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New trial ordered for man convicted of shaking toddler hard enough to cause brain damage

For the second time in two months, the Supreme Judicial Court has ordered a new trial for a man convicted of shaking a young child hard enough to cause brain damage, saying his lawyer should have tried to find a scientific witness to rebut the charges.

The state's highest court ruled the science behind shaken-baby syndrome is now so unsettled that justice demands Derrick Epps of Haverhill be given a second chance to make his case that his girlfriend's two-year-old suffered permanent brain injuries in 2004 not because he violently shook her but because she fell down some stairs and then fell off a kitchen stool.

In 2010, Epps was sentenced to 7 to 10 years in state prison.

The court's decision hinged on the question of whether Epps' lawyer erred in not calling any scientific witnesses to rebut prosecution claims after deciding not to try to defend his client by trying to show the girlfriend actually shook the toddler:

Having informed the judge at the beginning of trial that he did not plan to pursue a third-party culprit defense, defense counsel's failure to consult with any expert other than Dr. Sussman effectively meant that the defendant commenced trial without any substantial defense, even though further investigation would have supported a potentially substantial defense of accident.

Last month, the court used similar reasoning to order a new trial for a Woburn man convicted on similar charges for a 2009 incident involving his six-month-old daughter.

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