Opinion
No. TSR CV03 0004233-S
June 4, 2008
MEMORANDUM OF DECISION
On October 29, 2003, the petitioner initiated the instant matter by filing a pro se petition for a writ of habeas corpus, which was amended by and through counsel for the final time on April 2, 2007. The second amended petition raises claims in three counts: first, that the petitioner's conviction is illegal because it is a result of "unsubstantiated `expert' testimony"; second, that postjudgment medical and scientific evidence contradicts the state's expert opinions; and third, that the petitioner received ineffective assistance by trial defense counsel. The return filed by the respondent denies the petitioner's material allegations and that she is entitled to habeas corpus relief, and raises the affirmative defense of procedural default as to the claim in count one. The petitioner's reply to the return asserts that procedural default does not apply to the claim in count one. The petitioner also asserts that should procedural default apply, then cause and prejudice distinct from the ineffective assistance claim in count three will be shown at the habeas trial.
The matter came before the court on four days in June, October and November 2007 for a trial on the merits. Witnesses included Antonio D'Addeo, Sara Bernstein, Richard S. Cramer, Chris Van Ee, Roger McLendon, Hope Seeley, Malka Shah and Betty Spivack. The court has reviewed and considered the testimony, the exhibits, the parties' memoranda of law and their closing arguments. After applying the law to the facts, judgment enters denying the petition for a writ of habeas corpus.
On February 1, 2008, petitioner filed a motion to supplement her trial brief, to which respondent filed an objection on February 5, 2008. The court permitted petitioner's supplementation and has reviewed and considered State v. Edmunds, 2008 WI.App. 33, pet. for review denied, 2008 WI 40. Petitioner submitted Edmunds for this court to consider the post-conviction standard applied in that case as well as to reconsider the dismissal of count two. See footnote 2. Even a cursory glance at Wisconsin's system of post-conviction remedies underscores the vast differences between Wisconsin and Connecticut. See, e.g., State v. Knight, 168 Wis.2d 509, 484 N.W.2d 540 (1992), and WIS.STAT. § 974.06.
A review of Edmunds shows it is readily distinguishable from the instant habeas. Edmunds was an appeal from an order denying a motion for a new trial premised on newly discovered evidence (i.e., expert opinion as it has evolved since defendant's conviction). Thus Edmunds was not a matter alleging ineffective assistance of counsel and the Wisconsin court in no way addressed whether counsel's performance was deficient. This is further illustrated in Edmunds by that court's emphasis that "[t]he real crux of the dispute in this case is whether the new expert medical testimony Edmunds offers establishes a reasonable probability that a different result would be reached in a new trial." By comparison this court must first find deficient performance before being able to conclude that such deficient performance itself prejudiced the petitioner. See, e.g., Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ("First, the defendant must show that counsel's performance was deficient. Second, the defendant must show that the deficient performance prejudiced the defense"). Thus the crux of Edmunds was identical to the second Strickland prong without previously having had to consider the first prong, a condition precedent in this state's and federal habeas corpus jurisprudence.
This court also notes that the Edmunds case presents a potential quagmire of epic proportions: the strong likelihood of constant renewed prosecution and relitigation of criminal charges as expert opinion changes and/or evolves over time. "The state has a strong interest in the finality of judgments; see Summerville v. Warden, [ 229 Conn. 397, 428, 641 A.2d 1356 (1994)]; Myers v. Manson, 192 Conn. 383, 387, 472 A.2d 759 (1984)." State v. Brown, 235 Conn. 502, 531, 668 A.2d 1288 (1995). See also Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003). This strong interest the people have in the finality of judgments means little if not nothing if it is tailored by the alterations embodied in changing expert opinions. The court has reviewed and considered State v. Edmunds. For the foregoing reasons the court concludes is has no bearing on petitioner's claim of ineffective assistance by trial defense counsel. The court also has reviewed Edmunds and reconsidered its dismissal of count two. This reconsideration has not led this court to conclude it was incorrect to dismiss count two for failure to state a viable habeas corpus claim. Lastly, the strong interest in the finality of judgments is significantly undermined by reasoning employed by the Edmunds court.
The court dismissed count two after the petitioner's case-in-chief because the count failed to state a cause of action. Count two is captioned "Post-judgment medical and scientific evidence contradicts the state's `expert' opinions." At best this claim merely draws attention to the fact that medical and scientific reasoning evolve over time, a not too novel notion. This claim is not, however, a cognizable habeas corpus claim. Thus the discussion below is limited to counts one and three.
FINDINGS OF FACT
The petitioner was the defendant in a criminal case pending in the judicial district of Hartford, Docket Number CR94-463984-S, in which she was charged with the crimes of intentional manslaughter in the first degree in violation of Gen. Stat. § 53a-55(a)(1); reckless manslaughter in the first degree in violation of Gen. Stat. § 53a-55(a)(2); risk of injury to a minor in violation of Gen. Stat. § 53-21; and tampering with a witness in violation of Gen. Stat. § 53a-151. In January 2000, the petitioner was tried to the jury and found guilty of reckless manslaughter in the first degree and risk of injury.
The facts underlying the petitioner's conviction were recounted in the decision of the Appellate Court disposing of her direct appeal: "Lennox Walker, the victim's father, arranged for the [petitioner] to care for the victim, Lamar Walker, who was four months old. Kerry Ann Douglas, the victim's mother, took the victim to the [petitioner's] apartment on the morning of August 12, 1994. Approximately two hours after the victim was left in the [petitioner's] care, the victim required hospitalization because he was not breathing.
"At 11:18 a.m., a police certified dispatcher received a 911 call from 887 Asylum Avenue in Hartford, the location of the [petitioner's] apartment. Emergency personnel responded and found that the victim was not breathing, had no pulse, and was cold, pale and blue from a lack of oxygen in his blood. The paramedics transported the victim to St. Francis Hospital and Medical Center. Because of the victim's special needs at that time, he was taken by Life Star helicopter to Hartford Hospital, which has an intensive care unit specially designed for very young children. Medical examination of the victim revealed that he had sustained the following injuries: Severe swelling of the brain, bleeding in the head, retinal hemorrhage and fractures in five bones. On August 14, 1994, the victim died at the hospital from the injuries he had sustained." State v. Grant, 68 Conn.App. 351 (2002).
A review of the criminal trial transcripts reveals the following additional facts: From the time of his birth, the victim resided with Douglas in Hartford and was seen for well child visits on numerous occasions at Burgdorf Health Center. Burgdorf's medical records confirm that prior to his injury, the victim was a well baby who was developing normally and had no illnesses or serious medical conditions of any kind. The victim was last seen on June 14, 1994 and was scheduled for his next visit in late August 1994.
In August 1994, the victim and Douglas resided with his aunt, Bridget Provost, Provost's husband and their children in an apartment in Hartford. On August 12, the victim awoke at approximately 6:00 a.m. and Douglas fed him a bottle of formula and put him back to bed. At approximately 7:30 a.m., Douglas woke the victim and dressed him to go to the petitioner's house. Provost spent approximately thirty minutes with the victim before Douglas took him to the petitioner's house. Throughout this time, the victim was not fussy or crying and did not appear to be in any distress.
At 8:30 a.m., Douglas walked the victim over to the petitioner's house which took ten minutes. The petitioner was not home and Douglas waited for her in front of the apartment. Carline Lewis, the petitioner's neighbor, was looking out her apartment window when Douglas and the victim arrived at the petitioner's apartment. Douglas had to wait some time for the petitioner to arrive home and Lewis heard the victim crying "like he was in pain." When the petitioner returned to her apartment, she drove Douglas and the victim to downtown Hartford so that Douglas could get a bus to attend school in East Hartford.
Later in the morning, the petitioner brought the victim to Lewis' apartment. While there, Lewis observed the victim lift his head twice like he was having a seizure. After fifteen to twenty minutes, the petitioner returned to her own apartment. At 11:00 a.m., Walker received a phone call from the petitioner indicating that the victim was constipated and that she gave him prune juice. The petitioner additionally asked Walker to come to her house. Since the victim's condition was not life threatening, Walker's employer would not release him and Walker so informed the petitioner. Walker testified that he did not hear the victim crying in the background during this phone call. The petitioner then called Lewis and asked her to come to her apartment, but would not say why. When Lewis got to the petitioner's apartment, she observed the victim lying on a bed with froth coming from his mouth. Lewis also reported that the victim looked purple around the lips and mouth. Lewis told the petitioner to call 911 while Lewis attempted cardio pulmonary resuscitation (CPR). The petitioner later told Lewis not to tell the police that the petitioner had been in Lewis' apartment with the baby or that Lewis had given the victim CPR.
At approximately 10:30 a.m., Provost went to the petitioner's apartment to drop off a set of keys, but the petitioner was not home.
Walker received a second phone call from the petitioner who said that the victim was not breathing and that he needed to come to her house because the paramedics needed him. Later at St. Francis hospital, the petitioner told Walker that she had been telling Douglas all week that the victim was sick, but Douglas did not take the baby to the doctor. Walker further testified that these were the only two phone calls which he had ever received from the petitioner while the victim was in her care. At the hospital the petitioner also informed Douglas that the victim had stopped breathing and had been screaming that day. Both Douglas and Walker testified that prior to his injury, the victim had no health problems including any problems with his arms or legs. Douglas further testified that the victim was in good health when delivered to the petitioner and that the petitioner had never told Douglas to take the victim to the doctor.
In the 911 call made by the petitioner she indicated that the victim was crying all morning and blood was coming though his nose. When asked by the dispatcher if the victim was breathing okay, the petitioner responded that she did not know. At no time did the petitioner report that it was a medical emergency or request that an ambulance be sent. An ambulance was nevertheless dispatched to the petitioner's house and Thomas Harper, a paramedic, was the first responder. Before examining of the victim, Harper spoke to the petitioner in an effort to determine the nature of the call. The petitioner told Harper that the victim had been crying all morning, that she had fed him and put him down to sleep 45 — 60 minutes earlier and that when she went to look in on the victim, she could not wake him up. The petitioner further reported she tried to call the victim's parents but was unable to contact them. Harper then went to the victim and observed him lying on a bed propped up on some pillows. The victim looked very clean and smelled of soap. There was no mucous coming from the nose. There was no pulse; the victim was not breathing and he felt very cold. The victim's face was pale with cyanosis around the eyelids and the lips. In the ambulance, Harper first determined that there was nothing blocking the victim's airway then put an oxygen mask over the victim's mouth and began CPR. The victim was also intubated and administered one dose of epinephrine. He was then taken to St. Francis Hospital for further care.
Upon arrival at St. Francis, the victim was described as unconscious and unresponsive. His pupils were dilated and elicited no reaction. Both his serum pH and his serum bicarbonate levels were remarkably low indicating that he had been without oxygen for some period of time and his heart had not been beating. The attending physician additionally observed "flame" hemorrhages in both eyes. Medical personnel restarted the victim's heart and he was placed on a ventilator. Due to the severity of the victim's condition he was then transported by Life Star to Hartford Hospital.
At Hartford Hospital, the victim was examined by Daniel Fisher, a physician specializing in pediatric critical care. Fisher found the victim in shock with poor profusion to his body. The victim was cold to the touch and he required resuscitation to stabilize his blood pressure and pulse. Upon examination, Fisher observed bilateral retinal hemorrhages in the eyes and the fontanel was full and firm. A computerized tomography (CT) scan was performed at 6:40 p.m. which showed significant abnormality between the gray and white matters of the brain as well as blood in the subarachnoid space. Fisher also undertook a neurologic examination which demonstrated that there was no activity in the brain.
In an effort to obtain a history of the injury, Fisher spoke independently to Douglas and to the petitioner. The petitioner told Fisher that the victim had arrived at her house in his usual state of health and was active and alert. The victim had become more irritable and she had difficulty feeding him. She reported that he was usually a somewhat fussy baby who was difficult to feed and to console. The petitioner further told Fisher that she had taken the victim to a girlfriend's apartment, had laid him down for a while and he was quiet. She then picked him up, brought him downstairs and went to change his diaper. At that time she noticed that he was limp. The petitioner showed Fisher how she had gently rocked the victim to try to wake him up. She then called Walker who could not leave work, then called her own mother and then called 911. The petitioner also told Fisher that she had previously advised Douglas to take the victim to the doctor because of his irritability and constipation. The petitioner never indicated to Fisher that earlier in the day, she had been concerned with the victim's health.
In Fisher's opinion, the history provided by the petitioner was not consistent with the severity of the injuries to the victim. Fisher testified that a great amount of force, such as a motor vehicle accident, a fall from a high place or severe shaking, would be required to inflict the injuries suffered by the victim. Moreover in Fisher's opinion, the severity of the injuries would have caused the victim to become unconscious shortly after receiving these injuries thus they could not have been inflicted prior to 9:30 a.m.
Betty Spivack, medical director of the pediatric intensive care unit, took over the victim's care starting at 8:00 a.m. on August 13. Spivack examined the victim and reviewed his medical file including the CT scans of the victim's brain and the x-rays taken of the victim's arms and legs. In Spivack's opinion, the victim's injuries were suggestive of shaken impact syndrome which Spivack described as violent repetitive shaking with or without subsequent impact against a soft surface. According to Spivack the victim most likely would have lost consciousness almost immediately after the infliction of these injuries and would have remained unconscious thereafter. The victim may, however, have suffered seizures or uttered a high pitched abnormal cry or engaged in grunting type breathing just prior to the onset of cardiac arrest. Spivack further testified that while the type of brain injury suffered by the victim could have been caused by a motor vehicle accident, the total combination of the victim's injuries — subdural swelling of the brain, retinal hemorrhages and metaphyseal fractures — were suggestive of abusive head trauma and shaken baby or shaken impact syndrome. Spivack further opined that the injuries occurred no earlier than one hour before the victim's admission to St. Francis.
The x-rays showed fractures in both femurs at the metaphysis on both sides and corresponding fractures in both tibias. Additionally there was a fracture of the acromion process of the left scapula. Such fractures can be caused by shaking.
Malka Shah, associate medical examiner, performed the victim's autopsy. Shah's findings included a subdural hematoma on the top surface of the brain extending under the surface of the brain and throughout the length of the spinal column down to the buttocks where some of the blood had clotted. Hemorrhaging also extended the length of the optic nerve and into the retinas. Shah additionally observed fractures in the victim's legs and the shoulder. Shah's anatomic diagnosis was blunt trauma of the head, diffuse subdural hematoma and cerebral edema. In Shah's opinion, the blunt trauma was caused by an object striking the head, by a fall or by shaking. The cause of death was head injury and the manner of death was shaken baby syndrome. In reaching this opinion Shah relied upon the history provided and the combination of injuries suffered by the victim.
Dean Uphoff, a neuropathologist, conducted both a gross and microscopic post-mortem examination of the victim's brain, spinal cord and eyes. In so doing Uphoff confirmed Shah's findings and also concluded that the combination of injuries suffered by the victim were characteristic of shaken baby or acceleration/deceleration.
Prior to the victim's death, the petitioner had been employed as a certified nursing assistant (CNA) at a nursing facility in Wethersfield. The petitioner's supervisor, Darlene Powers, testified that the petitioner held a CNA license from the state of Connecticut which required that the petitioner undergo twenty-five hours of classroom as well as fifty hours of clinical training and successfully pass a state licensing exam. Additionally the petitioner had undergone employment training in the handling of medical emergencies which included immediate notification to a supervisor of any emergency.
Immediately after the victim's transport to St. Francis Hospital, the petitioner spoke to Hartford police officer Robert Davis. The petitioner told Davis that the victim had been crying continuously. She believed that the cause of the distress was "gas related" and so gave the victim water which did not help. The petitioner indicated the victim's crying got worse and she called the parents who were not able to come. When the crying continued, the petitioner called 911.
The following day the petitioner was interviewed at Hartford police headquarters by Detective Keith Knight. The petitioner told Knight that she first saw Douglas and the victim when the petitioner returned from dropping off her own daughter at daycare. Douglas and the victim got into the petitioner's car and the petitioner brought Douglas downtown to catch a bus. After dropping Douglas off, the petitioner attempted to go to a bank but due to the victim's crying, she returned home. At home the petitioner fed the victim three to four ounces of formula and some prune juice for constipation. The petitioner further indicated that Lewis came to her apartment. While Lewis was at the petitioner's apartment, the victim was moving his head up and down and crying loudly. The petitioner reported that she felt the victim's heart and could not feel a heartbeat. She also felt for a pulse and could not feel a pulse. The petitioner screamed and asked Lewis to look at the victim. Lewis told the petitioner the victim was dead. The petitioner then telephoned her mother, then the victim's father and finally 911. The petitioner claimed that she told the 911 operator that she could not feel a heartbeat or a pulse and that the victim was not breathing. After the victim's death Knight again spoke to the petitioner. At that time the petitioner told Knight that the victim was continuously in her care and that she had not left her apartment while the victim was with her. She further told Knight that while the victim was in her car, she was not involved in a motor vehicle accident or any incident requiring sudden hard braking. As part of his investigation, Knight determined that the distance from the petitioner's apartment to St. Francis Hospital emergency room was one-half mile and took three minutes to drive.
At the criminal trial the petitioner testified in her own defense. The petitioner testified that during the one-month period in which she babysat for the victim, she became concerned for his health in that he often cried and was not as active as a typical four-month-old. The petitioner claimed that she informed Douglas of this and advised her to take the victim to the doctor. The petitioner further testified that on August 12, when Douglas dropped the victim off, he was crying and fussing, but it was unlike his usual cry. The petitioner then brought Douglas to the bus stop and on the way home had to slam on her brakes to avoid hitting another car. At home the petitioner attempted to feed the victim but most of the milk went down his cheeks because he was fussy. The petitioner further testified that the victim was acting unusual in that he was less active and not feeding well. The petitioner took the victim upstairs to Lewis' apartment and placed the victim on a bed. She noted that the victim was nodding his head up and down. The petitioner brought the victim back to her apartment and put him on her bed so that he could nap. Sometime later the petitioner went to check on the victim and noticed that he was not moving. As a result the petitioner called her mother. The petitioner then called Walker to report that the victim was constipated and asked him to come to her apartment. The petitioner next called Lewis and asked her to come to the apartment. The petitioner then called the victim's grandparents and spoke to the grandfather. After Lewis arrived at the apartment, the petitioner finally called 911.
The petitioner also testified that she informed the victim's father of her concerns.
In her testimony, the petitioner claimed she told Fisher she attempted to feed the victim and not that she fed the victim. The petitioner admitted that she told Fisher she noticed the victim was non-responsive while in Lewis' apartment, that the victim napped for 45-60 minutes after she returned from Lewis' apartment and that she shook the victim and he began to moan and cry. The petitioner denied that she told Fisher the victim was acting his usual self. The petitioner also contradicted Knight's testimony by claiming that she had told Knight the victim did not feed in the morning and that she had gone to Lewis' apartment. The petitioner also claimed Knight never asked her if she had been in a motor vehicle accident or had engaged in hard braking. The petitioner further testified that she never told Lewis to lie to Hartford police.
Gordon Sze, chief of neuroradiology at Yale, testified for the defense that if the victim's brain injury had been caused by shaking, evidence of swelling of the brain would not appear on the CT scan for at least twelve hours thereafter. In Sze's opinion therefore the victim's injuries were caused no later than 6:30 a.m. on August 12. On cross examination, Sze conceded that an impact injury could cause immediate swelling of the brain and that this swelling would be visible on the CT scan.
In rebuttal for the state, L. Christopher Foley, a pediatric radiologist, testified that shaken baby injuries are usually caused by a combination of shaking and impact with the impact often coming when the child is thrown down after being shaken. Foley further indicated that shaken impact injuries were likely to occur irrespective of whether the impact was against a hard surface or a soft surface. Foley also testified that there was nothing in the victim's CT scan which would be inconsistent with the injuries having occurred at approximately 10:30 a.m.
The petitioner was arrested in October 1994 for the crimes involving the victim. At various times thereafter, the petitioner was represented by Attorney Rudy Cohen and Assistant Public Defender Karen Goodrow. In September 1998, Goodrow transferred to the Capital Litigation Unit and Assistant Public Defender Sara Bernstein was appointed to represent the petitioner.
Bernstein was appointed an assistant public defender in January 1986. In September 1998, she was assigned to Part A in the judicial district of Hartford. At the time of this habeas trial, Bernstein was the Public Defender for Hartford.
When Bernstein was assigned petitioner's case, it was on the firm jury list. Initially Bernstein reviewed the entire state's file and obtained copies of police reports and witnesses' statements. Bernstein also reviewed Cohen's file, Attorneys Leon Kaatz and Ronald Piekes' file, the Hartford Hospital and St. Francis Hospital reports, the victim's autopsy report, and x-rays and CT scans of the victim's brain and extremities. In toto Bernstein's trial file consisted of two "banker's" boxes. Bernstein also consulted with Goodrow. Bernstein concluded that the state's theory of the case was that sudden impact or shaken baby caused the injuries and subsequent death of the victim. More specifically the state claimed the petitioner had shaken the victim or had shaken the victim and then forcefully placed him against a surface.
Cohen's file included handwritten and typewritten copies of the petitioner's version of the events of August 12 as relayed to Cohen.
Kaatz and Piekes represented the petitioner in juvenile court proceedings arising out of this prosecution.
Some six months prior to the petitioner's criminal trial, Bernstein had been co-counsel with Attorney Fred DiCaprio in another shaken baby case in which the defendant was the victim's babysitter. To prepare for that case Bernstein had reviewed a great deal of scientific literature relating to shaken baby syndrome and had consulted with numerous experts. In the petitioner's case, Bernstein went over the medical reports and witnesses statements with DiCaprio and Attorney Michael Isko, who also had familiarity and expertise in trying shaken baby cases. Bernstein also reviewed the numerous scientific articles and treatises dealing with the issue of shaken baby syndrome which had been contained in Kaatz and Piekes' file.
Included in this group was A. Duhaime, T. Gennarelli, L. Thibault, D. Bruce, S. Margulies R. Wiser, "The Shaken Baby Syndrome: A Clinical, Pathological, and Biomechanical Study," J. Neurosurg, 66: 409-15 (1987), introduced as petitioner's exhibit 38 in the habeas trial.
Initially Bernstein had difficulty in locating petitioner but after doing so, sat down with the petitioner to discuss this case. Bernstein spoke to the petitioner numerous times about the state's evidence and whether to accept the state's offer to settle, but the petitioner at all times wanted a trial. Bernstein also sent her investigator to interview the state's witnesses. Both Lewis and Douglas, however, refused to speak with her investigator so Bernstein contacted those parties herself. Lewis and Douglas also refused to speak with Bernstein. Additionally Bernstein and her investigator went to the petitioner's apartment building and canvassed the residents but were unable to find any useful information. Bernstein also spoke to Fisher, Uphoff and Shah and reviewed Spivack's testimony in two prior cases.
The state's offer of six years to serve had been withdrawn when the case was put on the trial list. When Bernstein was appointed to represent the petitioner, Bernstein was successful in getting the state to renew this offer.
Goodrow had hired Dr. Taft, a medical examiner for states of New York and New Jersey, to consult on the petitioner's case. Bernstein was familiar with Taft's background and experience and with the fact that he had testified in a number of cases and was highly regarded. Bernstein sent Taft a copy of the reports and the "films" in the case. Thereafter Bernstein spoke to Taft on two occasions. Taft informed Bernstein that in general he agreed with the state's experts that the injuries could have resulted from an impact or from one or more shakes. Taft further told Bernstein that the usual course of this type of brain injury would be instantaneous unconsciousness such that the victim would not be able to cry vigorously or to feed. Taft indicated that in some cases the child might be semi-conscious for a period and he put the outer limit of observable symptoms at twenty-four hours. Based upon these conversations with Taft, Bernstein made the decision not to call him in her case. Bernstein reasoned that although some of Taft's testimony might help the defense case, overall his corroboration of the conclusions of the state's experts would be more hurtful. Additionally because both Lewis and petitioner claimed that the victim had been crying while in the petitioner's care, Taft's opinion that the victim likely would not cry vigorously after receiving injury supported the state's theory as to the timing of the injury and therefore the identity of the perpetrator.
In an effort to pursue the timing issue, Taft suggested that Bernstein consult with a radiologist. Bernstein hired Sze for this purpose. Bernstein indicated that Sze was head of radiology at Yale and had a great deal of experience in looking at head trauma in children. At Bernstein's request Sze reviewed the reports, x-rays and CT scans in the victim's case and consulted with other radiologists at Yale. Sze told Bernstein that although he believed the injuries to the victim were caused by shaking, in Sze's opinion those injuries were inflicted no less than 12 hours before the CT scan was taken. Sze further indicated that the injuries could have occurred as much as 18-24 hours before the scans. Based on this opinion, Bernstein decided to use Sze and to focus solely on the timing of the injuries. Bernstein believed that other state evidence could corroborate Sze's testimony in that petitioner was on record as recommending to Douglas that Douglas take the victim to the hospital and the hospital records showed Walker was upset because Douglas did not take the victim to the doctor.
Bernstein testified that she did not speak to any expert or review any articles or other information which challenged the existence of shaken baby syndrome. Bernstein recalled reading articles about the timing of unconsciousness after a subdural hematoma and also speaking to Taft, Sze, Uphoff and Fisher about this issue. Bernstein admitted that in her notes of the interview with Shah, Bernstein wrote Shah had stated that after the concussion, the victim could have a moment of unconsciousness and then could appear fussy and not eat properly. Bernstein further testified that these notes were not, however, a verbatim account of what Shah had told her, nor did Shah ever adopt these notes as her own.
Chris Van Ee, a biomechanical engineer, testified at the habeas trial that based on his experience, personal research and peer reviewed literature, a single episode shake would not likely cause a subdural hematoma in an infant. In reaching this opinion Van Ee relied in part on a 1987 study by Duhaime et al which concluded that severe head injuries require impact to occur and that shaking alone does not produce shaken baby syndrome. Based on his own research with crash test dummies, Van Ee indicated that a short duration, i.e., impact, high acceleration, event reliably results in a subdural hematoma. Van Ee also reviewed the testimony of Fisher, Spivack and Uphoff and disagreed with their conclusions that the type of head injury seen in the victim could have been caused by shaking. In his testimony, Van Ee also cited a study by Plunkett which found that young children who suffer a severe head injury can have a period of lucidity.
A. Duhaime, T. Gennarelli, L. Thibault, D. Bruce, S. Margulies R. Wiser, "The Shaken Baby Syndrome: A Clinical, Pathological, and Biomechanical Study," J. Neurosurg, 66: 409-15 (1987), admitted as the petitioner's exhibit 38.
Plunkett, "Fatal Pediatric Head Injuries Caused by Short Distance Falls," Am. J. Of Forensic Medicine and Pathology, 22(1): 1-12 (2001).
On cross examination Van Ee conceded that he was not aware that the petitioner had given varying versions of the events of August 12, that he had not been provided with the petitioner's version of the events from the time the victim came into her custody and that he had not conducted any experiments duplicating the circumstances in petitioner's case. Van Ee also admitted that he did not attempt to account for the subdural hematoma of the entire spinal cord or the fractures of the legs and acromion. Van Ee testified that he had not seen the autopsy photographs of the victim's brain, the x-rays or the CT scans, that he had not reviewed the Hartford Hospital records and that he had not spoken with Fisher or Spivack. Van Ee further conceded that the heads of his crash test dummies were hollow and that during his experiments no substance consistent with brain matter was contained therein. Van Ee also acknowledged that Duhaime's study was conducted on primates and not humans. Further Van Ee acknowledged that the youngest child in the Plunkett study was twelve months and that 13 of 18 subjects had either no lucid interval or a lucid interval of less than fifteen minutes. Notably the results of the Plunkett study were not published until 2001 and thus would not have been available to Bernstein for use at the petitioner's criminal trial in January 2000.
Van Ee acknowledged that in two other post-conviction matters in which he had testified he had conducted experiments based on the defendant's version of the events which caused the injury.
The other five subjects had lucid intervals of forty-five minutes, one hour, three hours, twelve hours and forty-eight hours.
Roger McLendon, chief of neuropathology at Duke University, testified that he had reviewed, inter alia, the autopsy photographs, the autopsy report, the CT scan, the histology slides of Uphoff and the x-ray report. McLendon noted that the subdural hematoma appeared on the autopsy photos as reddish blackish blood at the top of the head. Additionally the autopsy photos showed a brighter red blood spread diffusely over the dura. Due to the difference in color, McLendon believes that this diffuse hemorrhaging occurred "a few hours" after the injury which resulted in the hematoma. McLendon attributed the hemorrhaging to a condition known as disseminated intravascular coagulopathy (DIC) which had been triggered by the head trauma. McLendon also concluded that the observable blood in the spinal column was caused from DIC.
In McLendon's opinion, the victim suffered an impact injury to the top of the head followed by a period of lucidity. The victim then had a subsequent loss of auto regulation which caused his brain to swell and his head to have seizure-like rolling movements. As the brain continued to swell, mucous also discharged from the nose, a sign of neurogenic pulmonary edema. As the brain further swelled it put pressure on the brain stem which then caused the victim to stop breathing. McLendon agreed with the state's experts that the cause of death was the injury to the victim's head.
McLendon testified that he believes the victim experienced a period of lucidity prior to his death. McLendon indicated that his opinion as to the victim's lucidity was based upon the size of the hematoma, the absence of cerebral contusions, the absence of diffuse axonal injury and the absence of lethal trauma to the central nervous system. McLendon did not give an opinion as to the timing or the duration of the period of lucidity, but noted that he had had a case of a six-week-old child who suffered a larger subdural hematoma followed by a period of lucidity and who survived. McLendon also cited N. Aoki H. Masuzawa, "Infantile Acute Subdural Hematoma: Clinical Analysis of 26 Cases," J. Neurosurg 61: 273-80 (1984) as support for his conclusion that the victim attained lucidity. McLendon conceded that during any period of lucidity, the victim would not necessarily appear symptomatically normal. McLendon further indicated he was surprised that the subdural hematoma caused the victim's death in that the hematoma did not appear to be large enough to have caused death. McLendon further testified that based on his review of the data, the timing of the victim's head injury was unclear to him, but it was likely the injury was inflicted no later than four to five hours and no early than twenty-four hours before the CT scan.
As to the retinal hemorrhages, McLendon opined that the subdural hematoma also caused the victim's auto regulation system to shunt blood from the carotid artery to the eye. Combined with the shut down of the venous return, this caused the capillaries of the eye to burst. McLendon further indicated that the mere presence of retinal hemorrhages does not necessarily mean that the victim was abused. As to the fractures of the shoulder and the legs, McLendon believes that these were preexisting injuries unrelated to the head trauma. According to McLendon if the fractures were concurrent with the head injury, tearing, bleeding and clotting of the muscles would have been noted and rebleeding would have occurred when the DIC was triggered.
Attorney Hope Seeley testified as an expert witness in criminal defense practice. Seeley was admitted to practice in 1989. In 2000, her practice consisted of 70% criminal and 30% civil litigation. By 2000, Seeley had represented several hundred criminal defendants, tried approximately twenty cases to verdict and prosecuted approximately twenty criminal appeals. In 1998, in a juvenile court termination of parental rights case, Seeley defended a mother who had been accused of SBS.
It should be noted that in Seeley's SBS case, no verdict was rendered by the court in that the department of children and families withdrew the petition.
According to Seeley, effective defense counsel in a case involving forensic evidence is first required to educate himself in the applicable science, speak with other attorneys who have had similar cases and consult with expert witnesses in the relevant scientific field. For a shaken baby (SBS) case tried in 1999-2000, Seeley believes that it was incumbent upon effective defense counsel to fully educate himself about shaken baby syndrome including a review of the emerging scientific literature which challenged the validity of shaken baby syndrome, to have consulted with the defense experts who had testified in the SBS case of Louise Woodward in Massachusetts and to have consulted a neurosurgeon regarding the subdural hematoma, a neuropathologist regarding the retinal hemorrhages and a biomechanical engineer. Seeley stated that she believes SBS is the "most daunting" type of case to defend in that the prosecution really believes in the existence of SBS as do many experts. In Seeley's opinion, it is an uphill battle to challenge SBS.
See footnote 11. See also, N. Aoki H. Masuzawa, "Infantile Acute Subdural Hematoma: Clinical Analysis of 26 Cases," J. Neurosurg 61: 273-80 (1984), introduced as the petitioner's exhibit 41.
Seeley used Dr. Usinski and another unidentified neurosurgeon as well as Lawrence Thibault, a biomechanical engineer.
Seeley conceded in cross examination that she did not use a neuropathologist in her own SBS case.
According to Seeley, Bernstein's performance was deficient in that she challenged only the timing of the victim's injury and not the theory of SBS itself. Seeley claims that Bernstein could have challenged the science of SBS through cross examination of the state's experts with relevant scientific literature and by the presentation of defense expert witnesses. In Seeley's own SBS case, she used the Duhaime and Aoki studies to cross examine the state's witnesses and in the defense case, presented the testimony of two neurosurgeons and a biomechanical engineer. Seeley further testified that in light of Taft's concurrence with the state's experts as to the cause of the victim's death and the fact that Taft's expertise appears to be in the area of burns, Bernstein should have sought out other individuals with expertise in SBS who disagreed with the state's witnesses. In Seeley's mind unless SBS was undermined in petitioner's case, there was little chance of acquittal.
No evidence concerning Seeley's juvenile court case was adduced at the habeas trial. Accordingly this court is unaware whether the factual allegations, the nature of the injuries suffered by the victim and the nature of the state's expert testimony approximates that of the present case.
In cross examination Seeley acknowledged that the Connecticut Supreme Court in State v. McClary, 207 Conn. 233, 246 (1998) held that SBS was generally accepted in the scientific community and accordingly met the Frye test. Seeley further acknowledged that even in the post- Frye era, if a scientific theory has gained general acceptance in the scientific community that the evidence is likely to be admitted.
Frye v. United States, 293 F. 1013, 1014 (D.C.App. 1923).
State v. Porter, 241 Conn. 57, 85, 698 A.2d 739 (1997) (en banc), cert. denied, 523 U.S. 1058, 118 S.Ct. 1384, 140 L.Ed.2d 645 (1998).
In rebuttal at the habeas trial, the respondent presented the testimony of Malka Shah. Shah reiterated her autopsy findings of subdural and subarachnoid hemorrhage, fractures of the acromion, fractures of the lower end of the upper legs and the upper end of the lower legs and retinal hemorrhages in both eyes. Shah attributed these injuries to vigorous shaking either with or without impact to the head. In Shah's opinion, the fractures were caused by the flaying of the extremities during shaking and the retinal hemorrhages were caused by either shaking or the shunting off of blood to the brain in response to excessive pressure. Shah also testified that the presence of a subdural hematoma in combination with retinal hemorrhages and fractures of the extremities is consistent with shaken baby syndrome.
Shah testified that in her own experience shaking combined with impact would be required to cause the severity of the injuries sustained by the victim.
Shah disagreed with McLendon's diagnosis of DIC. In Shah's opinion, if DIC was present, hemorrhaging would have been visible in, inter alia, the lungs, heart, liver, kidneys, the stomach, the intestine and the skin. During the autopsy, Shah made no such findings. Moreover Shah found clotting in the hemorrhagic blood throughout the spine and at the base of the spine. Thus in Shah's opinion, the victim did not suffer from DIC. Shah noted that Uphoff's gross and microscopic examination of the brain, spinal cord and eyes also did not disclose the presence of DIC.
Shah also disagreed with McLendon's conclusion that axonal injury was absent. Shah testified that if axonal injury is present, the brain will be very swollen on gross examination and microscopic examination will show a tearing of the fibers connecting the brain to the axons. If, however, a person is maintained on a respirator for a period of time, the quality of the axons degrade and become darker over time. Additionally the torn fibers will themselves develop edema. Both of these conditions may mask the presence of shearing. Thus although Uphoff did not observe axonal shearing, Shah stated that it could not be ruled out.
The evidence presented in the criminal trial showed that the victim was maintained on a respirator for approximately thirty-six hours prior to his demise.
Finally Shah disagreed with McLendon's claim that the lack of hemorrhaging at the site of the various fractures indicated the fractures were caused at a different time. Shah testified that although she would have expected to find hemorrhaging, the absence of hemorrhaging may be due to the size of the fracture, the degree of separation between the bones and the fact that these bony areas are avascular.
On cross examination, Shah conceded that she did not observe any external or internal bruising to the victim's body. Shah also agreed with the scientific literature which holds that a child suffering a subdural hematoma could maintain consciousness for a period of time and present as fussy, lethargic, not eating properly, suffering seizures and emitting a high pitched scream.
The respondent also presented Betty Spivack in rebuttal. Spivack is board certified in pediatrics and until 1999 was board certified in pediatric intensive care. From 1987-1995, Spivack was director of the pediatric intensive care unit at Hartford Hospital. During this period child abuse injuries consumed twenty per cent of her practice and she treated 1,200 children suffering from both accidental and non accidental head trauma. In 1995, Spivack stepped down from her position as director of pediatric intensive care to devote the majority of her practice, seventy percent, to child abuse cases.
Spivack allowed this certification to elapse in 2000.
Beginning in the mid-1980s, Spivack began to familiarize herself with the literature involving the biomechanics of head injury especially as applied to children. Spivack has published on the subject in medical and scientific journals and books. Spivack has also peer reviewed articles in the field of child abuse and has sat on the editorial board of the Encyclopedia of Forensic Science and Pathology. Spivack is eligible to sit for the board examination in child abuse which is scheduled to be given for the first time in 2010. For the previous six years, Spivack has been a consultant to the Kentucky office of the medical examiner and has reviewed one thousand cases involving head trauma.
Spivack recapped her findings from 1994 as to the victim's injuries including that he suffered from a head injury, subsequent cardiac arrest and the cessation of breathing for an extended period of time. The victim was dead upon arrival at the hospital, was revived and then died a second time. The CT scan revealed a bilateral subdural hematoma, clinical examination revealed bilateral retinal hemorrhages and x-rays showed multiple metaphyseal fractures of the legs and a fracture of the right acromion. During his course in the hospital, the victim displayed early signs of DIC which ameliorated itself prior to the victim's removal from the respirator.
According to Spivack the results of the various blood tests which were conducted did not show blood levels consistent with DIC.
In Spivack's opinion, the victim's head injury was caused by severe rotational forces exerted on the victim's head which resulted in a bilateral subdural hematoma. In combination with the severity and bilateral nature of the retinal hemorrhages as well as the location and number of the skeletal fractures, Spivack concluded that the injuries were not accidental but were inflicted. Spivack additionally testified that the severity of the head injury would have caused the victim to lose consciousness very rapidly after injury and certainly no later than one-half hour after the injury. While Spivack agreed that the victim may have had a lucid period, due to the severity of his injuries, any lucid period would not have been characterized by high pitched crying, fussiness or not eating properly. In Spivack's opinion, based upon the extremely high level of acid in the victim's blood, the difficulty resuscitating him and the persistent organ failure after resuscitation, the victim's cardiac arrest occurred within the hour prior to his hospitalization.
Spivack testified that bilateral hemorrhages are rarely seen in cases of accidental head trauma. She also described the presence in one eye of retinoskesis, a shearing of the layers of the retina often seen in children diagnosed with abusive head trauma.
In support of her various conclusions, Spivack pointed to numerous scientific articles published prior to petitioner's criminal trial and with which she was familiar at the time of petitioner's criminal trial. Spivack testified that Gennarelli et al and other studies support Spivack's claim that the presence of a subdural hematoma indicated that the injury was more likely caused by rotational forces such as shaking rather than translational forces such as from a fall. Additionally Spivack cited Johnson et al and other studies which concluded that retinal hemorrhages rarely occur in cases of accidental head trauma resulting from either falls or from car accidents. Spivack further cited a study by Willman et al which found that lucid intervals, defined as the ability to feed, the ability to respond to surroundings, the ability to demonstrate age-appropriate volitional motor activity and the ability to be consoled, are almost never seen in cases of fatal head injury in children.
See T. A. Gennarelli, L.E. Thibault and A.K. Ommaya, "Pathophysiologic Responses to Rotational and Translational Accelerations of the Head," Proceedings of the Fifteenth Stapp Car Crash Conference, paper 720970. Society of Automotive Engineers, Inc. (1972) in which the authors imputed translational force to twelve monkeys and rotational force to an additional thirteen monkeys. The 13 monkeys subjected to rotational force all suffered concussions while none of the translational force animals sustained concussions. Additionally all rotational force animals sustained subdural hematomas in which the blood was thicker and diffused over the posterior while only 5 translational monkeys had subdural hematomas and the coverage of the blood was limited to a portion of the frontal pole. Also diffuse subarachnoid hematomas were seen in all rotational force animals but not in the translational force animals. Accord, L. Ewing-Cobbs, supra, Pediatrics, Vol. 102, 2: 300-07.
See D.L. Johnson, D. Braun, and D. Friendly, "Accidental Head Trauma and Retinal Hemorrhage," Neurosurgery, 33(2): 231-235 (1993) in which the authors studied children with accidental head injuries in association with sufficient force to cause skull fractures and/or intra cranial hemorrhages. Only 2 of the 140 children studied suffered retinal hemorrhages and those 2 children were subjected to rotational force as a result of a side impact motor vehicle collision. See also A-C Duhaime, C.W. Christian, L.B. Rorke and R.A. Zimmerman, "Nonaccidental Head Injury in Infants — The `Shaken-Baby Syndrome,'" New England Journal of Medicine, Vol. 338, 25: 1822-29 (1998) in which the authors concluded that a finding of severe bilateral retinal hemorrhages with retinal folds or detachment is particularly suggestive of inflicted head injury. Accord, L. Ewing-Cobbs, L. Kramer, M. Prasad, D.N. Canales, P.T. Louis, J.M. Fletcher, H. Vollero, S.H. Landry and K. Cheung, "Neuroimaging, Physical, and Developmental Findings After Inflicted and Noninflicted Traumatic Brain Injury in Young Children," Pediatrics, Vol. 102, 2: 300-07 (1998).
K.Y. Willman, D. E. Bank, M. Senac, and D.L. Chadwick, "Restricting the Time of Injury in Fatal Inflicted Head Injuries," Child Abuse and Neglect, Vol. 21, 10: 929-40 (1997). Willman et al., studied 95 children who had sustained fatal head injuries and found that only 1 child had a lucid interval subsequent to the infliction of the injury. Moreover this child had suffered an epidural hematoma, not a subdural hematoma. The authors concluded that "the presence in a child of a subarachnoid hemorrhage or a subdural hemorrhage makes a lucid interval unlikely" and "in cases of fatal [head injury] where the history claims that the child looked well following the injury and only later began to act abnormal, the story must be questioned and nonaccidental trauma must be suspected." Id. at 938-39. "Given the obvious serious medical condition of the vast majority of the study group immediately after injury, one would expect any competent caretaker to call for medical assistance within moments of any similar head injury." Id. at 937.
According to Spivack, in the present case, there is insufficient evidence to conclusively determine that the victim suffered blunt trauma to the head. Spivack generally agrees, however, with Duhaime et al's conclusion that shaken baby syndrome, in its most severe form, is usually not caused by shaking alone, and that impact, even against a soft surface, can create sufficient force to cause a severe head injury. Spivack believes that the absence of evidence of an impact injury in the present case suggests that any impact was made against a soft surface which diffused the imparted forces over a large area.
Spivack further testified that Duhaime et al's (1987) conclusion that impact is necessary has been the subject of criticism in the scientific community. Duhaime et al's biomechanical tests were not conducted on live animals but rather on crash test dummies with three different models of necks and with "heads" stuffed with cotton soaked in water. This methodology raises questions about the validity of the study's conclusions. Spivack also pointed out Duhaime et al. conceded in a later article that the issue of "whether shaking alone can cause the constellation of findings associated with [shaken baby] syndrome is still debated . . ." A-C. Duhaime, C.W. Christian, L.B. Rorke and R.A. Zimmerman, "Nonaccidental Head Injury in Infants — The `Shaken-Baby Syndrome,'" New England Journal of Medicine, Vol. 338, 25:1822-29 (1998).
Spivack is also familiar with Aoki et al's study of lucidity after head injury. According to Spivack, Aoki's conclusions also rest on suspect methodology in that he classified the mechanism of the head injury and determined the existence and length of the period of lucidity by relying solely on the history provided by the child's caretaker. Additionally in Aoki's study, only two of the twenty-six children studied died as a result of their head injuries.
Additional facts will be discussed as necessary.
DISCUSSION Procedural Default
The respondent's return raises the affirmative defense of procedural default only as to the claims in count one. The petitioner has filed a reply denying procedural default applies and asserting she will show cause and prejudice for such default should the defense apply. The court must, therefore, first address the affirmative defense. See Orcutt v. Commissioner of Correction, 284 Conn. 724, 738 n. 23, 937 A.2d 656 (2007) ("a habeas court should expressly address and resolve the threshold issue of procedural default when the issue has been raised as a defense").
The first count alleges a variety of claims pertaining to expert witness testimony presented in the criminal case. The petitioner pinpoints alleged deficiencies by these expert witnesses and claims that these deficiencies deprived him of his constitutional right to due process under the fifth and fourteenth amendments to the United States constitution and article first, §§ 8 and 9 of the Connecticut constitution. To illustrate, one of the allegations in count one is that there existed and exists no scientific basis for degree of force testimony presented in the underlying criminal trial by both attending physicians and medical examiners. Another example is that attending physicians provided opinions as to the timing of the claimed fatal injury, but that there was no direct evidence (e.g., eyewitness account) that would permit the expert witnesses to render their respective opinions as to the timing of the injury.
The respondent asserts that the habeas court cannot review the claims in count one because the petitioner did not raise them at trial or on appeal. The respondent cites to State v. Grant, 68 Conn.App. 351 (2002), the petitioner's direct appeal, to illustrate that the petitioner did not raise these claims on her direct appeal. The respondent avers that the petitioner cannot make the required conjunctive showing of cause and prejudice to excuse the procedural default. The petitioner's reply denies the defense of procedural default applies to her due process claim. Should the defense apply, however, the petitioner's argument is that: "The State knew or should have known that its witnesses were not qualified to render many, if not all, of the `expert' opinions elicited and that opinions presented were not then supported by science generally or to the degree asserted by the witnesses. Evocation of false testimony, or failure to correct false testimony when it appears, violates a criminal defendant's right to due process. See Napue v. Illinois, 360 U.S. 264 (1959), accord Jenkins v. Artuz, 294 F.3d 284 (2nd Cir. 2002) and Mariana Islands v. Bowie, 243 F.3d 1109 (9th Cir. 2001); State v. Reddick, 197 Conn. 115, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1109, 1067 (1986). Additionally, facts supporting Count One lie outside the record and, therefore, were not properly raised via direct appeal. Notwithstanding these considerations, dismissal of Count One on procedural grounds, that is, before evidence can be adduced, would result in a fundamental miscarriage of justice." Reply, at pgs. 1-2.
The petitioner's claim in count one concedes that she did not raise these claims on direct appeal.
"The appropriate standard for reviewability of habeas claims that were not properly raised at trial . . . or on direct appeal . . . because of a procedural default is the cause and prejudice standard. Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition . . . [T]he cause and prejudice test is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance . . . (Citations omitted; internal quotation marks omitted.) Cobham v. Commissioner of Correction, 258 Conn. 30, 40, 779 A.2d 80 (2001)." Solek v. Commissioner of Correction, 107 Conn.App. 473, 478 n. 2 (2008).
Procedural default does not result in the dismissal of a claim. When a claim is procedurally defaulted it is not addressed on the merits and is not, therefore, dismissed. See, e.g., Henderson v. Commissioner of Correction, 104 Conn.App. 557, 570, 935 A.2d 162 (2007), cert. denied, 285 Conn. 911, 935 A.2d 1089 (2008). Stated somewhat differently, a habeas corpus petitioner must prove, by showing cause for the procedural default and the resultant prejudice, that the petitioner is entitled to have such a claim addressed on the merits in a forum where the claim should not be raised for the first time. Procedural default thus disentitles a habeas corpus petitioner from having a claim addressed on the merits.
The petitioner alleges in the reply that the "State knew or should have known that its witnesses were not qualified to render many, if not all, of the `expert' opinions elicited and that opinions presented were not then supported by science generally or to the degree asserted by the witnesses." Reply, at pg. 1. Whether or not the state's experts were properly qualified was a determination to be made by the trial court after trial defense counsel's voir dire, objections, etc., if any. Moreover, trial court error on the qualifications and admission of expert testimony clearly is an evidentiary issue to be raised on appeal if properly preserved. See, e.g., State v. Thomas, 96 Conn.App. 578, 587-88, 901 A.2d 76, cert. denied, 280 Conn. 912, 908 A.2d 542 (2006) (erroneous admission of expert testimony concerning an ultimate fact remains evidentiary in nature and not of constitutional magnitude). In her second amended petition, the petitioner concedes that she did not raise these claims on direct appeal; and a review of the criminal trial transcript shows that she also did not raise these claims at trial. Accordingly the petitioner is procedurally defaulted as to count one unless she alleges and proves cause and prejudice to excuse the default.
"Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues." (Internal quotation marks omitted.) State v. Ali, 233 Conn. 403, 431, 660 A.2d 337 (1995).
In closing argument, the petitioner claimed that the cause and prejudice for the procedural default was that in the criminal trial, the state adduced testimony of the existence of SBS, that this testimony is "false," and therefore the action of the state in adducing this testimony was a due process violation. Thus, according to the petitioner, procedural default does not apply. The respondent countered that there was no false testimony in the trial in that SBS is recognized in the medical and scientific community and that SBS is a general term which includes shaken baby, sudden impact, acceleration/deceleration and abusive head trauma. See Duhaime's 1998 article (p. 1822, ¶ 1) in which she defines SBS as "infantile inflicted head injury" — implying therefore both that SBS is a valid diagnosis and that the term shaken baby syndrome includes cases of inflicted injury. The Duhaime article also concedes the issue of whether shaking alone is sufficient to cause these injuries is still debated. Foley, Shah and Spivack all testified at the criminal trial that the victim's injuries may have been caused by impact. Lastly, even the petitioner's own experts believe in the existence of SBS. Accordingly, the petitioner's arguments, that SBS is not recognized in the scientific community and that the state's witnesses testified falsely, are unsubstantiated and wholly without merit.
As to the cases cited to by the petitioner in her reply, Napue involved the knowing use of false evidence to obtain a conviction, which resulted in constitutional violation of significant magnitude. Jenkins also involved the knowing use of false testimony in a case factually similar to those in Napue. In Bowie, the court was confronted with a criminal conviction in which the prosecution " . . . admitted [its] decision before the criminal trial not to investigate concrete documentary evidence suggesting that the prosecution's accomplice witnesses against Bowie — who had been granted leniency in return for their testimony — were conspiring to testify falsely against him." Mariana Islands v. Bowie, supra, 243 F.3d 1111. The court concluded that the prosecution's " . . . unjustifiable refusal to act deprived Bowie of liberty without due process of law in violation of the Fourteenth Amendment of the Constitution, [and] reverse[d] and remand[ed] for a new trial." Id. Lastly, a review of Reddick leads this court to conclude that case provides no guidance or authority on the claim at issue and was cited to in error.
Based upon the foregoing, the petitioner has failed to allege and prove the cause and prejudice necessary to overcome the defense of procedural default as to the claims in count one. The court concludes that the petitioner is procedurally defaulted from raising the claims in count one and the court will not address these defaulted claims on the merits. Even if procedural default were inapplicable, the petitioner has completely failed to substantiate the claims in count one.
COUNT THREE
The petitioner raises a great number of claims against trial defense counsel. Although there are nineteen (19) separately enumerated allegations of deficient performance, several of these separate allegations are virtually identical and are mere verbal reformulations of other claims and thus indistinguishable. After restating the standard this court must apply to the claims of ineffective assistance of counsel, the court nevertheless will seriatim address the claims.
Standard for Ineffective Assistance of Counsel
"In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to reversal of a conviction due to ineffective assistance of counsel. First, the [petitioner] must show that counsel's performance was deficient . . . Second, the [petitioner] must show that the deficient performance prejudiced the defense . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable . . . The first part of the Strickland analysis requires the petitioner to establish that . . . counsel's representation fell below an objective standard of reasonableness considering all of the circumstances . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy . . .
"Turning to the prejudice component of the Strickland test, [i]t is not enough for the [petitioner] to show that the errors [made by counsel] had some conceivable effect on the outcome of the proceeding . . . Rather, [the petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt . . ." (Citations omitted.) Peruccio v. Commissioner of Correction, 107 Conn.App. 66, 71-72 (2008).
"[The Peruccio court was] mindful that, under certain circumstances, the failure to use any expert can result in a determination that a criminal defendant was denied the effective assistance of counsel. Siano v. Warden, 31 Conn.App. 94, 99-105, 623 A.2d 1035, cert. denied, 226 Conn. 910, 628 A.2d 984 (1993) (failure to call orthopedic surgeon who would have testified that due to extensive injuries, it would have been difficult for petitioner to carry heavy computer equipment from residence constituted inadequate assistance of counsel); see also Bell v. Miller, 500 F.3d 149 (2d Cir. 2007) (failure to present expert testimony regarding effects of trauma, significant blood loss and certain medication on memory of witness constituted ineffective assistance); Lindstadt v. Keane, 239 F.3d 191 (2d Cir. 2001) (failure to consult expert on sexual abuse of children constituted inadequate assistance)." Peruccio v. Commissioner of Correction, supra, 107 Conn.App. 76.
"The failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense. (Internal quotation marks omitted.) Alvarez v. Commissioner of Correction, 79 Conn.App. 847, 851, 832 A.2d 102, cert. denied, 266 Conn. 933, 837 A.2d 804 (2003)." Servello v. Commissioner of Correction, 95 Conn.App. 753, 763-64, cert. denied, 280 Conn. 904 (2006).
Failure to Adequately Prepare for Trial
The petitioner claims Bernstein did not prepare adequately for trial, including locating defense witnesses and ensuring the service of subpoenas and/or their appearance. As further narrowed by the petitioner, this claim only pertains to expert witnesses. Thus, the petitioner here claims that Bernstein should have used a neurosurgeon, a pathologist specializing in shaken baby syndrome or at least one who did not believe shaking alone was sufficient, as well as a biomechanical engineer.
About six months prior to the petitioner's criminal trial, Bernstein had been co-counsel with Fred DiCaprio in another shaken baby case in which the defendant was the victim's babysitter. To prepare for that case Bernstein had reviewed a great deal of scientific literature relating to shaken baby syndrome and had consulted with numerous experts. In the petitioner's case, Bernstein went over the medical reports and witnesses statements with DiCaprio and Michael Isko, who also had familiarity and expertise in trying shaken baby cases. Bernstein also reviewed numerous scientific articles and treatises dealing with the issue of shaken baby syndrome which she had received from defense counsel in the petitioner's juvenile court proceedings.
Bernstein consulted with Taft, a pathologist hired by Goodrow, but decided not to utilize him as an expert witness because his testimony would likely have caused more harm than benefit to the defense case. Taft suggested that Bernstein pursue the timing issue and consult with a radiologist. As a result of Taft's suggestion, Bernstein hired Sze, the head of radiology at Yale, who had a great deal experience in looking at head trauma in children. Based on Sze's opinion that the injuries could have occurred as much as 18-24 hours before the scans, Bernstein decided to utilize Sze and focus solely on the timing of the injuries to show petitioner had not caused the child's death. Bernstein also telephoned Hope Seeley, who ultimately appeared before this very court as the petitioner's expert on criminal defense practice, to get advice concerning the retention of an expert. Bernstein conceded at the habeas corpus proceeding that she did not speak to any expert about challenging the existence of shaken baby syndrome.
Bernstein called Attorney Hope Seeley to get advice concerning such an expert, but cannot recall whether she obtained Sze's name from Seeley. Seeley testified that she did not recall recommending Sze.
"[T]he presentation of testimonial evidence is a matter of trial strategy . . . The failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense." Adorno v. Commissioner of Correction, 66 Conn.App. 179, 186, 783 A.2d 1202, cert. denied, 258 Conn. 943, 786 A.2d 428 (2001), citing and quoting Nieves v. Commissioner of Correction, 51 Conn.App. 615, 624, 724 A.2d 508, cert. denied, 248 Conn. 905, 731 A.2d 309 (1999). "The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner." Holley v. Commissioner of Correction, 62 Conn.App. 170, 175 (2001). "Mere conjecture and speculation are not enough to support a showing of prejudice." (Citation omitted.) Burke v. Commissioner of Correction, 90 Conn.App. 370, 278, cert. denied, 275 Conn. 926 (2005).
The petitioner in this matter presented expert testimony in support of her habeas corpus claims. Chris Van Ee, a biomechanical engineer, Roger McLendon, chief of neuropathology at Duke University, and Seeley, an experienced criminal defense attorney, were petitioner's expert witnesses. It is with some irony that the court notes the petitioner herself did not call a neurosurgeon in support of her claims. Adding to the irony is that Seeley herself did not utilize a pathologist in her juvenile court shaken baby syndrome case, but did employ Sze. These variations in how to develop expert testimony and precisely which experts to employ at trial underscore that these decisions are classic trial strategy entrusted to counsel.
The petitioner here has not demonstrated that Bernstein's alleged failure to utilize a neurosurgeon, a pathologist specializing in shaken baby syndrome or at least one who did not believe shaking alone was sufficient, and a biomechanical engineer would have helped establish her defense on the timing of the injuries. The essence of Van Ee's and McClendon's testimonies, distilled to their respective cores, is that shaking alone did not cause the victim's death or that the cause of death was not shaking at all but an impact injury. In light of the fact that none of the state's expert witnesses at the criminal trial ruled out impact to the head as the cause of the victim's injuries, Van Ee's and McClendon's conclusions were of limited or no value to the defense.
Moreover, even if the testimonies of Van Ee and McClendon regarding the necessity of impact could, in some way, have been helpful to the defense, it is noteworthy that their testimonies were not uncontroverted. Van Ee conceded during cross examination that he was not aware that the petitioner had given varying versions of the events of August 12, that he had not been provided with the petitioner's version of the events from the time the victim came into her custody and that he had not conducted any experiments duplicating the circumstances in the petitioner's case. Van Ee also admitted that he did not attempt to account for the subdural hematoma of the entire spinal cord or the fractures of the legs and acromion. Van Ee further testified that he had not seen the autopsy photographs of the victim's brain, the x-rays or the CT scans, that he had not reviewed the Hartford Hospital records and that he had not spoken with Fisher or Spivack. Additionally the respondent called Malka Shah as a rebuttal witness and she disagreed with numerous of McClendon's conclusions and diagnoses. Lastly, McClendon's testimony, like Taft's, was a two-edged sword in that his conclusion these injuries occurred as late as one or two p.m. on the day the victim was hospitalized seriously undermined the defense that the victim's injuries occurred prior to the petitioner assuming custody at nine a.m.
Given all of the foregoing, the claim that Bernstein provided ineffective assistance because she should have used a neurosurgeon, a pathologist specializing in shaken baby syndrome or at least one who did not believe shaking alone was sufficient, as well as a biomechanical engineer consists of speculation without demonstrable reality. Bernstein's trial defense strategy as to how employ expert testimony was both reasonable and reasonably implemented. Accordingly the claim that Bernstein failed to adequately prepare for trial is denied.
Failure to Present Available and Favorable Information in Support of Defense
The petitioner's claim here as developed at the habeas corpus trial is three-fold: first, the failure to present evidence to counter the state's claim that diffuse axonal injury was present; second, the failure to question witnesses during cross examination that there may have been a brief period of lucidity; and third, the failure to use scientific articles to cross examine the state's witnesses who opined that shaking alone was sufficient to cause the victim's injuries.
As to the first alleged failure, the petitioner claims that Foley and Spivack testified during the criminal trial that axonal injury, specifically tearing, was present but that Spivack's and Shah's testimony at the habeas trial contradict this. This court's review of the testimony proffered by Foley and Spivack during the criminal trial does not show either specifically concluded or claimed the victim suffered axonal tearing.
During the habeas trial Shah disagreed with McLendon's conclusion that axonal injury, more specifically diffuse axonal injury, was absent. McLendon testified at the habeas trial that he saw axonal injury due to the victim being maintained on a respirator for approximately thirty-six hours. McLendon distinguished axonal injury from diffuse axonal injury, which he did not see. The absence of diffuse axonal injury, according to McLendon, supports his opinion that the victim had a period of lucidity post-injury. Shah testified that if a person is maintained on a respirator, the appearance of the axons will become degraded and darker over time. Additionally, the torn fibers themselves will develop edema. According to Shah, both of these conditions can mask the presence of axonal shearing. Shah concluded therefore that axonal shearing could not be ruled out in the victim's case. And as to Spivack, her testimony at the habeas trial did not contradict her prior testimony during the criminal trial.
The second alleged failure arises from the petitioner's claim that testimony presented by the state indicated the victim was unconscious almost immediately and did not regain consciousness. Bernstein however had a note in her file that Shah opined during a meeting with Bernstein that there may have been a post-injury period of lucidity. Bernstein admitted that in her notes of the interview with Shah, Shah had stated that after the concussion, the victim could have a moment of unconsciousness and then could appear fussy and not eat properly. Bernstein further testified that these notes were not, however, a verbatim account of what Shah had told her, nor did Shah ever adopt these notes.
McClendon testified that he believes the victim experienced a period of lucidity prior to his death. McLendon indicated that his opinion as to the victim's lucidity was based upon the size of the hematoma, the absence of cerebral contusions, the absence of diffuse axonal injury and the absence of lethal trauma to the central nervous system. McLendon did not give an opinion as to the timing or the duration of the period of lucidity, but noted that he had treated a six-week-old child who had suffered a larger subdural hematoma followed by a period of lucidity and who had survived. McLendon also cited Aoki's study as support for his conclusion that the victim attained lucidity. He conceded, however, that during any period of lucidity, the victim would not necessarily appear symptomatically normal. McClendon's own treatment of an infant with a subdural hematoma is easily distinguishable on the ground that the child survived. Any support from the Aoki study is also easily undermined based on the methodology employed by the researchers. Finally the value of McClendon's testimony is also lessened by his conclusion that the victim would likely not appear asymptomatic combined with other evidence in the case that the petitioner, who had medical training, delayed in calling 911.
Aoki determined the mechanism of injury, the existence of a period of lucidity and the length of the period of lucidity by relying solely on the history provided by the child's caretaker. Moreover, in Aoki's study only two of the subjects suffered a fatal head injury.
The third alleged failure is that Bernstein did not use scientific articles to cross examine the state's witnesses who opined that shaking alone was sufficient to cause the victim's injuries. Spivack testified regarding these articles, in particular the 1987 Duhaime study, at the habeas trial. Spivack was familiar with that study in 2000 at the time of petitioner's criminal trial. During her habeas testimony Spivack discussed the deficiencies in that study and, presumably, would have similarly testified during the criminal trial. Spivack testified that Duhaime, et al's (1987) conclusion that impact is necessary has been the subject of criticism in the scientific community. In 1998, Duhaime conceded in a subsequent article that there was still debate as to whether shaking alone can cause shaken baby syndrome.
According to Spivack, in the present case, there is insufficient evidence to conclusively determine that the victim suffered blunt trauma to the head. Spivack generally agrees, however, with Duhaime et al.'s conclusion that shaken baby syndrome, in its most severe form, is usually not caused by shaking alone, and that impact, even against a soft surface, can create sufficient force to cause a severe head injury. Spivack believes that the absence of evidence of an impact injury in the present case suggests that any impact was made against a soft surface which diffused the imparted forces over a large area.
Even assuming that Bernstein performed deficiently by failing to present what the petitioner identifies as available and favorable information in support of defense, which the petitioner has not proven, the petitioner has in no way proven that he was prejudiced by these alleged deficiencies. The petitioner has not demonstrated that there is a reasonable probability that, but for counsel's alleged unprofessional errors, the result of the proceeding would have been different. The petitioner has not undermined this court's confidence in the outcome of the proceeding.
The petitioner has in no way undermined the mountain of other evidence arrayed against her at the criminal trial. Most notably this evidence consisted of the petitioner's several varying and inconsistent versions of the events of August 12, 1994; the petitioner's failure to get help for the victim until Lewis told her to call 911; her less than truthful 911 call; Lewis' description of the victim's condition throughout the morning of August 12; the petitioner's own trial testimony which contradicted virtually all of the state's fact witnesses and her instructions to Lewis to lie to the police.
Failure to Conduct Adequate Investigation Into Prosecution Witnesses and their Anticipated Testimony
The petitioner's next claim, as developed at the habeas corpus trial, is two-fold. First, that Bernstein did not educate herself properly as to the controversies surrounding shaken baby syndrome. The focus of the petitioner's claims here is that shaking alone is not enough to cause shaken baby syndrome and that retinal hemorrhages are not necessarily a sign of shaken baby syndrome. Even if Bernstein had educated herself and used such "evidence" in her cross examination of the state's witnesses, it is unclear what effect that would have had. As stated previously, none of the state's expert witnesses limited their opinion as to the cause of the victim's injuries to shaking alone. Rather each state's witness gave several probable causes for the injuries including a fall, an object striking the head or shaking. Moreover, as stated before, in 1998 Duhaime conceded that the issue of whether shaking alone is sufficient was still not decided. Additionally Duhaime's 1992 study found that retinal hemorrhages are rarely found in accidental head injuries but are commonly found in inflicted injuries.
At closing argument the petitioner also withdrew that aspect of this claim that might pertain to fact witnesses and only proceeded with the claim as to expert witnesses.
Second, the petitioner claims Bernstein failed to identify and utilize the "proper" expert to challenge the state's experts. According to the petitioner, Bernstein used Taft but his specialty was not shaken baby syndrome; instead, Bernstein should have used a pathologist with expertise in shaken baby syndrome, a neurosurgeon and a biomechanical engineer. The court has already discussed a variation of this claim above. Nevertheless, the court emphasizes that in the habeas case, the petitioner did not present a pathologist with expertise in shaken baby syndrome (McLendon's specialty as a pathologist is brain tumors) or present a neurosurgeon at all. Thus the petitioner has failed to prove that a pathologist with expertise in shaken baby syndrome or a neurosurgeon would have contradicted the state's expert witnesses. Additionally, the testimony of Van Ee did not undermine the credibility of Fisher, Foley, Spivack, Shah and Uphoff. Lastly, as previously noted, Seeley herself also did not utilize a neuropathologist in her juvenile court matter involving shaken baby syndrome.
"The failure of the petitioner to offer evidence as to what [a witness] would have testified is fatal to his claim." Nieves v. Commissioner of Correction, 51 Conn.App. 615, 623, 724 A.2d 508, cert. denied, 248 Conn. 905, 731 A.2d 309 (1999).
The court finds, based on the foregoing, that the petitioner has failed to prove both deficient performance by Bernstein and that she was prejudiced thereby. The petitioner has not undermined this court's confidence in the outcome of the proceeding.
Failure to Adequately Obtain Information from the Prosecuting Attorney
This allegation claims that Bernstein failed to adequately obtain information either through seeking a ruling on the discovery motion or via reviewing the prosecution's file in accordance with an open file policy. As developed by the petitioner during the habeas corpus trial, the claim more specifically is that Bernstein should have been able to "discover" that Spivack's opinion relied on the results of the autopsy. There was no evidence that Spivack ever filed a written report of her findings or her opinions, so it is unclear whether Bernstein could have discovered that Spivack relied on the autopsy findings merely by filing a motion for discovery. It is possible that a motion for deposition might have allowed Bernstein to discover these facts. Nevertheless, the petitioner has failed to prove how Bernstein's knowledge that Spivack relied on the autopsy report would have changed the outcome or assisted the defense in any way. This basis for ineffective assistance of counsel is without merit.
Failure to Adequately Employ the Information Available to Assist Defense
The petitioner next claims that Bernstein failed to adequately employ the information available to the defense in preparing and presenting the petitioner's case and in defending against the prosecution's case. As developed at the habeas trial, the petitioner's claim here is that Bernstein failed to cross examine the state's witnesses with the fact that the victim had a lucid interval after the injury and/or that the victim was fussy before he came into petitioner's care.
The petitioner additionally claims that the testimony by her neighbor Lewis as well as her own testimony, when viewed together with the scientific articles support their claim that Lamar had a lucid period post-injury. The respondent counters that the medical literature indicates that a small child, if lucid at all, would have a very short period of lucidity. The respondent's contention finds confirmation in the Aoki study in which 21 out of 22 children had a lucid period of 15 minutes or less and the Willman study which found that lucid intervals are almost never seen in children with fatal head injuries. The petitioner points to the Plunkett study cited by Van Ee. The court notes that this is a 2001 study. Bernstein could not have been aware of its findings in time for the criminal trial which was held in 2000.
Prior to the criminal trial, Spivack was familiar with these two studies and presumably would have testified to their conclusions if the issue of lucidity had been introduced at the trial.
The court finds based on the foregoing that the petitioner has not shown deficient performance by Bernstein for failure to adequately employ information to defend against the claims. Even if the court were to assume the petitioner had so shown, which she has not, there has been no showing that the petitioner was prejudiced thereby. Again, the court's confidence in outcome of the trial has not been undermined.
Failure to Challenge State's Failure to Formally Offer Expert Witnesses
The petitioner's next two claims are that Bernstein rendered ineffective assistance of counsel by failing to challenge the state's failure to formally offer both attending physicians and doctors from the medical examiner's office as expert witnesses, as well as failing to request to voir dire any of these expert witnesses when they were offered as such.
The petitioner's operative complaint contains two paragraphs numbered #34. Because both allege that Bernstein failed to challenge the state's failure to formally offer expert witnesses, the court has merged the two claims.
"Except in malpractice cases, it is not essential that an expert witness possess any particular credential, such as a license, in order to be qualified to testify, so long as his education or experience indicate that he has knowledge on a relevant subject significantly greater than that of persons lacking such education or experience . . . Once a witness has been qualified as an expert, any objection to his testimony pertains to its weight, not to its admissibility . . ." (Internal citations omitted.) Pettit v. Hampton and Beech, Inc., 101 Conn.App. 502, 514, 922 A.2d 300 (2007).
"[I]n State v. Weinberg, 215 Conn. 231, 243, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S.Ct. 430, 112 L.Ed.2d 413 (1990), [the Supreme Court] adopted the approach used by the federal courts, holding that `where the competency of a witness is challenged, the threshold question to be answered by the court is whether the testimony of that witness is minimally credible.' The court concluded that `[i]f the testimony of a witness passes the test of minimum credibility, and is otherwise relevant, the testimony is admissible and the weight to be accorded it, in light of the witness' incapacity, is a question for the trier of fact.' Id., 243-44." State v. Holmes, 94 Conn.App. 494, 501, 892 A.2d 969, cert. denied, 278 Conn. 908, 899 A.2d 35 (2006).
"The credibility of expert witnesses and the weight to be given to their testimony and to that of lay witnesses . . . is determined by the trier of fact . . . In its consideration of the testimony of an expert witness, the [trier of fact] might weigh, as it sees fit, the expert's expertise, his opportunity to observe the defendant and to form an opinion, and his thoroughness. It might consider also the reasonableness of his judgments about the underlying facts and of the conclusions which he drew from them . . . It is well settled that the trier of fact can disbelieve any or all of the evidence proffered . . . including expert testimony, and can construe such evidence in a manner different from the parties' assertions . . ." (Citation omitted.) State v. Fernandez, 76 Conn.App. 183, 193, 818 A.2d 877, cert. denied, 264 Conn. 901, 823 A.2d 1220 (2003).
Spivack testified at the criminal trial she was licensed to practice in New York. At the habeas trial Spivack testified that her New York license had lapsed by the time of the criminal trial. Even if Bernstein had conducted voir dire and elicited this at the time of trial, which would have gone to the weight of Spivack's testimony and not to its admissibility, the petitioner here has failed to prove that Spivack's admission somehow would have altered the outcome of the trial.
The petitioner also alleges that because Crabbe, Fisher and Spivack were attending physicians, Shah and Uphoff were pathologists and Foley was a radiologist, Bernstein should have objected to their opinions regarding the causation of shaken baby syndrome as none of them were biomechanical engineers and therefore were not qualified to render an opinion as to causation. In State v. McClary, 207 Conn. 233, 541 A.2d 96 (1998), the Supreme Court addressed a similar argument in a shaken baby syndrome case in which some of same arguments were made.
"It has long been our rule that the qualification of an expert witness is within the discretion of the trial court and its decision will not be disturbed on appeal unless that discretion is abused . . . Further, [a]n expert medical witness may give his opinion as to the means used to inflict a particular injury, based on his deduction from the appearance of the injury itself. Such testimony is not accusatory, but only indicates the cause of [the injury]. Also, evidence of the cause . . . or more broadly, of the medical effect upon the human system of the infliction of injuries, is generally not within the sphere of the common knowledge of a lay witness and requires expert testimony . . . The expert opinion evidence did not `create facts'; rather, it was correctly and necessarily admitted to explain the full extent and cause of the victim's obvious injuries . . ." (Internal citations and quotation marks omitted.) Id., at 241.
Whether or not Bernstein somehow was deficient in failing to challenge the state's expert witnesses and not requesting to voir dire these witnesses, the petitioner here has not shown that she was prejudiced thereby. The petitioner has failed to undermine this court's confidence in the outcome of the criminal trial.
Failure to make Merritt or Porter Challenge to Admissibility of Scientific Evidence
The petitioner alleges that Bernstein made no Merritt or Porter challenge to the admissibility of scientific evidence. As developed at the habeas corpus trial the petitioner's claim here is that shaken baby syndrome is not a valid scientific theory in that shaking alone is insufficient to cause a subdural hematoma.
State v. Merritt, 36 Conn.App. 76, 647 A.2d 1021 (1994), appeal dismissed, 233 Conn. 302, 659 A.2d 706 (1995). "Seven years after Merritt, [the Appellate Court] decided State v. Russo, 62 Conn.App. 129, 134-36, 773 A.2d 965 (2001), in which [the court] modified [its] holding in Merritt to harmonize it with our Supreme Court's decision in State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997) (en banc), cert. denied, 523 U.S. 1058, 118 S.Ct. 1384, 140 L.Ed.2d 645 (1998).] Porter changed the applicable evidentiary test from the Frye [v. United States, 293 F. 1013 (D.C. Cir. 1923),] test to the broader test more recently articulated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)." State v. Balbi, 89 Conn.App. 567, 574, 874 A.2d 288, cert. denied, 275 Conn. 919, 883 A.2d 1246 (2005).
"The Porter court explained that despite its rejection of the Frye test, in which `general acceptance' was the sine qua non of admissibility, courts should continue to consider general acceptance in making admissibility determinations. The court stated: `[W]e suspect that general acceptance in the relevant scientific community will continue to be the significant, and often the only, issue . . . Thus, [a]lthough Frye may no longer be the standard for admissibility, general acceptance remains a part of the analysis, and in many cases its presence may alone be sufficient to admit the evidence . . . That is, if a trial court determines that a scientific methodology has gained general acceptance, then the Daubert inquiry will generally end and the conclusions derived from that methodology will generally be admissible.' (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Porter, supra, 241 Conn. 84-85.
"The Porter court went on to explain that if a principle or methodology has not gained general acceptance, scientific reliability may still be demonstrated through a trial judge's consideration of several non-exclusive factors. Those factors include (1) whether the methodology has been tested and subjected to peer review, (2) the known or potential rate of error, (3) the prestige and back ground of the expert witness supporting the evidence, (4) the extent to which the scientific technique in question relies on subjective interpretations and judgments by the testifying expert, and (5) whether the testifying expert can present the methodology underlying his scientific testimony in such a manner that the fact finder can reasonably draw its own conclusions therefrom. Id., 85-86." State v. Balbi, supra, 89 Conn.App. 574-75.
In McClary, the Supreme Court decided the " . . . question . . . whether shaken baby syndrome, i.e., the constellation of symptoms that led to the opinion of the physicians that [the victim's] injuries were caused by a severe shaking, is a `generally accepted' diagnosis in the medical field." State v. McClary, supra, 207 Conn. 246. The Supreme Court concluded that it was generally accepted. "[The] court . . . [found] that shaken baby syndrome (sometimes denoted as shaken infant syndrome or shaken child syndrome . . . is a generally recognized medical condition, and the state of the pertinent art or scientific knowledge [is] sufficiently developed to permit a reasonable opinion to be asserted. [T]he theory of cause of death here, violent shaking, resulting in subdural hematoma, has been accepted as legally sufficient in other cases." (Internal citations and quotation marks omitted.) Id.
The court has previously addressed a related claim that Bernstein did not educate herself properly as to the controversies surrounding shaken baby syndrome. The focus of the petitioner's claims there was that shaking alone is not enough to cause shaken baby syndrome and that retinal hemorrhages are not necessarily a sign of shaken baby syndrome. Even if Bernstein had educated herself and used such "evidence" in her cross examination of the state's witnesses, it is unclear what effect that would have had. The court previously noted that in the criminal trial, the state's expert witnesses never ruled out impact to the head as a cause of the victim's injuries. Moreover, Duhaime in 1998 conceded that the issue of whether shaking alone is sufficient was still not decided. Additionally Duhaime's 1992 study found that retinal hemorrhages are rarely found in accidental head injuries but are commonly found in inflicted injuries.
The petitioner has in no way shown that had Bernstein made a Porter or other similar challenge to the admissibility of scientific evidence she would have prevailed. The court finds, therefore, that the petitioner has failed to prove both deficient performance and the resultant prejudice.
Failure to Adequately Cross Examine Prosecution Witnesses
The next claim is that Bernstein failed to adequately cross examine prosecution witnesses concerning, inter alia, their purported expert medical opinions. The court fails to discern how this claim fundamentally diverges from the previously addressed claim that Bernstein failed to conduct adequate investigation into prosecution witnesses and their anticipated testimony. The petitioner has not shown that had Bernstein cross examined these witnesses they either would have been impeached or their credibility would have been sufficiently undermined to affect the outcome of the criminal trial. Accordingly, the court's confidence in the outcome of the criminal proceeding has not been undermined and the petitioner has, therefore, failed to prove Bernstein was ineffective.
Failure to Conduct Sufficient Investigation into Potential Defenses
The petitioner further asserts that Bernstein failed to conduct a sufficient investigation into the potential defenses to the prosecution's case. Bernstein decided after her investigation, review of applicable medical literature and discussions with both experts and attorneys experienced in shaken baby syndrome cases to only challenge the timing of the injury. Thus the petitioner here is claiming Bernstein rendered ineffective assistance by not raising other defenses and only presenting a defense based on the timing of the injury. According to the petitioner, Bernstein should also have challenged the theory of shaken baby syndrome via the literature and her own expert witnesses.
At the habeas trial, Bernstein testified she did not read any literature undermining shaken baby syndrome and her own expert Taft agreed with the state's witnesses as to the cause of the injury. At least three of the state's experts, Shah, Spivack and Foley, claimed that the victim's injury may have been caused by an impact. Other state's witnesses testified that shaking alone could have caused the injury but an impact could also have caused it. At the habeas trial, the petitioner's experts both claim that shaking alone would have been insufficient. McLendon went one step further in his testimony and stated definitively that the victim had an impact injury. Thus, McLendon's testimony at least in part corroborates the most credible of the state's expert witnesses (Shah, Spivack and Foley). This court furthermore notes that numerous of the state's witnesses (including Fisher, Spivack and Foley) claim that the terms shaken baby syndrome, shaken impact, abusive head trauma and acceleration/deceleration injuries are all used interchangeably. Notably Duhaime's 1998 article also used the term shaken baby syndrome to define inflicted injury.
"Constitutionally adequate assistance of counsel includes competent pretrial investigation. . . . The failure to conduct an adequate investigation cannot be excused in the penumbra of trial tactics . . . While it is incumbent on a trial counsel to conduct a prompt investigation of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction . . . [,] counsel need not track down each and every lead or personally investigate every evidentiary possibility before choosing a defense and developing it . . ." (Internal citations and quotation marks omitted.) Ostolaza v. Warden, 26 Conn.App. 758, 765, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692 (1992).
Bernstein extensively investigated this case, consulted with experts and discussed the matter with other counsel experienced in shaken baby syndrome cases. The petitioner has not shown that her actions and decisions fall outside the bounds of competent and effective advocacy. The petitioner also has not shown to this court what other defenses would have had a foreseeable chance of prevailing at trial if presented by Bernstein. Bernstein's decision to focus her defense efforts by challenging the timing of the injury were informed strategic decisions and the petitioner has failed to show otherwise. And as to Bernstein challenging the theory of shaken baby syndrome via the literature and her own expert witnesses, it is clear from McClary that shaken baby syndrome is a generally recognized medical condition. State v. McClary, supra, 207 Conn. 246. Even if that were not so, it bears repeating that the state's witnesses did not limit the cause of the victim's injuries to shaking alone. The claims that Bernstein rendered ineffective assistance by failing to conduct a sufficient investigation into the potential defenses to the prosecution's case are without merit and are denied.
Failure to Conduct Sufficient Investigation into Witnesses Available to Support Defenses
Although this claim at first glance may appear somewhat similar to previous claims, as developed at the habeas trial the petitioner's allegation here is that Bernstein should have used the experts that Seeley used and who were used in the Louise Woodward trial (i.e. a neurosurgeon and biomechanical engineer). Since no information about the facts in Seeley's case, including what her experts testified to, were presented to this court, the petitioner has failed to prove what information Seeley's experts would have testified to and how that information would have helped the petitioner's case. Stated differently, this court will neither speculate about what happened in Seeley's case nor how the experts testified in Seeley's case. The claim therefore is denied.
Failure to Secure the Services of Experts Necessary to Prepare for Trial and Support Case CT Page 9106
Again, this particular claim appears virtually identical to one or more previous claims addressed above. The petitioner here appears to challenge Bernstein's alleged failure to utilize a biomechanical expert and a neurosurgeon during the criminal trial. At the habeas trial, the petitioner did not present any evidence from a neurosurgeon, so this court is left in the untenable position of addressing this claim on the merits in the absence of evidence necessary to do so. This court has no idea how a neurosurgeon would have helped the petitioner's case. And as to a biomechanical expert proffering testimony in the criminal trial that shaking is not enough to have caused the victim's injuries, there was testimony by Spivack and Foley who both rendered opinions that an impact may have caused the victim's injuries. See also Duhaime's 1998 study, which recognizes that issue of shaking alone causing injuries is still unresolved.As with other prior iterations of the petitioner's claims that somehow challenge Bernstein's investigation and use of experts, the court again concludes that the petitioner has failed to prove deficient performance by Bernstein and the prejudice stemming therefrom.
Failure to Properly Address State's Theory of Criminal Liability and Elements of Proof
The petitioner here asserts yet another two variations on the claim that Bernstein failed to properly investigate the defense case. The petitioner asserts that Bernstein failed to investigate, research or review adequately available studies and articles concerning the prosecution's theory of criminal liability. The petitioner also asserts that Bernstein failed to conduct a sufficient investigation into the elements of the prosecution's proof, specifically the element of causation. Also, the petitioner claims Bernstein failed to use adequate available materials to impeach the testimony of prosecution witnesses.
This claim is nothing more than a reformulation of claims previously addressed in this opinion and the court's conclusion remains the same. Even if Bernstein had educated herself and used such "evidence" in her cross examination of the state's witnesses, the petitioner has failed to prove what effect that would have had. The court finds, based on the foregoing, that the petitioner has failed to prove both deficient performance by Bernstein and that she was prejudiced thereby. The petitioner has not undermined this court's confidence in the outcome of the proceeding.
CT Page 9107
Failure to Properly Preserve Issues for Appellate Review
The petitioner claims Bernstein failed to preserve issues for appellate review. More specifically, Bernstein's failure to preserve the validity of shaken baby syndrome as a scientific theory, failure to request a Porter hearing, and failure to object to unqualified experts offering an opinion that shaken baby syndrome caused the victim's injuries precluded these claims from being reviewed on appeal.In support of these allegations the petitioner claims that scientific studies published after McClary was decided in 1988, but before the criminal trial was held in 2000, called into question shaken baby syndrome. Thus, according to the petitioner, a Porter hearing may have succeeded in showing that shaken baby syndrome did not have general acceptance in the scientific community. The respondent argues that Bernstein's failure to preserve these issues was not deficient performance because the petitioner could have raised these unpreserved issues by seeking review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). The respondent also posits that shaken baby syndrome does have general acceptance because it is a term used generally to encompass shaken baby as well as shaken impact, abusive head trauma and acceleration/deceleration injuries.
In Golding, the Supreme Court held " . . . that a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail." Id., at 239-40.
It is well-established that a trial court's evidentiary rulings, including the admissibility of expert testimony or Porter hearings, generally are not of constitutional magnitude. See, e.g., State v. Toccaline, 258 Conn. 542, 550, 783 A.2d 450 (2001); State v. Whipper, 258 Conn. 229, 279, 780 A.2d 53 (2001); State v. Morgan, 70 Conn.App. 255, 265, 797 A.2d 616, cert. denied, 261 Conn. 919, 806 A.2d 1056 (2002). Thus the respondent's argument that the petitioner could have successfully sought and prevailed in a Golding review is to no avail.
The court does agree with the respondent's argument that shaken baby syndrome has general acceptance. While it may be true that the term shaken baby syndrome is used to encompass shaken baby as well as shaken impact, abusive head trauma and acceleration/deceleration injuries, the ability to interchange terms does not render a principle accepted generally. Since the Supreme Court in McClary held that shaken baby syndrome is a generally recognized medical condition, there has been not a single appellate decision in this state calling that holding into question. Furthermore, other jurisdictions subsequently have favorably cited to this holding. See, e.g., Johnson v. State, 933 So.2d 568, 570 (Fla.App. 1 Dist. 2006); State v. Lopez, 306 S.C. 362, 367, 412 S.E.2d 390 (1991); State v. Leibhart, 266 Neb. 133, 144, 662 N.W.2d 618 (2003).
Based upon the foregoing, the court concludes that Bernstein did not render deficient performance by failing to preserve issues for appellate review. The petitioner also has not shown that any of the claims Bernstein should have preserved would have resulted in a favorable ruling by an appellate tribunal. Consequently, the petitioner has neither shown deficient performance nor that she was somehow prejudiced.
Failure to Object to Admission of Evidence Without Sufficient Foundation
The petitioner's final claim of deficient performance by Bernstein is that she failed to object to the admission of evidence for which the prosecution failed to offer a sufficient foundation. This claim essentially is a restatement of the previously addressed claim that Bernstein rendered ineffective assistance of counsel by failing to challenge the state's failure to formally offer both attending physicians and doctors from the medical examiner's office as expert witnesses, as well as failing to request to voir dire any of these expert witnesses when they were offered as such.
For the reasons already stated previously, even if this court assumes these alleged deficiencies were proven at the habeas corpus trial, which they were not, the petitioner also has not shown that she was prejudiced by any of these alleged deficiencies. The petitioner therefore has failed to undermine this court's confidence in the outcome of the criminal trial.
CONCLUSION
The petition for a writ of habeas corpus is denied. Counsel for the petitioner shall prepare and submit a judgment file to the Clerk's Office within thirty days of the date of this decision.