"The science at the center of the debate over whether René Bailey could have shaken a toddler so viciously that the child later died has already been argued and found unreliable, an attorney for Bailey argued Tuesday. If the Monroe County District Attorney's Office wants to retry Bailey, as it is seeking to do, prosecutors should go to a grand jury and show sufficient proof for a new indictment instead of relying on the murder indictment from 2001, contended the attorney, Adele Bernhard. The arguments over the case of Bailey, whose 2001 second-degree murder conviction was reversed in 2014, are being closely watched because of the case's significance in New York and beyond. In 2001, a jury convicted Bailey, siding with the scientific testimony from experts who maintained that violent shaking was the only probable cause of the death of a 2½-year-old girl in Bailey's care. In recent years the scientific foundation of what is commonly called "shaken-baby syndrome" has come under assault, with new research maintaining that there could be other causes, including falls, that prompted the specific injuries once largely attributed to the syndrome diagnosis. Shaken-baby syndrome "has been proven to be a misinterpretation, an incorrect interpretation of the science," Bernhard, a New York Law School professor representing Bailey, said Tuesday. After a three-week hearing in 2014 that largely focused on the scientific debate, then County Court Judge James Piampiano tossed out Bailey's conviction. He ruled that had the 2001 jury been able to hear the new scientific evidence, it likely would have acquitted Bailey, who was a day care provider in 2001. That ruling was significant in New York, but what added to the legal importance of the case was the decision by a regional appellate court that Piampiano, now a state Supreme Court justice, was correct in his decision. In its unanimous decision, a four-judge panel of the Fourth Department Appellate Division of state Supreme Court said that Piampiano had ruled properly. "Had this evidence been presented at trial, the verdict would probably have been different," the panel wrote. That marked the first appellate decision in New York that challenged the validity of shaken-baby syndrome. The District Attorney's Office is now seeking to retry Bailey on the murder charge, and wants to use the original indictment against her to proceed. Typically, when a conviction is reversed, the original indictment remains in place, and prosecutors can choose to retry the accused or have the indictment dismissed. But the very core of the 2001 indictment has been shredded with the new scientific questions, Bernhard said Tuesday. The DA's Office can return to a grand jury if it wants to try to again indict Bailey, she said, but the evidence presented for indictment 16 years ago has now been proved to be lacking...State Supreme Court Justice Judith Sinclair is presiding over the case, and said she would render a decision on May 23 whether to dismiss the 2001 indictment against Bailey. If the indictment stands, Bailey is scheduled to be tried again on Sept. 5."
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