Court orders new trial for man convicted of shaking his baby

The Supreme Judicial Court today ordered a new trial for Oswalt Millien of Woburn, saying his original lawyer screwed up by not finding a medical witness to counter prosecution claims that the only way his six-month-old daughter got serious brain injuries in 2009 was by him shaking her violently.

Millien was convicted and sentenced to four to five years in prison.

It's not that Millien's lawyer didn't know of experts who could back up Millien's argument that the infant hit her head on the floor when she fell off a couch, but that Millien's father, who was paying him, couldn't afford the cost of hiring one.

Big mistake, the court said: For such a critical point in the defense, the lawyer should have asked the court for funds to pay an expert to testify.

There is a heated debate in the medical community as to whether a violent shaking of a baby alone can generate enough force to cause the triad of symptoms of traumatic brain injury, and as to whether these symptoms can sometimes be caused by a short accidental fall. At trial, the jury heard only one side of this debate, because the defense attorney did not retain a medical expert to offer opinion testimony or to assist him in cross-examining the Commonwealth's medical experts. We conclude that, in these circumstances, where the prosecution's case rested almost entirely on medical expert testimony, the defendant was denied his constitutional right to the effective assistance of counsel because, by not providing the jury with the other side of this debate, his attorney's poor performance "likely deprived the defendant of an otherwise available, substantial ground of defence."