Court Orders New Trial Due to Defense Failure to Consult Medical Expert

Commonwealth v. Milliens (2016)

by David S. Marshall

A court has vacated a conviction for assault and battery of a child, and has ordered a new trial, because the defendant’s attorney failed to call an expert witness to the stand. An expert witness would have offered another perspective on whether the child’s injuries were caused by abuse.

Milliens’s six-month-old daughter was rushed to the hospital one evening after she suffered serious injuries and went unconscious. Milliens claimed that his daughter’s accidental fall from the couch must have caused the injuries.

A doctor at the hospital concluded that the injuries were more likely caused by child abuse. The girl had a subdural hematoma, retinal hemorrhages, and swelling of the brain. This is “the triad,” the three symptoms said by many doctors to make up “shaken baby syndrome,” or SBS. The examining doctor was thus opining that someone had shaken the child hard enough to injure her brain.

Some members of the medical community deny that shaking a baby can really be inferred from these three symptoms.

At the Marshall Defense Firm in Seattle, it has been our privilege to fight to establish the innocence of persons accused of shaking babies in Washington State. In doing so we work with the leading American physicians who are willing to stand up to the medical establishment.

At Milliens’s trial, the prosecutor called two medical expert witnesses. Dr. Mantagos testified that the child’s injuries were consistent with SBS, and that the injuries would be consistent with an accidental fall only in specific circumstances, such as falling from a swing to cement.

The second expert witness, Dr. Newton, testified that there was no explanation for the three symptoms other than violent shaking.

The defense attorney did not call a medical expert witness.

The jury found Milliens guilty of Assault and Battery on a Child Causing Bodily Injury. Milliens moved for a new trial, claiming that his attorney was ineffective for failing to call an expert witness to rebut the prosecution’s expert testimony.

The judge denied the motion for a new trial, reasoning that even if an expert testified about alternative causes of the child’s injuries, the jury would likely still have found Milliens guilty.

The supreme court did not agree. It found that the judge erred in denying the motion for new trial.

Under the Sixth Amendment to the U.S. Constitution, a criminal defendant has the right to effective assistance of counsel. Counsel can be considered ineffective if, but for the attorney’s error, the outcome of the trial might have been different.
In Milliens’s case, the judge erred in finding that the outcome would not have changed with a defense expert witness. Had a doctor persuasively testified as to alternative causes of the child’s injuries, the jury could have had reasonable doubt that shaking caused the injuries.

The court vacated the conviction and remanded the case for a new trial.

This case is among the SBS news reported by writer Sue Luttner here.