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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 "wellvisit" 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 peerreviewed 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 crossexamination 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 noninflicted 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 crossexamination 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 RetinoDural 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 crossexamination 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 selfinterest. 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 
43

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 
44

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.