such a witness is necessary to

the defense even where the defendant's family member is paying

the defendant's legal fees. See G. L. c. 261, § 27C

(Commonwealth shall provide funds to cover "extra fees and

costs" for indigent defendant if "the document, service or

object is reasonably necessary to assure the applicant as

effective a . . . defense . . . as he would have if he were

financially able to pay"). Where, as here, the defendant was

indigent and the family member who was otherwise furnishing

funds for the defense refused to pay for an expert witness, it

was manifestly unreasonable for defense counsel not to apply to

the judge for the funds needed to retain an expert witness. See

Hinton v. Alabama, 134 S. Ct. 1081, 1088 (2014) ("The trial
 25

attorney's failure to request additional funding in order to

replace an expert he knew to be inadequate because he mistakenly

believed that he had received all he could get under Alabama law

constituted deficient performance"); Commonwealth v. Kolenovic,

471 Mass. 664, 674 (2015), quoting Commonwealth v. Acevedo, 446

Mass. 435, 442 (2006) (where defendant's ineffective assistance

of counsel claim "is based on a tactical or strategic decision,

the test is whether the decision was '"manifestly unreasonable"

when made'"). See also Commonwealth v. Haggerty, 400 Mass. 437,

442 (1987) ("Failure to investigate the only defense a defendant

has, if facts known to or with minimal diligence accessible to

counsel support that defense, falls beneath the level of

competency expected").

Turning to the second prong of the Saferian test, we

consider whether counsel's failure to seek funds to retain an

expert witness prejudiced the defendant. Prejudice in this

context means that the defendant has likely been deprived of an

"available, substantial ground of defence," Saferian, supra at

96; the challenge is to articulate when a defense is substantial

such that its deprivation requires a new trial.

Ten years after we established the Saferian test to

determine when a defendant is entitled to a new trial because of

the ineffectiveness of counsel, the United States Supreme Court

established its own test under Federal constitutional law.
 26

Strickland v. Washington, 466 U.S. 668, 693-694 (1984). The

Court held that, where counsel has been ineffective, the

defendant must "affirmatively prove prejudice." Id. at 693. In

order to prove prejudice,

"[t]he defendant must show that there is a reasonable
probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to
undermine confidence in the outcome."

Id. at 694. We have not adopted this precise formulation but

have recognized that the prejudice standard under the

Massachusetts Constitution "is at least as favorable to a

defendant as is the Federal standard." Commonwealth v. Curtis,

417 Mass. 619, 624 n.4 (1994).

In reviewing convictions in noncapital cases such as this,

we have sometimes said that, for a new trial to be ordered

because of counsel's inadequate performance, "there ought to be

some showing that better work might have accomplished something

material for the defense." Commonwealth v. Satterfield, 373

Mass. 109, 115 (1977). This phrase from Satterfield has often

been cited as the prejudice standard where counsel failed to

investigate or present a ground of defense. See, e.g.,

Commonwealth v. Valentin, 470 Mass. 186, 190 (2014) (citing

Satterfield and explaining that its statement that "better work

might have accomplished something material for the defence" is

standard for Saferian requirement that counsel's ineffectiveness
 27

must have deprived defendant of "available, substantial ground

of defence" [citations omitted]); Commonwealth v. Marinho, 464

Mass. 115, 129 (2013) (same); Commonwealth v. Dargon, 457 Mass.

387, 403 (2010) (same); Commonwealth v. Urena, 417 Mass. 692,

701 (1994) (same). But, when viewed in the context of the

opinion in Satterfield, the words that have subsequently been

described as a prejudice standard appear to be simply a minimum

threshold for a showing of prejudice, which in that case the

defendant failed to meet. See Satterfield, supra.12

In other cases, we have drawn parallels between the second

prong of the Saferian test and the standard that applies where a

claimed error that defense counsel failed adequately to

12
In reviewing convictions of murder in the first degree,
where we determine pursuant to G. L. c. 278, § 33E, whether
there has been a substantial likelihood of a miscarriage of
justice, we have declared that "a new trial is called for unless
we are substantially confident that, if the error had not been
made, the jury verdict would have been the same." Commonwealth
v. Alcide, 472 Mass. 150, 157 (2015), quoting Commonwealth v.
Spray, 467 Mass. 456, 472 (2014). We have also said that a new
trial is required where the error "was likely to have influenced
the jury's conclusion." Commonwealth v. Gonzalez, 473 Mass.
415, 421 (2015), quoting Commonwealth v. Wright, 411 Mass. 678,
682 (1992), S.C., 469 Mass. 447 (2014). If we were to apply the
language in Commonwealth v. Satterfield, 373 Mass. 109, 115
(1977) -- "better work might have accomplished something
material for the defense" -- as a prejudice standard, it would
appear to be more favorable to defendants than the Alcide or
Gonzalez standard under § 33E, which would be inconsistent with
our view that the substantial likelihood of a miscarriage of
justice standard applied to § 33E cases is more favorable to a
defendant than the substantial risk of a miscarriage of justice
standard applied to noncapital cases. See Wright, supra at 681.
 28

challenge at trial is raised for the first time on appeal or in

a postappeal motion for a new trial. See Commonwealth v. Azar,

435 Mass. 675, 685 (2002), S.C., 444 Mass. 72 (2005);

Commonwealth v. LeFave, 430 Mass. 169, 173-174 (1999). In those

cases, we have said that the defendant is entitled to a new

trial if there is a substantial risk of a miscarriage of justice

arising from counsel's failure. See Azar, supra; LeFave, supra.

See also Commonwealth v. Robideau, 464 Mass. 699, 705 (2013).

Under that standard, a defendant is entitled to a new trial "if

we have a serious doubt whether the result of the trial might

have been different had the error not been made." Azar, supra,

quoting LeFave, supra at 174. We now declare that this standard

is effectively the same as the prejudice standard under the

second prong of Saferian: where counsel was ineffective for

failing to present an available ground of defense, that defense

is "substantial" for Saferian purposes where we have a serious

doubt whether the jury verdict would have been the same had the

defense been presented.13 The defendant need not prove that he

13
We recognize that the language we adopt for the prejudice
standard under the second prong of the test in Commonwealth v.
Saferian, 366 Mass. 89, 96 (1974) -- "we have a serious doubt
whether the jury verdict would have been the same had the
defense been presented" -- differs slightly from the language of
the substantial risk of a miscarriage of justice standard that
we used in Commonwealth v. Azar, 435 Mass. 675, 685 (2002),
quoting Commonwealth v. LeFave, 430 Mass. 169, 174 (1999) ("we
have a serious doubt whether the result of the trial might have
 29

or she would have been found not guilty if defense counsel had

presented the jury with this ground of defense. See Strickland,

466 U.S. at 693 ("a defendant need not show that counsel's

deficient conduct more likely than not altered the outcome in

the case").

We conclude that the judge erred in finding that counsel's

ineffectiveness did not prejudice the defendant. The judge

recognized that Dr. Uscinski challenged the proposition that the

force produced by shaking a baby alone could have caused

Jahanna's head injuries, but determined that this opinion did

not relate to this case because "there was evidence that Jahanna

was not only shaken but suffered some sort of impact trauma as

well." At trial, however, as earlier noted, Dr. Newton offered

the opinion that the cause of Jahanna's triad of head injuries

was that she was "violently shaken." She did not claim the

skull fracture to be a contributing cause of these injuries

until she testified at the hearing on the motion for a new

trial. Therefore, had Dr. Uscinski's expert testimony been

been different had the error not been made"). We believe the
standards are identical in their application; we have revised
the language only because we think it more clear.
 30

offered at trial, the defendant could have challenged Dr.

Newton's opinion as to the cause of Jahanna's head injuries.14

Nor can we say with confidence that such a challenge to Dr.

Newton's opinion that violent shaking caused Jahanna's head

injuries would not have been persuasive. An expert witness

testifying at trial in October, 2010, once his or her opinion

was challenged on cross-examination, on redirect examination

could have cited to numerous scientific studies supporting the

view that shaking alone cannot produce injuries of the type and

severity suffered by Jahanna.15 Indeed, Dr. Newton herself

14
Dr. Mantagos was a treating physician and did not offer
an opinion as to the cause of Jahanna's retinal hemorrhaging,
but the reasonable takeaway from his testimony was that it was
caused by extreme shaking. Dr. Uscinski's expert testimony
would also have challenged this apparent conclusion.
15
See, e.g., Bandak, Shaken Baby Syndrome: A Biomechanics
Analysis of Injury Mechanisms, 151 Forensic Sci. Int'l 71, 78
(2005) (infant shaking cannot cause serious injuries without
also resulting in neck injury); Ommaya, Goldsmith, & Thibault,
Biomechanics and Neuropathology of Adult and Pediatric Head
Injury, 16(3) Brit. J. of Neurosurgery 220, 233 (2002) (based on
standard biomechanical principles, shaken baby syndrome
hypothesis requires forces that are biomechanically improbable
and increased intracranial pressure is more likely to cause
retinal bleeding than shaking); Duhaime, Gennarelli, Thibault,
Bruce, Margulies, & Wiser, The Shaken Baby Syndrome: A
Clinical, Pathological, and Biomechanical Study, 66 J.
Neurosurgery 409, 413-414 (1987) (subjecting biomechanical model
to repetitive violent shaking demonstrated that shaking fell
below established injury thresholds). See also Cavazos v.
Smith, 132 S. Ct. 2, 10 (2011) (Ginsburg, J., dissenting),
quoting State v. Edmunds, 308 Wis. 2d 374, 386 (2008), and
sources cited ("Doubt has increased in the medical community
 31

appears to have changed her opinion that shaking alone caused

Jahanna's triad of head injuries.

If a defense expert had caused the jury to doubt whether

violent shaking alone could have caused Jahanna's severe

injuries, they may have asked whether there was any

corroborative evidence that Jahanna was slammed against the wall

or thrown to the floor. But Eileen Jeffrey heard nothing

unusual during the ten minutes her husband was gone, even though

the walls between the apartment were thin and sounds could often

be heard from next door. And if the jury had determined that

Jahanna's injuries could not have happened without impact

trauma, they might have considered more carefully whether the

impact trauma described by the defendant -- Jahanna's head-first

fall from the sofa onto the wooden floor -- could have sufficed

to cause her head injuries.

If they had done so, it is likely that the opinion

testimony of such a defense expert would have influenced the

jury's evaluation of whether the Commonwealth had eliminated the

'over whether infants can be fatally injured through shaking
alone'").

A more recent study would also support this proposition.
See generally Jones, Martin, Williams, Kemp, & Theobald,
Development of a Computational Biomechanical Infant Model for
the Investigation of Infant Head Injury by Shaking, 55 Med.,
Sci., & Law 291 (2015) (biomechanical study using computational
model suggests shaking cannot generate levels of force necessary
to produce injuries associated with abusive head trauma).
 32

possibility that Jahanna's injuries were caused by the

accidental fall described by the defendant beyond a reasonable

doubt, such that we have a serious doubt whether the jury's

verdict would have been the same. See Commonwealth v. LaBrie,

473 Mass. 754, 772-774 (2016) (counsel's failure to consult with

independent oncologist likely deprived defendant of substantial

ground of defense on key issue in case -- whether defendant

intended to kill her child by failing to give him prescribed

medication). The judge erred in finding that Dr. Uscinski

"failed to address the severity of Jahanna's injuries." The

judge determined that, although Dr. Uscinski testified that it

was possible to sustain head injuries from an accidental short

fall, he "did not mention whether a fall from such a short

distance could cause the extent of the skull fractures and brain

hemorrhaging that Jahanna suffered." Dr. Uscinski, however,

stated unequivocally in his testimony that a short fall from

seventeen and one-half inches "could account for" the head

injuries that Jahanna sustained. Dr. Uscinski also explained in

detail why Jahanna's comminuted skull fracture could have been

caused by a fall of only seventeen and one-half inches.

Specifically, he stated that "a fracture of this nature can be

sustained from a fall of that distance."

Moreover, an expert witness testifying at trial in October,

2010, could have cited to numerous scientific studies in support
 33

of an opinion that accidental short falls can produce injuries

of the nature and severity suffered by Jahanna.16 Such opinion

16
See, e.g., Roth, Raul, Ludes, & Willinger, Finite Element
Analysis of Impact and Shaking Inflicted to a Child, 121 Int'l
J. Legal Med. 223, 225 (2007) (based on computer simulation,
eighteen inch fall as likely to cause subdural hemorrhage as
shaking); Prange, Coats, Duhaime, & Margulies, Anthropomorphic
Simulations of Falls, Shakes, and Inflicted Impacts in Infants,
99 J. Neurosurgery 143 (2003) (shaking and minor falls produce
similar rotational responses, with falls of only twelve inches
with head impact producing accelerations in excess of those
produced during shaking); Hymel, Jenny, & Block, Intracranial
Hemorrhage and Rebleeding in Suspected Victims of Abusive Head
Trauma: Addressing the Forensic Controversies, 7 Child
Maltreatment 329 (2002)(describing two cases of serious head
trauma from accidental short falls); Jenny, Shams, Rangarajan, &
Fukuda, Development of a Biofidelic 2.5 kg Infant Dummy and Its
Application to Assessing Infant Head Trauma During Violent
Shaking, Injury Biomechanics Research, Proceedings of the
Thirtieth International Workshop, at 138 (Nov. 10, 2002) (based
on biomechanical experiment, maximum head center of gravity
acceleration produced by shaking less than one-third of that
produced by rolling off sofa); Plunkett, Fatal Pediatric Head
Injuries Caused by Short-Distance Falls, 22 Am. J. Forensic Med.
& Pathology 1, 7-9 (2001) (symptoms attributed to shaken baby
syndrome also found in fatal short falls); Christian, Taylor,
Hertle, & Duhaime, Retinal Hemorrhages Caused by Accidental
Household Trauma, 135 J. Pediatrics 125, 127 (1999) (reporting
three cases of infants between seven months and thirteen months
of age who had retinal hemorrhages after short falls); Hall,
Reyes, Horvat, Meller, & Stein, The Mortality of Childhood
Falls, 29 J. Trauma 1273-74 (1989) (of fatal falls by children
in Cook County, Illinois, during four-year period, forty-one per
cent were minor falls from less than three feet).

More scientific support for this proposition will be
available at a new trial. See Barnes, Imaging of Nonaccidental
Injury and the Mimics: Issues and Controversies in the Era of
Evidence-Based Medicine, 49 Radiologic Clinics of N. Am. 205,
217 (2011) (based on clinical, biomechanical, neuropathological,
and neuro-radiological evidence, significant head injury,
including subdural and retinal hemorrhages, may result from low
level falls); Squier, The "Shaken Baby" Syndrome: Pathology and
 34

testimony would likely have caused a reasonable jury carefully

to consider whether they were certain beyond a reasonable doubt

that Jahanna's head injuries were not caused by the accidental

fall described by the defendant. At the hearing on the motion

for a new trial, Dr. Mantagos said that he "would not expect"

that Jahanna's retinal hemorrhages could have been caused by a

fall of seventeen and one-half inches, and Dr. Newton testified

that it was "very, very unlikely" that the fall could have

caused Jahanna's comminuted skull fracture. But, in the

circumstances of this case, the jury would need to determine

more than whether such injuries were unexpected or very

unlikely; they would need to determine whether they were certain

beyond a reasonable doubt that these injuries were not caused by

an accidental fall from the sofa onto the hardwood floor.

The judge accurately found that, although "Dr. Uscinski

. . . testified that retinal hemorrhaging can be caused by an

increase in intracranial pressure and noted that such increase

was present in [this] case . . . , he did not opine specifically

Mechanisms, 122 Acta Neuropathologica 519 (2011) (same);
Cummings, Trelka, & Springer, Atlas of Forensic Histopathology,
Cambridge Univ. Press (2011) (skull fractures, subdural
hematomas, and retinal hemorrhages have all been found after
short falls); Lantz & Couture, Fatal Acute Intracranial Injury,
Subdural Hematoma, and Retinal Hemorrhages Caused by Stairway
Fall, 56(6) J. Forensic Sciences 1648 (2011) (case study of
infant who fell from short height and had subdural hemorrhage,
midline shift, mild edema, and severe retinal hemorrhages).
 35

as to whether Jahanna's retinal hemorrhages were caused by this

increased intracranial pressure."17 But the judge erred in

concluding that this meant that the defendant was not deprived

of a substantial ground of defense by the failure to retain a

defense expert. The defendant bears the burden of proving the

second prong of the Saferian test, but he may meet this burden

by showing that the poor performance of his attorney deprived

him of expert evidence that would likely have influenced the

jury's conclusion as to whether the prosecution had eliminated

reasonable doubt regarding the cause of Jahanna's retinal

hemorrhages; the defendant is not required conclusively to prove

that the intracranial pressure arising from the accidental fall

was the cause of the retinal hemorrhages. See, e.g.,

Commonwealth v. Polk, 462 Mass. 23, 34 (2012) (evidence

regarding alleged victim in sexual assault case that is

consistent with diagnosis of disorder is "sufficient to permit a

reasonable inference that the alleged victim may have the

disorder"); Commonwealth v. Alvarez, 433 Mass. 93, 103-104

(2000) (new trial ordered for ineffective assistance of counsel

17
Dr. Uscinski testified that a short fall of seventeen and
one-half inches may account for a subdural hematoma (which he
called an "intradural hematoma") like the one sustained by
Jahanna, and that a subdural hematoma, in turn, can cause an
increase in intracranial pressure, which can result in retinal
hemorrhages. Dr. Uscinski noted that the computerized
tomography scans of Jahanna's brain showed an increase in
intracranial pressure.
 36

because "the jury may have ruled differently" if medical

evidence of defendant's brain damage had been properly

investigated, reviewed with the defense expert, and presented at

trial). See also Strickland, 466 U.S. at 693.

We recognize that the testimony of Drs. Newton and Mantagos

regarding the cause of Jahanna's injuries finds support in

scientific research, and that numerous scientific studies were

cited in support of their opinions.18 But a defense expert could

have assisted a competent defense attorney in mounting a

significant challenge to their opinions at trial on cross-

examination by identifying the methodological shortcomings of

18
See, e.g., Trenchs, Curcoy, Morales, Serra, Navarro, &
Pou, Retinal Haemorrhages in Head Trauma Resulting from Falls:
Differential Diagnosis with Non-Accidental Trauma in Patients
Younger Than 2 Years of Age, 24 Child's Nervous System 815, 818-
819 (2008) (study of infants who sustained accidental falls
showed that accidental falls provoked only small, isolated, and
unilateral retinal hemorrhages, whereas inflicted injury caused
bilateral and diffuse retinal hemorrhages); Newton & Vandeven,
Update on Child Maltreatment with a Special Focus on Shaken Baby
Syndrome, 17 Current Opinion in Pediatrics 246, 249 (2005)
(based on review of studies on shaken baby syndrome, retinal
hemorrhage found to be much more common in inflicted than non-
inflicted injuries); Schloff, Mullaney, Armstrong,
Simantirakais, Humphreys, Myseros, Buncie, & Levin, Retinal
Findings in Children with Intracranial Hemorrhage, 109
Ophthalmology 1472, 1475 (2002) ("Our study suggests that
intraretinal hemorrhages in children with intracranial
hemorrhage from causes other than shaken baby syndrome would be
expected in less than [eight per cent] of cases").
 37

the studies they cited.19 A defense expert could also have

assisted a competent defense attorney in highlighting in cross-

examination the studies that recognize the difficulties faced by

physicians in accurately diagnosing the cause of injuries that

19
See, e.g., Vinchon, Defoort-Dhellemmes, Desurmont, &
Dhellemmes, Accidental and Nonaccidental Head Injuries in
Infants: A Prospective Study, 102 J. Neurosurgery: Pediatrics
380, 383 (2005) ("[T]he evaluation of the incidence of [retinal
hemorrhages] in child abuse remains a self-fulfilling prophecy"
because children are diagnosed as being abused "in great part
based on the presence of [retinal hemorrhage]"); Donohoe,
Evidence-Based Medicine and Shaken Baby Syndrome, 24 Am. J.
Forensic Med. & Pathology 239, 240-241 (2003) (performing review
of shaken baby syndrome literature from 1966 through 1998 and
concluding that "there existed serious data gaps, flaws of
logic, inconsistency of case definition, and a serious lack of
tests capable of discriminating [non-accidental injury] cases
from natural injuries. . . . [By 1999] the commonly held
opinion that the finding of [subdural hematoma] and [retinal
hemorrhages] in an infant was strong evidence of [shaken baby
syndrome] was unsustainable"). For example, in one study
seeking to determine whether short falls of children cause
death, after finding an unexpectedly large number of deaths
after reported short falls, the author excluded those deaths
because they assumed those reports to be false. See Chadwick,
Chin, Salerno, Landsverk, & Kitchen, Deaths from Falls in
Children: How Far Is Fatal?, 31 J. Trauma 1353, 1355 (1991).

The challenges to this research have not subsided. See,
e.g., Gabaeff, Exploring the Controversy in Child Abuse
Pediatrics & False Accusations of Abuse, 18 Legal Med. 90, 93
(2016) (documenting unreliability of confessions used in shaken
baby syndrome research); Guthkelch, Problems of Infant Retino-
Dural Hemorrhage with Minimal External Injury, 12 Houst. J.
Health L. & Pol'y 201, 207 (2012) ("[Shaken baby syndrome] and
[abusive head trauma] are hypotheses that have been advanced to
explain findings that are not yet fully understood. . . . [They
are] not proven medical or scientific facts").
 38

allegedly result from child abuse.20 See Commonwealth v. Baran,

74 Mass. App. Ct. 256, 277 (2009) (expert could have

strengthened cross-examination and provided material for

rebuttal). See also Dugas v. Coplan, 428 F.3d 317, 340 (1st

Cir. 2005) (had defense counsel been advised by expert in arson

case, "his cross-examination of the fire investigators could

have been far more pointed").

Considering together the opinion testimony regarding the

cause of Jahanna's head and vertebral injuries that reasonably

could have been offered by a defense expert and the assistance

such an expert could have offered to defense counsel's cross-

examination of the Commonwealth's medical experts, we conclude

20
See, e.g., Christian, Taylor, Hertle, & Duhaime, Retinal
Hemorrhages Caused by Accidental Household Trauma, 135 J.
Pediatrics 125, 127 (1999) (recognizing overlap between
accidental and abusive head injury and cautioning against
presumption of abuse when infants under one year present with
traumatic retinal hemorrhages); Sirotnak, Medical Disorders that
Mimic Abusive Head Trauma, in Abusive Head Trauma in Infants and
Children 191 (2006) (many conditions mimic abusive head trauma);
Barnes, Ethical Issues in Imaging Nonaccidental Injury: Child
Abuse, 13(2) Topics in Magnetic Resonance Imaging 85, 86-87, 91
(2002) (applying standard of evidence-based medicine to shaking
mechanism and concluding that no scientific basis exists
indicating force required to produce traumatic brain injury and
that many conditions mimic child abuse); Case, Graham, Handy,
Jentzen, & Monteleone, Position Paper on Fatal Abusive Head
Injuries in Infants and Young Children, 22 Am. J. Forensic Med.
& Pathology 112, 116-117 (2001) (acknowledging that retinal
hemorrhages have many nontraumatic causes, including increased
intracranial pressure, bleeding disorders, sepsis, meningitis,
and vasculopathies, and that pathogenesis of retinal hemorrhages
is not precisely understood).
 39

that defense counsel's manifestly unreasonable failure to seek

public funds to retain such an expert likely deprived the

defendant of an available, substantial ground of defense.

Because the defendant was deprived of his constitutional right

to effective counsel, we vacate the defendant's convictions and

order a new trial.

We are not the first State Supreme Court to vacate a

conviction because defense counsel was ineffective in failing to

consult with an appropriate medical expert where the theory of

the prosecution's case was that the defendant injured an infant

through violent shaking or blunt force trauma. See, e.g.,

People v. Ackley, 497 Mich. 381, 388-398 (2015); State v. Hales,

152 P.3d 321, 337-344 (Utah 2007). Although each case alleging

abusive head trauma is different and must be evaluated on its

own facts, the legal analysis used by these two courts that

yielded the conclusion that a new trial is in the interests of

justice is similar to our own.

In Ackley, 497 Mich. at 385, defense counsel contacted only

one expert in preparing for trial, who advised counsel that

there was a wide divide within the medical community between

those who believe that an infant's injuries can be caused by a

short distance fall and those who believe that such injuries are

the result of shaking or striking the infant, and that the

divide is so deeply held that it is "like a religion." The
 40

expert told counsel that "he [the expert] was on the wrong side

of this debate to be able to assist the defendant," but

recommended a forensic pathologist who had expertise in short

falls. Id. Defense counsel never contacted this forensic

pathologist or any other expert in short falls, and instead

relied only on the first expert's advice in cross-examining the

prosecution's experts. Id. at 386-387. The Supreme Court of

Michigan concluded that "counsel performed deficiently by

failing to investigate and attempt to secure an expert witness

who could both testify in support of the defendant's theory that

the child's injuries were caused by an accidental fall and

prepare counsel to counter the prosecution's expert medical

testimony." Id. at 389. As to the issue of prejudice, the

court noted that "[t]here was no explanation for the child's

injuries beyond the theories presented by the experts, and the

prosecution produced no witnesses who testified that the

defendant was ever abusive." Id. at 395. The court concluded,

"Had an impartial, scientifically trained expert corroborated

the defendant's theory, the defendant's account of the child's

death would not have existed in a vacuum of his own self-

interest. While we cannot say that a battle of the experts

would have ensured the defendant's acquittal, counsel's failure

to prepare or show up for the battle sufficiently 'undermine[s

our] confidence in the outcome" of this case to entitle the
 41

defendant to relief." Id. at 397, quoting Strickland, 466 U.S.

at 694.

In Hales, 152 P.3d at 328-329, a murder case based on a

theory of shaken baby syndrome, the prosecution at trial relied

primarily on the testimony of experts that CT scans of the

infant showed brain injury consistent with violent shaking. The

theory of the defense was that the infant's injuries were caused

by a "near-miss car accident" hours earlier. Id. at 329. In

support of this theory, defense counsel called an expert witness

who testified that shaking can cause neck injury, but not brain

injury, and that the most likely cause of the child's injuries

was a "near-miss car accident that caused the bruising followed

by a lengthy 'lucid interval.'" Id. Defense counsel, however,

never retained a qualified expert to provide an independent

interpretation of the CT scans and did not put forth any

evidence contradicting the prosecution expert's interpretation

of them. Id. at 329, 340-341. Nor did defense counsel offer

any evidence that his theory of defense comported with the CT

scan evidence. Id. at 340-341. In vacating the conviction, the

Supreme Court of Utah reasoned that "the defense's theory that

the injuries were caused by the near-miss car accident depended

upon convincing the jury that the brain injury shown in the CT

scans could have been caused by an impact injury and would not

have caused immediate unconsciousness as [the State's expert]
 42

had testified." Id. at 340. The court concluded that the

defendant was prejudiced by his counsel's failure because, "had

his trial attorneys sought out an expert analysis of the CT

scans, there was a reasonable probability that they would have

obtained and the jury would have credited [the defense's

competing] expert testimony regarding the timing, nature, and

violence of the injury," which was consistent with the injuries

being caused by the near-miss automobile accident. Id. at 344.

In a policy statement issued in May, 2009, the American

Academy of Pediatrics declared:

"Few pediatric diagnoses engender as much debate as
[abusive head trauma] . . . Controversy is fueled because
the mechanisms and resultant injuries of accidental and
abusive head injury overlap, the abuse is rarely
witnessed, an accurate history of trauma is rarely
offered by the perpetrator, there is no single or simple
test to determine the accuracy of the diagnosis, and the
legal consequences of the diagnosis can be so
significant."

Christian, Block, & Committee on Child Abuse and Neglect of

American Academy of Pediatrics, Abusive Head Trauma in Infants

and Children, Pediatrics, Vol. 123, No. 5, 1409, 1410 (2009).

By vacating the defendant's convictions in this case and

ordering a new trial, we do not claim to have resolved the

ongoing medical controversy as to how often the triad of

symptoms of abusive head trauma are caused by accidental short

falls or other medical causes. We are simply recognizing that

there is a vigorous debate on this subject, that arguments are
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being made on both sides with support in the scientific and

medical literature, that this debate is evolving, and that, in

the circumstances of this case, we do not have confidence in the

justice of these convictions where defense counsel did not

retain an expert to evaluate the medical evidence and, as a

result, the jury heard only one side of this debate. See

Hinton, 134 S. Ct. at 1090 (risk of mistakes by prosecution

experts "is minimized when the defense retains a competent

expert to counter the testimony of the prosecution's expert

witnesses"). See generally Melendez-Diaz v. Massachusetts, 557

U.S. 305, 319 (2009) ("One study of cases in which exonerating

evidence resulted in the overturning of criminal convictions

concluded that invalid forensic testimony contributed to the

convictions in [sixty per cent] of the cases").

2. Sufficiency of evidence of assault and battery of child

causing bodily injury (vertebral fractures). The defendant

claims that his conviction of assault and battery of a child

causing bodily injury (fractured vertebrae) must be reversed and

dismissed because the evidence was insufficient as a matter of

law. In essence, the defendant claims that, because there was

uncertainty in the evidence as to when the vertebral fractures

occurred and what caused them, no reasonable jury could find

beyond a reasonable doubt that these injuries were caused by the
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intentional infliction of force by the defendant on the evening

of October 20 when he was Jahanna's sole caretaker.

In determining whether a defendant is entitled to a

required finding of not guilty, we consider whether, viewing the

evidence in the light most favorable to the Commonwealth, a

reasonable jury could have found the essential elements of the

crime beyond a reasonable doubt. Commonwealth v. Latimore, 378

Mass. 671, 676-677 (1979). At trial, Dr. Newton offered the

opinion that the fractured vertebrae were caused by "some type

of crushing force," which could include the extreme flexion

caused by violent shaking, and that they could not be caused by

the force involved in a short household fall. Although Dr.

Newton admitted that the age of the fractured vertebrae could

not be discerned from the CT scan, a reasonable jury, viewing

the totality of the evidence in the light most favorable to the

prosecution, could have concluded beyond a reasonable doubt that

Jahanna's head injuries were caused by a violent shaking on the

evening of October 20, when the defendant was her sole

caretaker, and that the same shaking that caused these injuries

produced the extreme flexion that fractured her vertebrae.

Therefore, the judge did not err in denying the defendant's

motion for a required finding of not guilty on this indictment.

Conclusion. For the reasons stated above, the judge's

order denying the motion for a new trial is reversed, and the
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judgments of conviction are vacated. The case is remanded to

the Superior Court for a new trial on these two indictments.

So ordered.