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Derick Epps

Other Shaken Baby Syndrome Exonerations
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On October 9, 2004, Sara Comeau telephoned 911 in Haverhill, Massachusetts asking for emergency assistance. She said her two-year-old daughter, Veronica Gonzalez, had fallen down the stairs.

The child was taken to Lawrence General Hospital. Veronica was unresponsive and appeared to be suffering from a brain injury. She was then flown to Boston Children’s Hospital where a CT scan showed significant swelling in Veronica’s brain. She was taken to the operating room and underwent a craniotomy to relieve pressure from brain bleeding.

After the surgery, Dr. Celeste Wilson, Associate Medical Director of the Child Protection Program at the hospital, examined Veronica. She found her eyes unresponsive and bruising over her right eye, under her chin, and on her back. An ophthalmologist found 12 retinal hemorrhages in Veronica’s right eye and five in her left.

Wilson concluded that the injuries were consistent with Shaken Baby Syndrome (SBS) and that the child had been violently shaken.

SBS was a term coined to describe a condition first articulated in 1971. SBS was said to arise when an infant was shaken so hard that the brain rotated inside the skull, causing severe and potentially deadly brain injury, but often without any external signs of harm. SBS was said to involve a telltale “triad” of symptoms—brain swelling, brain hemorrhaging, and retinal hemorrhaging. When present in an infant, this triad of symptoms was said to indicate that the child had been violently shaken. According to prevailing medical wisdom at the time, no other injuries or pathologies could cause these three symptoms to occur at the same time. Moreover, it was thought that a victim of SBS became unresponsive immediately, and therefore the last person to have physical care of the baby must have caused the injuries.

Comeau told police she had left for work as a certified nurse assistant at a nursing home early in the morning and left Veronica and her four-year-old sister, Delilah, in the care of her live-in boyfriend, 27-year-old Derick Epps. She said that a friend of Epps, Jason Fletcher, came to her work and told her that Veronica was hurt, so she rushed home and called 911.

Epps told police that when Comeau went to work, the girls were still in bed. About two hours later, after the girls woke up, he sent Veronica downstairs while he went into the bathroom. He said he heard a cry and found Veronica crying at the bottom of the stairs. Epps said that he thought she had fallen down two or three wooden stairs.

Epps told police that Veronica said she was fine. She then got onto a stool in the kitchen and ate cereal while Epps was playing a video game. When Veronica tried to get down from the stool by herself, she fell, Epps said.

Epps said he picked her up, and saw a small red mark on the left side of her forehead. She cried briefly but then said that she was okay. Epps said he gave Veronica some juice and put her on the couch. She started coughing and vomited, so Epps cleaned up the mess and gave Veronica a bath.

He said Veronica and Delilah were playing upstairs when Fletcher came over, and they began playing a video game downstairs. At some point, he heard a loud “boom” and then Delilah called down, saying that Veronica had fallen. Epps said he went upstairs and found Veronica unresponsive on the floor. He said he began performing cardiopulmonary resuscitation and told Fletcher to go get Comeau.

Based on Wilson’s conclusion that Veronica had been shaken, Epps was charged with assault and battery on a child with substantial injury. Comeau was charged with child endangerment.

Shortly thereafter, the Essex County District Attorney’s Office dismissed the charge against Comeau when she agreed to testify for the prosecution.

In July 2007, Epps went to trial in Essex County Superior Court.

Comeau testified that Veronica was an active, clumsy child who was always banging into things, getting bruised, and falling down. She said that Veronica and Delilah frequently jumped off the couch and their bed, and fought with each other. Comeau also said she had given Veronica a bicycle in June 2004, and that Veronica fell off and broke her arm.

Comeau told the jury that in August or September 2004, Epps told her he had slapped Veronica between her legs and buttocks. Comeau testified that she saw a “big red welt and a hand-print” on Veronica’s body.

Dr. Wilson testified that based on her examination, Veronica had been violently shaken while in Epps’s care. She told the jury that she believed it was extremely unlikely that one or more falls of three feet or down multiple stairs were the cause of the injuries.

As a result of her injuries, Veronica suffered brain damage, was left paralyzed on the right side of body, and was unable able to walk.

Epps’s defense lawyer did not challenge Dr. Wilson’s conclusion. Instead, he contended that Comeau had inflicted the injuries.

In final argument to the jury, the prosecutor said that “even the clumsiest two-year-old, even one who's fallen off a 30-inch stool or a couple of steps is not left with parts of her brain that have literally died off.”

The prosecutor said that for the injuries to have been caused by a fall, “the stool would have to be 70 feet tall” or to have been suffered in a “car crash where the child is thrown from the car. Or when a caretaker takes the child, takes this child, and shakes her so violently that it inflicts those rotational forces on her brain and in her brain and leaves her with these injuries.”

On July 18, 2007, the jury convicted Epps of assault and battery on a child with substantial injury. He was sentenced to seven to 10 years in prison.

Epps subsequently filed a motion for a new trial asserting that subsequent research had produced substantial evidence that injuries that had been diagnosed in the past as the result of Shaken Baby Syndrome could easily be the result of falls from very short distances.

At an evidentiary hearing on the motion, Epps’s trial lawyer, Lawrence McGuire, said he made a strategic decision not to challenge the SBS diagnosis. He said he knew that Dr. Wilson had testified in SBS cases, but assumed she was impartial. Other lawyers had advised him that opposition to SBS was “subject to question,” and that presenting an opposing doctor might prompt the prosecution to call a counter-expert.

McGuire said that in a battle of the experts, the jury “loses sight of what's really at stake. And sometimes the experts are a wash.”

He testified that he retained pathologist Edward Sussman, with whom he had previously worked, although he knew Sussman believed that SBS was a valid diagnosis. McGuire said he knew of one expert who opposed SBS as a diagnosis—Dr. John Plunkett. However, Sussman told him that Plunkett's opinions had been refuted, which was incorrect.

McGuire testified that he did not ask whether other SBS opponents might have been helpful witnesses, and that although he read literature on the diagnoses, he did not contact the authors. He did not obtain Veronica’s brain scans nor were copies provided to Sussman. He said Sussman concluded that Veronica suffered a blow to the left temporal lobe of the brain and he also found evidence of shaking. He also told McGuire he did not believe that she had fallen from a great enough distance to cause the injuries, so he did not call him as a witness.

Dr. Joseph Scheller, a pediatrician and child neurologist, testified for Epps at the hearing and ruled out shaking as the cause of Veronica’s injuries. He testified that “if the whole brain is being shaken, you can’t get one side of the brain being more affected than the other.” He said a subdural hemorrhage had exerted enough pressure to push the left side of Veronica's brain into the right side. Using the CT scan, he showed that the hemorrhage had occurred at a place on the brain where it was impossible to have been caused by shaking.

Scheller testified that at the time of Epps’s trial, virtually all pediatricians and child abuse specialists believed that SBS existed. He said that a significant minority had since agreed that the science behind the diagnosis was doubtful. Scheller noted that in 2009, the American Academy of Pediatrics declared that because of questions of scientific accuracy and scientific basis, the term was being altered to Abusive Head Trauma. This new term implied that the injuries could be created by other factors besides shaking, including accidents.

Scheller also testified that it was hard to imagine a child more than three months old, let alone two years old, suffering head injury from violent shaking because by then the neck would be strong enough to keep the head from bouncing back and forth. Moreover, Scheller said that Veronica’s injuries could have been caused by a fall of 2½ to three feet or down the stairs.

After the hearing concluded in May 2013, Essex County Superior Court Judge David Lowy denied the motion for a new trial, ruling that the evidence was not newly discovered—as required for post-conviction petitions. Five of the seven articles that Scheller cited were published prior to Epps’s trial, Lowy noted. The judge also found that even if the evidence was newly discovered, the defense claim that the views of Dr. Plunkett and Dr. Scheller were “widely accepted is not credible.” On December 3, 2013, Epps was released from prison on parole.

Epps’s lawyer, Harold Hirsch, appealed Judge Lowy’s ruling and in April 2015, the Massachusetts Appeals Court upheld it. Hirsch appealed to the Massachusetts Supreme Judicial Court, which on July 14, 2016 reversed Judge Lowy’s decision and ordered a new trial. The court noted, “Since the defendant’s trial, several additional studies have been published that provide further support for the view that subdural hematomas, retinal hemorrhages and other forms of significant head injury can result from accidental short falls. More research also has been conducted that casts doubt on the view that shaking alone can cause serious head injury. And more articles have been published in medical and scholarly journals questioning the diagnostic significance of symptoms previously thought indicative of Shaken Baby Syndrome.”

The court said that it had concluded that Epps 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.”

On August 22, 2016, the prosecution elected not to prosecute the case any further.

– Maurice Possley

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Posting Date: 10/7/2018
State:Massachusetts
County:Essex
Most Serious Crime:Child Abuse
Additional Convictions:
Reported Crime Date:2004
Convicted:2007
Exonerated:2016
Sentence:7 to 10 years
Race:Black
Sex:Male
Age at the date of crime:27
Contributing Factors:False or Misleading Forensic Evidence, Inadequate Legal Defense
Did DNA evidence contribute to the exoneration?:No