At the hearing, Gabriel said when he testified at trial his opinions were based solely on the medical records. After reviewing police reports — which he said Foltz never provided — he said his opinions regarding the baby’s death have completely changed. The reports, Gabriel testified, contain a statement from Jude’s grandmother describing the baby’s asymmetrical pupils three days before he was admitted to hospital, according to court documents. Gabriel called the statement a “golden diagnostic signal” to a neurologist, and he now believes Jude had a progressive case of hydrocephalus — buildup of fluid within the brain. It’s the doctor’s opinion enough fluid accumulated that vessels ruptured, either due to jarring the baby’s head in any manner, or simply because of the stress of fluid on the vessels, according to the filings. “Dr. Gabriel indicated it is important to obtain and review the police reports,” the filings say of his testimony at the evidentiary hearing. “In this case, there was information that would have been critical to his analysis. However, attorney Foltz never provided him with the police reports.”
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The judge vacated assault and child cruelty convictions that sent Nicholas Newbold to prison for 25 years to life, and has scheduled a hearing to set a date for retrial, according to court filings.
In his Dec. 20 ruling, Judge Michael E. Dellostritto wrote defense lawyer Brian Foltz provided ineffective counsel by failing to follow the suggestions of a doctor who testified for the defense and recommended further testing and consultations be performed for a complete evaluation into the baby’s cause of death.
If Foltz had done so, the judge wrote, it’s possible the jury would have returned a different verdict.
“Based on the circumstances of the case, the Court finds that a reasonable attorney would have investigated further by, if nothing else, complying with his expert’s requests for additional testing and consultation with other experts on the results,” Dellostritto said.
Newbold, 30, and girlfriend Juliana Linn were charged in the Sept. 11, 2012, death of their 2-month-old son, Jude, who died after suffering broken ribs and bleeding on the brain, according to reports.
Prosecutors argued the child’s death resulted from shaken-baby syndrome. Linn pleaded no contest to willful cruelty to a child and received a six-year prison term.
Newbold went to trial in 2016, where Foltz conceded the baby died from abuse but argued his client didn’t inflict the injuries.
Dr. Ronald Gabriel, a child neurologist who was the defense’s only witness, testified Jude was born underweight and had an abnormality in the brain, according to court filings, and said “there’s no question” the child’s injuries were caused by physical abuse.
After his conviction, Newbold filed for a new hearing on the grounds of ineffective assistance of counsel. Dellostritto granted it and an evidentiary hearing was conducted last year.
Its primary purpose was to determine the following: did Foltz provide Gabriel with necessary portions of the file for him to give a “confident and informed” opinion on Jude’s death, and did the doctor advise for more experts and testing to render a valid opinion?
At the hearing, Gabriel said when he testified at trial his opinions were based solely on the medical records. After reviewing police reports — which he said Foltz never provided — he said his opinions regarding the baby’s death have completely changed.
The reports, Gabriel testified, contain a statement from Jude’s grandmother describing the baby’s asymmetrical pupils three days before he was admitted to hospital, according to court documents.
Gabriel called the statement a “golden diagnostic signal” to a neurologist, and he now believes Jude had a progressive case of hydrocephalus — buildup of fluid within the brain.
It’s the doctor’s opinion enough fluid accumulated that vessels ruptured, either due to jarring the baby’s head in any manner, or simply because of the stress of fluid on the vessels, according to the filings.
“Dr. Gabriel indicated it is important to obtain and review the police reports,” the filings say of his testimony at the evidentiary hearing. “In this case, there was information that would have been critical to his analysis. However, attorney Foltz never provided him with the police reports.”
Gabriel wasn’t made aware of the reports — in which he learned of Jude’s pupil asymmetry and that the baby’s mother was involved in a car accident in her third trimester — until an appellate attorney brought them to his attention, the documents say.
The car accident, the filings say, possibly explain the baby’s growth retardation and why his brain was abnormal.
Foltz spent eight years at the Kern County Public Defender’s Office. He now works at the San Bernardino County Public Defender’s Office.
Newbold’s case was his fifth murder trial, and his first involving an allegation that death occurred from shaken-baby syndrome, the filings say.
At the evidentiary hearing, Foltz testified he believed he gave Gabriel the police reports, but couldn’t remember the specific records provided to the doctor, according to the documents. A review of his notes found no mention of discussing the reports with Gabriel.
Foltz testified he did not assign an investigator to the case and conducted no outside investigation, he was unaware of the car accident and the the mention of Jude’s pupil asymmetry held no significance for him, the filings say.
The attorney said he relied on Gabriel’s opinion Jude died of blunt force trauma, but acknowledged Gabriel said his opinion was based on “incomplete medical analysis,” according to the documents.
Foltz acknowledged Gabriel asked for other reports and for others to review them.
Nevertheless, the attorney “admittedly suffered from tunnel vision, and did not further investigate the case by following the recommendations of his one and only expert,” the judge wrote.
“There can be no doubt that an attorney adhering to the objective standards of reasonableness in light of the professional norms prevailing at the time of the trial would have presented all this undiscovered evidence at the trial,” Dellostritto wrote, “and most importantly, there is a reasonable probability the jury would have returned a different verdict.”
A status conference is set for Jan. 20.
The story can be read at:
https://www.kget.com/news/crime-watch/convictions-vacated-in-rosamond-babys-death-court-finds-defendant-received-ineffective-counsel/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;
