State’s highest court again orders new trial in child abuse case

The state’s highest court ruled that a man convicted of violently shaking his girlfriend’s toddler daughter should get a new trial, in part because of advances in medical research of so-called shaken-baby syndrome.

Derrick Epps was convicted of assault and battery on a child causing substantial bodily injury after the trial in Essex County Superior Court in 2007. He was sentenced to seven to 10 years in prison.

Prosecutors said Epps violently shook the two-year-old, identified only as Veronica, based on medical testimony. She was flown to Boston Children’s Hospital, and doctors said her injuries were consistent with what’s known as shaken-baby syndrome.

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Today, Veronica is cognitively limited, paralyzed on the right side of her body and cannot walk.

Epps said hours before the girl’s symptoms started, she’d fallen down wooden stairs and fallen off a kitchen stool before she collapsed as she played with her four-year-old sister.

Epps’ attorneys did not present medical testimony to contradict the doctor who testified about the alleged abuse, nor did they obtain copies of the girls’ CT scans.

The SJC decision, written by Chief Justice Ralph Gants, notes that changing medical research on child abuse, as well as the defense attorney’s failure to find an expert at the time, mean that Epps must have a new trial.

“It suffices that we conclude that the defendant was deprived of a defense from the confluence of counsel’s failure to find such an expert and the evolving scientific research that demonstrates that a credible expert could offer important evidence in support of this defense,” Gants wrote.

Gants noted that since the trial, several studies have been published showing that short accidental falls can create the same symptoms attributed to shaken-baby syndrome.

“More research has also been conducted that casts doubt on the view that shaking alone can cause serious head injury,” he wrote.

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The case will go back to Essex County Superior Court.

Essex County Superior Court Judge David Lowy presided over Epps trial and denied the initial 2011 motion for a new trial. Lowy was nominated by Governor Charlie Baker for a seat on the SJC in June.

This is the second shaken-baby case overturned recently by the SJC. In June, the court ordered a new trial for Oswelt Milien, who was convicted in Middlesex County in 2010 of violently shaking his daughter. Gants also wrote that decision, which echoed the same issues raised in the Epps case.

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