amicus curiae the innocence network's memorandum...

IN THE SUPREME COURT OF OHIO

STATE OF OHIO,

Plaintiff-Appellee,

v.

ADAM L. JONES,

Defendant-Appellant.

Case No. 2018-0502

On Appeal from the Miami County Court of Appeals, Second Appellate District Case No. 16 CA 00022

AMICUS CURIAE THE INNOCENCE NETWORK'S MEMORANDUM IN SUPPORT OF JURISDICTION

ANTHONY E. KENDELL (0067242) Miami County Prosecutor

JANNA PARKER (0075261) Assistant Prosecuting Attorney (COUNSEL OF RECORD)

201 West Main Street- Second Floor Troy, Ohio 45373 (937) 440-5963 (937) 440-5961- Fax

COUNSEL FOR STATE OF OHIO

OFFICE OF THE OHIO PUBLIC DEFENDER

NIKKI TRAUTMAN BASZYNSKI (0091085) Assistant State Public Defender

250 East Broad Street- Suite 1400 Columbus, Ohio 43215 (614) 466-5394 (614) 752-5167- Fax [email protected]

COUNSEL FOR ADAM L. JONES

BRIAN C. HOWE (0086517) Rosenthal Institute of Justice/ Ohio Innocence Project University of Cincinnati College ofLaw P.O. Box 210040 Cincinnati, Ohio 45221 (513) 556-4276 (513) 556-0702- Fax

COUNSEL FOR AMICUS CURIAE THE INNOCENCE NETWORK

TABLE OF CONTENTS Page No.

TABLE OF CONTENTS .............................................................................................................. i

STATEMENT OF AMICUS INTEREST ................................................................................... 1

STATEMENT OF THE CASE AND FACTS ............................................................................. 1

ARGUMENT .................................................................................................................................. 3

PROPOSITION OF LAW I:

A defendant is prejudiced when counsel fails to present credible exculpatory expert testimony in a case based solely on unrebutted expert testimony ............................................................................ 3

PROPOSITION OF LAW II:

A trial court's credibility assessments of expert medical testimony must be supported by competent, credible evidence .............................................................................................................................. 3

CONCLUSION ............................................................................................................................ 15

CERTIFICATE OF SERVICE .................................................................................................. 16

STATEMENT OF INTEREST OF AMICUS CURIAE THE INNOCENCE NETWORK

The Innocence Network (the "Network") is an association of more than sixty organizations

dedicated to providing pro bono legal and investigative services to convicted individuals seeking

to prove their innocence. The sixty-six current members of the Network represent hundreds of

prisoners with innocence claims in all 50 states and the District of Columbia, as well as Canada,

the United Kingdom, Ireland, Australia, New Zealand, and the Netherlands. Based on its

experience exonerating innocent individuals and examining the causes of wrongful convictions,

the Network has become keenly aware of the role that unreliable or improper scientific and medical

evidence has played in producing miscarriages of justice, particularly in cases such as the instant

case where the prosecution is entirely dependent on expert opinions. The "science" underlying

such convictions has been exposed as flawed, disputed, or outright false.

In approximately half ofthe over 330 convictions later overturned through DNA

evidence in the United States, flawed or inaccurate forensic and/or medical evidence played a

role in the wrongful conviction. Therefore, especially in science-dependent cases such as the

present one, the Network is committed to ensuring, as an essential component of a fair and just

determination of the facts, that convictions are premised upon accurate scientific and medical

evidence-an interest directly implicated in Mr. Jones's case.

STATEMENT OF THE CASE AND FACTS

Amicus curiae hereby adopts the statement of the case and facts set forth in Appellant

Adam L. Jones's memorandum in support of jurisdiction.

1

INTRODUCTION

Prosecutions based on the disputed scientific or medical hypothesis of shaken baby

syndrome or abusive head trauma ("SBS/ AHT") pose a serious risk of wrongful conviction. Here,

the State's medical expert testified that Mr. Jones must have intentionally caused injury to

"Marianne" based on the assumption that there could be no explanation for her symptoms other

than intentional abuse. Put simply, this explanation exceeds the limits of science.

The risk that invalid scientific or medical testimony results in wrongful conviction is

especially high when the prosecution relies exclusively-or nearly so-on expert opinion. The

scientific and medical community now recognize that the so-called "SBS/ AHT hypothesis" leads

to scientifically unsupportable conclusions premised on deeply flawed research. Further, given that

Marianne1 was a four-year-old child with a documented genetic condition, had undergone more

than 20 surgeries, and was recently admitted to the hospital because of a complicated nasal fracture

that resulted in a serious infection, the ability to conclude to a reasonable degree of medical

certainty that intentional abuse was the cause of her injury to the exclusion of all others was

impossible.

Inadequate representation compounds this danger when questionable forensic or medical

evidence is not rigorously tested. In particular, a defense lawyer's failure to investigate or present

a viable scientific defense is manifestly umeasonable, contrary to the Sixth Amendment's

guarantee of effective assistance, and just the sort of conduct that can lead to wrongful convictions.

When prosecution witnesses give incorrect and unsupported testimony that could have been

rebutted by an appropriate defense expert, it is ineffective for a lawyer to fail to address it. Mr.

1 Because the Second District Court of Appeals refers to the alleged victim in the case as "Marianne," counsel will use the same nomenclature here.

2

Jones's trial counsel could have effectively rebutted the incorrect testimony in this case with the

assistance of appropriate experts. Appropriate expert testimony would have made a meaningful

difference in Mr. Jones's defense; the failure to consult with or call such experts is ineffective

assistance of counsel.

ARGUMENT

PROPOSITION OF LAW I

A defendant is prejudiced when counsel fails to present credible exculpatory expert testimony in a case based solely on unrebutted expert medical testimony.

PROPOSITION OF LAW II

A trial court's credibility assessments of expert medical testimony must be supported by competent, credible evidence.

I. Prosecutions Based On The SBS/AHT Hypothesis Pose A Serious Risk of Wrongful Conviction

False or misleading forensic evidence-like the expert medical testimony on which Mr.

Jones's conviction was based-contributed to the underlying conviction in 525 of the 2196

exonerations in the United States to date. See National Registry of Exonerations, available at

https://www.law.umich.edu/special/exoneration/Pages/browse.aspx?View={B8342AE7-6520-

4A32-8A06-

4B326208BAF8}&FilterFieldl=Contributing%5Fx0020%5FFactors%5Fx0020&FilterValuel=F

alse%20or%20Misleading%20 F orensic%20Evidence.

The perils of invalid scientific and medical testimony are amplified in cases where, as here,

the prosecution relies entirely on expert opinions to attempt to prove the elements of a crime and

the identity of a perpetrator. Cases alleging unwitnessed child abuse, especially those dependent

on the so-called "SBS/ AHT hypothesis," carry a great danger of wrongful conviction. See Deborah

3

Tuerkheimer, Science-Dependent Prosecution and the Problem ofEpistemic Contingency: A Study

of Shaken Baby Syndrome, 62 Ala.L.Rev. 513 (2011). In SBS/AHT cases like Mr. Jones's, the

problematic, untested, and highly controversial SBS/AHT hypothesis is used as the foundation for

every element of the alleged offense; oftentimes, no other evidence is offered to corroborate or

establish proof of guilt.

In its classic form, the SBS/ AHT hypothesis suggests that abuse by shaking can be

diagnosed when the infant presents with a so-called "triad" of findings: (1) subdural hematoma,

(2) retinal hemorrhage, and (3) cerebral edema or encephalopathy. The classic SBS/AHT

hypothesis further holds that such findings occur immediately after abuse and have no other causes,

so when an infant presents with this triad, adherents to the SBS/AHT hypothesis claim the only

explanation is that the last person with the child before that child's collapse must have subjected

the child to violent shaking, or shaking with impact.

Cases premised on the SBS/ AHT hypothesis typically follow three steps. First, the

prosecution calls a physician to testify regarding the cause and manner of the child's death or

injuries and to opine that the child's observed medical condition could have been caused only by

shaking, or shaking with impact. Second, the testifying expert tells the jury that the last person

physically with the child had to be the abuser because the child would have exhibited symptoms

immediately upon infliction of the abuse. Finally, the prosecution's expert testifies about the

defendant's state of mind, claiming that the injuries in question required such massive force that

they could only have occurred through an intentional act. Keith A. Findley, et al., Shaken Baby

Syndrome, Abusive Head Trauma, and Actual Innocence: Getting It Right, 12 Hous. J. Health L.

& Pol'y 209 (2012); Deborah Tuerkheimer, The Next Innocence Project: Shaken Baby Syndrome

and the Criminal Courts, 87 Wash. U. L. Rev. 1 (2009).

4

This is precisely the pattern the State followed in this case. Here, Dr. Makoroff, the State's

child abuse expert, testified that the only possible explanation for Marianne's injuries was an

intentionally abuse act, which she suggested was a shaking, or "shaking with impact," due to the

specific symptoms with which she presented. Trial Tr. Vol. 2, 63-64, 68, 78, 80, 86. The State

relied upon that conclusion, in addition to Dr. Makoroffs testimony that the symptoms would have

appeared immediately after the shaking, to inculpate Mr. Jones. !d. at 96. Based on today's

understanding of shaken-baby syndrome and abusive head trauma ("SBS/ AHT"), it is clear that

this type of testimony is deeply flawed because, put plainly, it exceeds the limits of science.

Commentators and researchers in the field of SBS/AHT, including the most ardent

supporters of the SBS/AHT hypothesis, acknowledge that circularity plagues the research and that

it is difficult to conduct high-quality, unbiased research on the effects of shaking on infants.

Sandeep Narang, A Daubert Analysis of Abusive Head Trauma/Shaken Baby Syndrome, 11 Hous.

J. Health L. & Pol'y 505, 529-32 (2011); Findley at 236. While these challenges highlight the

deficiencies in the underpinnings of the hypothesis, they cannot excuse criminal convictions based

on inadequate, methodologically questionable research. And while advocates of the classic

hypothesis call instead for reliance on the clinical judgment of examining physicians in the absence

of a robust scientific foundation, as the Supreme Court has made clear, the ipse dixit of a group of

purported experts cannot on its own suffice to establish reliable scientific evidence. Kumho Tire

Co. v. Carmichael, 526 U.S. 137, 157 (1999).

In light of the dispute and evolving understanding in the medical community with respect

to the SBS/ AHT hypothesis, courts around the country have begun to reverse convictions based

on SBS diagnoses by medical experts. Recognizing the recent developments in evidence-based

medicine and biomechanical research, courts have begun to question the viability of the SBS/ AHT

5

hypothesis as utilized in criminal prosecutions. See, e.g., Del Prete v. Thompson, 10 F. Supp. 3d

907, 957 n.lO (N.D. Ill. 2015), Wisconsin v. Edmunds, 308 Wis. 2d 374, 391-92 (Wis. Ct. App.

2008), People v. Bailey, 47 Misc. 3d 355, 374 (N.Y. Sup. Ct. 2014). In a 2011 dissent, U.S.

Supreme Court Justice Ginsburg observed that "[b]y the end of 1998, it had become apparent that

... the commonly held opinion that the finding of[subdural hemorrhage] and [retinal hemorrhage]

in an infant was strong evidence of SBS was unsustainable." Cavazos v. Smith, 132 S. Ct. 2, 10

(2011) (Ginsburg, J., dissenting).

The recent and escalating judicial recognition of developments in the scientific

understanding of the SBS/ AHT hypothesis undermine the validity of convictions secured wholly

or in large part on the basis of this theory. Convictions like Mr. Jones's, based exclusively on the

SBS/ AHT hypothesis, lack the scientific foundation necessary to sustain a diagnosis of SBS/ AHT

and, it surely follows, guilt beyond a reasonable doubt.

II. Inadequate Defense Representation Contributes To Wrongful Convictions, Especially When Questioned Forensic Evidence Is Not Rigorously Tested.

Poor lawyering is a major cause of wrongful convictions across the country. In the

National Registry of Exonerations, 547 ofthe 2196 known exonerations in the United States

have inadequate legal defense as a contributing factor. See National Registry of Exonerations,

available at https://www.law.umich.edu/speciallexoneration/Pages/browse.aspx. Given the dearth

of direct evidence introduced against Mr. Jones and the deeply flawed medical testimony relied

upon by the prosecution, the dangers of ineffective assistance of defense counsel make this

Court's intervention critical.

A. The State's Expert Testimony Was Critically Flawed

There is no test for Shaken Baby Syndrome, and its proponents struggle to find

standardized diagnostic criteria, meaning that SBS/ AHT looks different to different health care

6

providers. There is no medical test to definitively determine that a medical finding is the result of

intentional abuse. Instead, Dr. Makoroff, and later Dr. Shapiro, arrived at the theory of abuse by

claiming to have ruled out all other possible causes for Marianne's medical findings. This type of

claim is always best approached with caution, but in this case, given Marianne's multiple serious

medical conditions, it is particularly untrustworthy.

1. Marianne's Medical Findings Have Credible Non-Abuse Explanations

Chronic Subdural. The Upper Valley Medical Center records revealed that Marianne's

CT scan showed an "acute on chronic" subdural hematoma (old blood and new blood within the

subdural hematoma). Postconviction Petition, Ex. E; May 8, 2015 Hr'g Tr. 26-29. Dr. Rothfeder

explained that a chronic subdural hematoma could have been responsible for the new bleeding

Marianne suffered on August 5:

Once a chronic subdural forms, a membrane forms over the subdural and the membrane contains tiny little immature blood vessels and those -those vessels are subject to rebleeding and it's thought that rebleeding in these instances, in these small blood vessels in the membrane of the subdural can- it's thought that those things- that rebleeding of these things can occur in the absence oftrauma, spontaneously or with mild trauma which might otherwise be incidental.

May 8, 2015 Hr'g Tr. 31-32. Dr. Rothfeder noted that the rebleeding of a subdural hematoma is

an area of medicine that is not fully understood and explained that Marianne's complex medical

conditions make it "difficult to juxtapose what might happen in a general population as to what

happened to her." !d. at 32.

In contrast, Dr. Makoroff and Dr. Shapiro both testified there was no evidence of a chronic

subdural. Trial Vol. 2 Tr. 95; May 14, 2015 Hr'g Tr. 25. They adopted this conclusion definitively

despite contradictory CT scans. Dr. Makoroff and Dr. Shapiro ruled out the possibility of a chronic

subdural for two reasons: they speculated both that it would have been visible on the earlier CT

scan (despite knowing that scan was incomplete (May 14, 2015 Hr'g Tr. 25)) and that Dr.

7

Stevenson would have seen the old blood while he was operating on Marianne. Without experts,

trial counsel was not able to address these explanations by the State's witnesses.

Individuals have been wrongfully convicted, and later exonerated, when their trial counsel

failed to properly investigate and consult with experts regarding claims related to CT and MRI

scans. See, e.g. National Registry ofExonerations, Julie Baumer, available at

https://www.law. umich. edu/special/exoneration!Pages/casedetail. aspx? caseid= 3 0 17; National

Registry of Exonerations, Warren Hales, available at

https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=3962.

Infection. Dr. Rothfeder testified that cortical venous thrombosis resulting from

Marianne's nasal infection could have caused Marianne's subdural hematoma. May 8, 2015 Hr'g

Tr. at 30. The State's witnesses' rejection ofthe possibility of venous thrombosis is puzzling, as

venous thrombosis-a form of childhood stroke that most often affects infants-is the subject of

extensive literature, is typically natural in origin (rather than caused by trauma), can often be

caused by infection, and can be mistaken for SBS/AHT. See, e.g., Sebire et al, Cerebral Venous

Sinus Thrombosis in Children: Risk Factors, Presentation, Diagnosis and Outcome, 128 Brain

477 (2005) (most cases are associated with illness, with 47% associated with ear infection; only

4% associated with recent head trauma); Michael V. Krasnokutsky, Cerebral Venous Thrombosis:

A Potential Mimic of Primary Traumatic Brain Injury in Infants, 197 Am. J. Roentology 503

(2011) (most cases associated with illness or dehydration; the few cases that are associated with

trauma usually involve skull fracture). Venous thrombosis has been identified as the cause of death

in patients previously diagnosed with SBS/AHT, in cases where the defendant was ultimately

exonerated. See, e.g. National Registry of Exonerations, Drayton Witt, available at

https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=4043; National

8

Registry of Exonerations, Julie Baumer, available at


Infection cannot be excluded as a possible cause of findings like those seen in Marianne.

Infection can be fatal in small children, and has been confused with child abuse in cases where the

defendant was ultimately exonerated. See, e.g., National Registry of Exonerations, Rodricus

Crawford, available at

https:/ /www.law. umich.edu/ special/ exoneration/Pages/ casedetail.aspx? caseid=5123;

Registry of Exonerations, Adrian Thomas, available at


National

2. Biomechanical Expert Testimony Undermines the Theory of Abuse

Individuals have been wrongfully convicted based on the outdated and incorrect belief that

household falls cannot kill. See, e.g., National Registry of Exonerations, Zavion Johnson, available

at https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=5264; People v.

Bailey, 47 Misc. 3d 355, 374 (Sup. Ct. Monroe County 2014). Biomechanics has been essential in

the review of similar cases. The field can help determine whether a described event-like a fall

is consistent with medical findings seen in a patient by applying principles of physics and

engineering to a proposed scenario. Biomechanical engineering is a critical discipline in this sort

of case. It differs significantly from the input of physicians, who do not have extensive technical

knowledge of injury mechanics, even if they routinely treat patients who have been injured. Courts

have held that biomechanical engineers bring an entirely different and sometimes crucial

viewpoint that differs significantly from physicians. See, e.g., Council v. State, 98 So.3d 115

(20 12). Biomechanical engineering is a well-recognized area of expertise and routinely used in the

9

courtroom, as well as when developing and testing the safety of all manner of products related to

children (e.g., helmets, playground equipment, cribs, swings, etc.).

a. Lack of Scientific Evidence Supporting Causation in General

Biomechanical analysis has been crucial to the development of SBS/ AHT theories. Early

in the hypothesis's history, it was not well-tested. When it was tested, researchers found that

shaking alone produced very low accelerations, which would not be likely to cause the findings

commonly associated with SBS. More studies were conducted, and in 2003, researchers found that

"even short drops produced acceleration levels that were considerably higher than those associated

with shaking." April 29, 2015 Dep. Tr. 24. This resarches undermines the claim that shaking is

more injurious than a short fall.

Force is measured in "Gs." Id. at 29. Dr. Monson explained that the peak level of force

produced by shaking is 15 Gs. Id. at 30. In six-month-old infants, the lowest level of force that has

been suggested as potentially injurious is 50 Gs. Id. at 29-30. "Subsequent work has suggested that

a skull fracture and subdural hematoma might be expected around 85 Gs." Id. at 30. And though

subject to ongoing research, these injury thresholds are well-accepted within the field of

biomechanics. Id. at 31. Further, research also shows 'just how quickly the accelerations a person

can produce by shaking decrease[] with weight." Id. at 74. In other words, if the maximum force

produced by shaking is 15 Gs, the force that shaking could have produced in Marianne's case

would likely have been much lower.

Data, research, and context from a biomechanical engineer was necessary to properly

evaluate the State's claims regarding the method of causation in this case. But trial counsel failed

to call a biomechanics engineer to testify on Mr. Jones's behalf, which meant the jury was left

10

unaided in critically evaluating the testimony of Dr. Makoroff-the testimony that anchored the

State's case against Mr. Jones.

b. The Biomechanics of Marianne's Injury

Had Dr. Monson or any biomechanical engineer testified on Mr. Jones's behalf, the jurors

would have been equipped to critically evaluate Dr. Makoroffs claims regarding shaking or

shaking with impact as the method of abuse. The jury would have been able to compare the

anecdotally supported beliefs of medical doctors with the objective data discovered by Dr. Monson

and other engineers.

Shaking. Dr. Makorofftestified that an injury like Marianne's could only be caused by a

"great bit of force." Trial Vol. 2 Tr. 63. When asked what sort of "abusive acts" could produce

such force, Dr. Makoroff replied, "[C]ertainly a shaking; if she was picked up and shaken

violently." Id. at 77-78. Dr. Monson testified that this is not tme. No scientific data supports this

claim. In fact, research suggests the opposite: the maximum accelerations achieved by shaking are

approximately 15 Gs. April29, 2015 Dep. Tr. 30. This level of force would not even be expected

to produce a minor head injury in an infant, let alone subdural hematoma requiring emergency

neurosurgery in a four-year-old child. !d.

Shaking with Impact. Dr. Makoroff also proposed that Marianne could have been "shaken

and impacted onto a- onto a floor, onto a- onto a bed or another soft surface." Trial Vol. 2 Tr.

101. But, if the impact were the cause of the injury, the injury would be indistinguishable from

one caused by a fall: "Biomechanics can't - can't distinguish the intent of a force. The idea that

there is a deformation, that there is an injury associated with the application of a force is one thing,

but knowing whether or not that force was intentional is, generally, not discemable." April 29,

11

2015 Dep. Tr. 42; see also id. at 77 (discussing why the shaking would be irrelevant if the child

was impacted subsequently).

Dr. Shapiro testified that he could distinguish between abusive and accidental force. May

14, 2015 Hr' g Tr. 27. He ruled out the possibility of an impact as the cause for Marianne's injuries

because of the distribution of blood: "Marianne's [bleeding] was in the classic distribution that we

see in kids who have suffered shaken injuries." !d. at 17. That statement seems to limit the possible

cause of Marianne's injury to shaking, rather than an impact-accidental or abusive. Otherwise,

there would be no way to distinguish between an impact caused by an abusive act and an impact

caused by a fall. In other words, Dr. Shapiro disagreed with Dr. Makoroffs theory of shaking

plus-impact as a method of causation.

Dr. Shapiro also relied upon retinal hemorrhages as evidence of abuse rather than

accidental trauma. "[C]hildren who have short falls will, at most have very minimal retinal

hemorrhaging." !d. This claim is contrary to the published medical literature. Studies, including

those conducted by Dr. John Plunkett and Dr. Patrick Lantz suggest there is no type or pattern of

retinal hemorrhage that is exclusively diagnostic of abuse. See Postconviction Petition, Exs. G and

H. Indeed, doctors are frequently unable to determine why some patients get retinal hemorrhages

and others do not.

Short Fall. At trial, doctors testified for the State that a fall while jumping on a bed could

not have caused Marianne's medical findings. This is false, and the type of testimony that can lead

to wrongful conviction. Whether or not a particular physician has personal experience with such

scenarios, published data, including experimental data, demonstrates that a fall of the type that

might be expected while jumping on a bed could have resulted in Marianne's injuries. And had

trial counsel called a biomechanical engineer to testify, there would have been testimony to explain

12

why this type of fall could produce the force necessary to cause the medical findings in this case.

Dr. Shapiro and Dr. Makoroff rejected that type of fall as a possible cause for Marianne's injury

because they "have lots of experience knowing what kinds of injuries happen to kids that fall."

May 14, 2015 Hr'g Tr. 52. This is the sort of approach likely to result in wrongful conviction-

when experts rely on ipse dixit rather than sound scientific data.

Dr. Shapiro explained that analyzing the biomechanics of a fall is irrelevant or unhelpful

because "the biomechanical findings don't yet match up with what we observe in real life." May

14, 2015 Tr. 22. This concern sometimes arises regarding biomechanical evidence in SBS/AHT

cases, but it is an incorrect analysis. A more accurate view is that engineering data contradicts Dr.

Shapiro's beliefs about what happened to Marianne. An unsupported belief-even of an expert-

is not sufficient to overcome reliable facts and data and is a wholly inadequate foundation upon

which to build a criminal conviction.

B. Because The State's Expert Testimony Went Unrebutted, Mr. Jones's Was Convicted On the Basis of Flawed and Disputed Medical Testimony.

Dr. Makoroff submitted an opinion to a "reasonable degree of medical certainty" that was

scientifically unsupportable and medically umeasonable. Because no expert testimony was

presented on Mr. Jones's behalf, the State was able to persuade the jury that it was Mr. Jones whose

testimony "defies the medical evidence." Tr. Vol. 3, 31. This claim was central to the State's case.

The State relied heavily in closing argument on Dr. Makoroff' s unchallenged testimony and the

fact that Mr. Jones presented no evidence to support his innocence. The failure of trial counsel to

present expert testimony allowed the jury to convict Mr. Jones on the basis of the State's flawed

expert testimony.

III. The expert testimony presented at Mr. Jones's postconviction hearing undermines confidence in his verdict.

13

The jurors at Mr. Jones's trial were never presented with the science or information

necessary to adequately evaluate the credibility of the State's experts. Both the trial court and the

court of appeals in Mr. Jones's case determined that there was not a reasonable probability that it

would have affected the outcome of his trial. Those determinations are in direct conflict with the

outcomes of similar cases across this country and abroad.

When SBS/ AHT testimony is properly rebutted, convictions are overturned:

• Wisconsin v. Edmunds (2008) - in Edmunds, a Wisconsin state appellate court ordered a new trial for a defendant convicted in a SBS/ AHT case solely on the basis of expert medical testimony, holding that newly discovered evidence undermined the validity of the SBS/AHT hypothesis. See Wisconsin v. Edmunds, 308 Wis. 2d 374, 392 (Wis. Ct. App. 2008). The court stated there that "there has been a shift in mainstream medical opinion since the time of [the defendant]' s trial as to the causes of the types of trauma [the infant] exhibited." Id. at 391. Citing the "emergence of a legitimate and significant dispute within the medical community" regarding the SBS/ AHT hypothesis, the court found that a jury might have reasonable doubt as to the defendant's guilt. Id. at 392. The state subsequently dismissed all charges against Edmunds.

• Del Prete v. Thompson (2014)- in Del Prete, a federal court in Illinois found that newly discovered evidence discrediting the SBS/ AHT hypothesis demonstrated the innocence of a woman convicted on the basis of a SBS diagnosis in 2005. See Del Prete v. Thompson, 10 F. Supp. 3d 907, 958 (N.D. Ill. 2014). The court found that new evidence based on today' s understanding of SBS/ AHT "[gave] rise to abundant doubt, not merely reasonable doubt, regarding Del Prete's guilt." Id. at 957. The court observed that recent scientific developments discrediting the SBS/ AHT hypothesis "arguably suggest[] that a claim of shaken baby syndrome is more an article of faith than a proposition of science." Id at 957 n.1 0.

• Dobson v. Maryland (2014)- in Dobson, a Maryland court ordered a new trial for a defendant convicted in 2010 under the SBS/ AHT hypothesis, finding that the defendant had received ineffective assistance of counsel when her trial attorney failed to call expert witnesses to challenge the SBS diagnosis of the prosecution's experts. See Order at 26-27, Dobson v. Maryland, No. 20-K-09-9572 (Cir. Court, Kent County, Apr. 7, 2014).

• People v. Bailey (2014)- in Bailey, a New York court granted a new trial on the basis of newly discovered evidence for Renee Bailey, who was convicted in 2002 on the basis of a SBS diagnosis of abuse. See People v. Bailey, 47 Misc. 3d 355, 374 (Sup. Ct. Monroe County 2014). Significantly, the trial court in Bailey found

14

on postconviction that "[the testimony given at trial], that children did not die from short falls, has been proven to be false." Id at 370.

• Peop]e v. Ackley (2015) -in Ackley, the Michigan Supreme Court overturned a conviction based solely on unrebutted expert testimony alleging SBS/ AHT and held that "defense counsel's failure to attempt to engage a single expert witness to rebut the prosecution's expert testimony or to attempt to consult an expert with the scientific training to support the defendant's theory of the case, fell below an objective standard of reasonableness and created a reasonable probability that this error affected the outcome of the defendant's trial."

The introduction of competent expert testimony combatting the unsupportable conclusions

and flawed testimony presented by the prosecution would invariably have aided Mr. Jones's trial

defense and would almost certainly have cast doubt as to guilt.

CONCLUSION

The Innocence Network urges this Court to accept this case to ensure that Ohio defendants

are not convicted solely on the basis of scientifically unsupportable opinion testimony that was

never properly rebutted at trial. The holding of the Second District Court of Appeals sends a

dangerous message that even in instances where counsel has no strategic reason for failing to

present available, credible, exculpatory expert testimony, convictions will remain intact. Such a

holding threatens the ability of defendants in all cases to effectively remedy wrongful convictions.

Respectfully submitted,

BRIAN C. HOWE (0086517) Rosenthal Institute of Justice/ Ohio Innocence Project University of Cincinnati College of Law P.O. Box 210040 Cincinnati, Ohio 45221 (513) 556-4276 (513) 556-0702- Fax


15

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing AMICUS CURIAE THE INNOCENCE

NETWORK'S MEMORANDUM IN SUPPORT OF JURISDICTION was served by regular

U.S. mail upon Janna Parker, Assistant Miami County Prosecutor, 201 West Main Street- Second

Floor, Troy, Ohio 45373; and Nikki T. Baszynski, Assistant State Public Defender, 250 E. Broad

St., Ste. 1400, Columbus, Ohio 43215, on this 9th day of April2018.

~ ~ ~~R ?._tss(n"' BRIAN C. HOWE (0086517) ~ , ~I


16

amicus curiae the innocence network's memorandum...

Documents