Ineffective-assistance-of-counsel-for-failure-to-present-counter-expert-testimony-on-shaken-baby-syndrome

Questions Presented For Review Addressing what has become best known as “Shaken Baby Syndrome” (SBS), in Cavazos v. Smith, Justice Ginsburg observed that “[d]oubt has increased in the medical community ‘over whether infants can be fatally injured through shaking alone.” 565 U.S. 1, 13 (2011) (Ginsburg, J., joined by Breyer and Sotomayor, JJ., dissenting) (quoting State v. Edmunds, 2008 WI App. 33, 415, 308 Wis.2d 374, 385, 746 N.W.2d 590, 596 (2008)). That is because [b]y the end of 1998, it had become apparent that “there was inadequate scientific evidence to come to a firm conclusion on most aspects of causation, diagnosis, treatment, or any other matters pertaining to SBS,” and that “the commonly held opinion that the finding of subdural hemorrhage and_ retinal hemorrhage in an infant was strong evidence of SBS was unsustainable.” “Head acceleration and velocity levels commonly reported for SBS generate forces that are far too great for the infant neck to withstand without injury. An SBS diagnosis in an infant without cervical spine or brain stem injury is questionable and other causes of the intracerebral injury must be considered.” Cavazos, 565 U.S. at 13 (Ginsburg, J., dissenting) (quoting Donohoe, Evidence-Based Medicine and Shaken Baby Syndrome, Part I: Literature Review, 1966-1998, 24 Am. J. Forensic Med. & Pathology 239, 241 (2003), and Bandak, Shaken Baby Syndrome: A Biomechanics Analysis of Injury Mechanisms, 151 Forensic Sci. Int’] 71, 78 (2005)) (citations, footnotes, brackets, and ellipses omitted). The views of the dissenting Justices in Cavazos v. Smith have been embraced by state courts of last resort and a United States Circuit Court. See, e.g., People v. Ackley, 497 Mich. 381, 870 N.W. 2d 858 (2015); Commonwealth v. Millien, 474 Mass. 417, 50 N.E. 3d 808 (2016); Commonwealth v. Epps, 474 Mass. 743, 53 N.E. 3d 1247 (2016); and Ceasor v. Ocwieja, 655 F. App’x 263, 2016 WL 3597633 (6th Cir. 2016). See also People v. Bailey, 144 A.D. 3d 1562, 41 N.Y.S. 3d 625 (4th Dep’t 2016); and State v. Edmunds, supra, This petition presents two questions for review: 1. In an SBS prosecution, where defense counsel neither calls, nor consults with, an SBS expert to counter the prosecution’s expert testimony on the “triad’findings of retinal hemorrhage, cerebral edema, and subdural hematoma, does such attorney’s performance fall within the “rare” types of situations envisioned in Harrington v. Richter, 562 U.S. 86, 106 (2011) and Strickland v. Washington, 466 U.S. 668, 689 (1984) in which defense counsel can be found ineffective for failing to present counter expert testimony?; and 2. If so, where a defense attorney neither presents nor seeks such readily available counter-expert testimony demonstrating that a conviction based on the triad has become “unsustainable” since 1998, does a presumption of ineffective assistance of counsel arise under Strickland?