QUOTE OF THE DAY: "Fishman said in his 16 years on the bench, he had never reduced a verdict in any criminal case. “There is no doubt that the jury . . . was a serious and attentive group,” he wrote. ‘Nevertheless . . . this court is acutely aware of its responsibility to exercise the judgment to reduce the verdict in those rare instances when the verdict rendered is not consonant with justice.”
PASSAGE ONE OF THE DAY: "At trial, prosecutors said Macharla, who was a medical doctor in her native India, became frustrated when the baby began fussing and shook her so violently her brain bled. Macharla, who testified in her own defense, said the baby had vomited shortly after she fed her homemade applesauce and then stopped breathing. Fishman’s decision is the latest in a series of setbacks for state prosecutors who have had convictions in shaken baby cases overturned by higher courts or had to drop murder charges after medical examiners reversed their rulings on the cause of a baby’s death. The ruling means Macharla, who was sentenced to life in prison with the possibility of parole after 15 years, will likely serve no more than five years. Involuntary manslaughter carries no minimum mandatory sentence and a maximum sentence of 20 years, but the state’s sentencing guidelines call for no more than five years in prison."
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PASSAGE TWO OF THE DAY: "Fishman denied a defense motion to overturn the conviction and acquit Macharla. Fishman agreed there was no evidence that Macharla intended to hurt the child, noting that she gave the baby mouth-to-mouth resuscitation when she stopped breathing. “It appears that the defendant had no history of abusive behavior toward children in the past but rather was a patient, considerate, and loving caretaker of children,” he wrote. “There is, however, a child who has tragically died, coupled with evidence of extraordinary internal injuries that some experts would attribute to abusive head trauma in the form of a shaking and/or a blow.” Fishman’s decision followed competing motions from prosecutors and the defense over the verdict. The defense said the verdict should be overturned in part because medical experts agreed the bleeding in the child’s brain was due to a prolonged period without oxygen. The defense also cited the testimony of biomechanical engineers, who disputed that a person has the strength to shake an infant with enough force to cause bleeding inside the brain and retinal hemorrhaging. Doctors for prosecutors were dismissive of this science, Carney argued. “Their responses ranged from disdain to . . . admitting their ignorance on the topic,” Carney wrote in his motion. Prosecutors countered that defense experts “cherry-picked which findings to consider in reaching their opinions, testified beyond their area of specialty . . . and created histories to fit their theory.” By contrast, the doctors who testified for them were currently practicing in the field of pediatric care, they said.
PASSAGE THREE OF THE DAY: "Fishman’s decision had striking similarities to a 1997 ruling by the judge in the case of Louise Woodward, the British nanny who was accused of shaking 8-month-old Matthew Eappen to death. After a jury convicted Woodward, then 18, of second-degree murder, the judge reduced the conviction to involuntary manslaughter and sentenced the au pair to time served — 297 days. That judge also argued that an involuntary manslaughter conviction was more “consonant with justice.” The SJC narrowly upheld the decision in the Woodward case and she returned to England a free woman. She has since married and had a child."
GIST: "A Middlesex Superior Court judge has
reduced the second-degree murder conviction of a baby sitter found
guilty of fatally injuring a 6-month-old baby to involuntary
manslaughter, an unusual decision that underscores how the science
around shaken baby cases continues to divide the criminal justice
system. Judge Kenneth Fishman said that the second-degree murder conviction a jury delivered in May against Pallavi Macharla, a 44-year-old mother of two, was not “consonant with justice.” The four-week trial featured a slew of
medical experts who presented strikingly different theories about what
killed Ridhima Dhekane, whom Macharla was baby-sitting in March 2014 in
the day-care center she ran in her Burlington home.
The conflicting findings made it impossible to justify a second-degree murder conviction, Fishman wrote in the Aug. 19 decision. “This court cannot permit a
verdict of second-degree murder to stand in the presence of such highly
contested and inconsistent evidence,” Fishman wrote in the 17-page
ruling. At trial, prosecutors said Macharla, who was a medical
doctor in her native India, became frustrated when the baby began
fussing and shook her so violently her brain bled. Macharla, who testified in her own defense, said the baby had vomited shortly after she fed her homemade applesauce and then stopped breathing. Fishman’s decision is the latest in a
series of setbacks for state prosecutors who have had convictions in
shaken baby cases overturned by higher courts or had to drop murder
charges after medical examiners reversed their rulings on the cause of a
baby’s death. The ruling means Macharla, who was
sentenced to life in prison with the possibility of parole after 15
years, will likely serve no more than five years. Involuntary
manslaughter carries no minimum mandatory sentence and a maximum
sentence of 20 years, but the state’s sentencing guidelines call for no
more than five years in prison.
A new sentencing date has been scheduled for Sept. 27. Prosecutors can appeal Fishman’s decision to reduce the conviction. Meghan Kelly, a spokeswoman for Middlesex District Attorney Marian Ryan, declined to comment on the decision. “We are still reviewing the decision,” Kelly said. J.W. Carney Jr., Macharla’s defense lawyer, said he spoke with Macharla’s husband, who said he and his wife were “very grateful” for the ruling. “A great judge reflects many qualities, including the courage to prevent an injustice,” Carney said. “Justice Fishman exemplified that courage in concluding that justice did not support a verdict of second-degree murder.” Fishman denied a defense motion to overturn the conviction and acquit Macharla. Fishman agreed there was no evidence that Macharla intended to hurt the child, noting that she gave the baby mouth-to-mouth resuscitation when she stopped breathing. “It appears that the defendant had no history of abusive behavior toward children in the past but rather was a patient, considerate, and loving caretaker of children,” he wrote. “There is, however, a child who has tragically died, coupled with evidence of extraordinary internal injuries that some experts would attribute to abusive head trauma in the form of a shaking and/or a blow.” Fishman’s decision followed competing motions from prosecutors and the defense over the verdict. The defense said the verdict should be overturned in part because medical experts agreed the bleeding in the child’s brain was due to a prolonged period without oxygen. The defense also cited the testimony of biomechanical engineers, who disputed that a person has the strength to shake an infant with enough force to cause bleeding inside the brain and retinal hemorrhaging.
Doctors for prosecutors were dismissive of this science, Carney argued. “Their responses ranged from disdain to . . . admitting their ignorance on the topic,” Carney wrote in his motion. Prosecutors countered that defense
experts “cherry-picked which findings to consider in reaching their
opinions, testified beyond their area of specialty . . . and created
histories to fit their theory.” By contrast, the doctors who testified
for them were currently practicing in the field of pediatric care, they
said. “Through clinical examination, imaging
and pathology examination, they determined that Ridhima was a victim of
inflicted head trauma that caused her to go into respiratory arrest and
then, consequently, cardiac arrest,” wrote Katharine B. Folger, the
assistant district attorney who prosecuted the case. If prosecutors appeal the case, it will
go before the state Appeals Court and possibly the Supreme Judicial
Court. The defense could also appeal the ruling and argue for a full
acquittal. Carney said on Monday that it is “premature” to consider that
option. Fishman’s decision had striking similarities to a 1997 ruling by the judge in the case of Louise Woodward,
the British nanny who was accused of shaking 8-month-old Matthew Eappen
to death. After a jury convicted Woodward, then 18, of second-degree
murder, the judge reduced the conviction to involuntary manslaughter and
sentenced the au pair to time served — 297 days. That judge also argued
that an involuntary manslaughter conviction was more “consonant with
justice.”
The SJC narrowly upheld the decision in the Woodward case and she returned to England a free woman. She has since married and had a child. Fishman said in his 16 years on the bench, he had never reduced a verdict in any criminal case. “There is no doubt that the jury . . .
was a serious and attentive group,” he wrote. ‘Nevertheless . . . this
court is acutely aware of its responsibility to exercise the judgment to
reduce the verdict in those rare instances when the verdict rendered is
not consonant with justice.”
The entire story can be read at:
https://www.bostonglobe.com/metro/2019/08/26/judge-reduces-baby-sitter-second-degree-murder-conviction-involuntary-manslaughter/qDpPN1mEkodGaOCFQkGQGM/story.html?et_rid=251574599&s_campaign=todaysheadlines:newsletter
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
