Dedrick Fisher and shaken baby prosecutions

Patrick Clayborn, Pre-court-martial hearing held for Fort Rucker soldier, 11 February 2009.

So called shaken-baby cases can be difficult. The evidence of nexus between acts alleged and injury or death can be ambiguous and subject to interpretation, or in some cases overpowering.

There are several cases worth reading in this area, Warner, in particular is useful because the holdings of Warner are useful for any case in which the defense and prosecution need to have expert assistance. Warner was itself a shaken-baby case. In Warner the prosecution had obtained one of the best experts possible for itself and then tried to foist an unqualified “expert” on the defense. The bottom line from Warner is what I refer to as a rule of approximate parity in experts, in situations where the prosecution has experts. Of course this remains a troubling aspect of the trial counsel being an entry point and key to the defense access to witnesses in general, not just experts. See United States v. Warner, 62 M.J. 114 (C.A.A.F. 2005). Lest the prosecution resort to United States v. Short, as justifying them having a really good expert and the defense not, the court in Warner points out that:

The Court then cautioned, “This is not to say, of course, that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own.” So the legal issue in Short, Burnette, [29 M.J. 473 (C.M.A. 1990)] and Ake [Ake v. Oklahoma, 470 U. S. 68 (1985)] was distinct from the issue in this case, which concerns Article 46. Providing the defense with a “competent” expert satisfies the Government’s due process obligations, but may nevertheless be insufficient to satisfy Article 46 if the Government’s expert concerning the same subject matter area has vastly superior qualifications.

United States v. Warner, 62 M.J. 114, 119 (C.A.A.F. 2005). [*]

The court in Warner points out tha:the prosecution, “labors under no similar burden to demonstrate necessity before securing its own experts.” United States v. Warner, 62 M.J. at 122. And I would add usually fails to comply with R.C.M. 703(d) when seeking non-government experts.

United States v. Bresnahan, 62 M.J. 137 (C.A.A.F. 2005), is another shaken-baby case, because one of the issues was expert assistance, although respect to false/coerced confession theory and experts. In this case the defense theory at trial was “the wife did it,” not the accused and he falsely confessed. Interestingly the C.A.A.F. found the denial of expert assistance, “a close call. Just as we hold that the military judge did not abuse his discretion by denying the request, we would also conclude that the military judge would not have abused his discretion had he granted the request. United States v. Bresnahan, 62 M.J. 137, 143 (C.A.A.F. 2005). The lesson here is to make a full court press to demonstrate through testimony, witnesses, and expert assistance that the client is submissive to authority. The military is, of course, a culture that requires submission to authority, some are just more amenable than others for psychological reasons. In Bresnahan there was competing testimony of the existence and cause of death by shaken-baby “syndrome.”

In United Sates v. Harrow, 65 M.J. 190 (C.A.A.F. 2007), the defense theory seemed to be that the father did it (SODDI). Of interest in this case is a frequent evidentiary issue regarding use of prior out of court statements to impeach or rehabilitate. Note:

[T]he military judge appears not to have understood that an inability to recall or a “non-responsive” answer may present an inconsistency for purposes of M.R.E. 613. Consequently, his evidentiary ruling, based on an incorrect understanding of the law, was an abuse of discretion.

United States v. Harrow, 65 M.J. at 200.

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