Democrat and Chronicle


Judge orders special hearing in shaken baby case
January 24, 2014

by Steve Orr, Staff Writer

A lawyer for Reneé Bailey of Greece, NY, near Rochester, imprisoned 13 years ago in a “shaken-baby” murder case, can present evidence at a special hearing on changes in the science used to convict the Greece woman, a judge ruled Friday.

The hearing, ordered by state Supreme Court Justice James Piampiano, will be one of the first post-conviction hearings in a New York courtroom on shifting scientific views of shaken-baby syndrome, the popular term used to describe brain damage suffered by an infant or toddler who is violently shaken by an adult.

The changing science was the subject of a Democrat and Chronicle watchdog report in June of last year.

Bailey, now 54, was convicted by a jury of second-degree murder in the death of a 2½-year-old girl who Bailey was watching in her home day care center.

Bailey told police Brittney Sheets had fallen from a chair and hit her head on the floor. Two little boys also in the day care that day later said the same thing, though both were judged too young to testify.

Prosecutors argued that a fall couldn’t have caused the girl’s head injuries and that the injuries were due to abuse at the hands of an adult.

Bailey was convicted and sentenced to 25 years to life in prison, though an appellate court later reduced her minimum sentence to 15 years.

At the time of her conviction, nearly all physicians and other experts believed that symptoms such as those displayed by Brittney Sheets could be caused by violent shaking, and conversely that nothing other than shaking or throwing a child could cause them.

But some experts now argue that those conclusions were based on shaky science. They say new research shows falls or illnesses can cause some of the symptoms traditionally ascribed to shaking. Some experts also say shaking may not cause severe head injuries at all in some cases.

As those beliefs began to taken root, lawyers responded by filing numerous post-conviction legal challenges. A few challenges in other states have led to reversal of convictions, though none has succeeded in New York state. There have been wholesale re-examinations of shaken-baby convictions in England and the Canadian province of Ontario.

Bailey’s pro bono lawyer, Adele Bernhard, took up the imprisoned woman’s cause several years ago, and filed an appeal last year stating that the changing scientific views constituted “newly discovered evidence.” Had this evidence been presented at trial 13 years ago, Bernhard argued in written pleadings and in an appearance before Piampiano in November, Bailey would have been acquitted.

The availability of new evidence — testimony from an overlooked witness, say, or DNA suggesting someone else was responsible for a crime — is one basis for reserval of a criminal conviction in New York.

The Monroe County District Attorney’s Office opposed Bernhard’s appeal and dismissed the notion that scientific thinking about shaken-baby syndrome has changed.

In his six-page written decision Friday, Piampiano denied a motion by Bernhard to vacate Bailey’s conviction.

But he did find that her arguments were substantive enough to justify a full-blown hearing with expert testimony on the question of whether the changing scientific thought constitutes new evidence in Bailey’s case.

Piampiano also agreed to hear arguments on one of the case’s more intriguing sidelights — a report that one of the boys who witnessed Sheets’ injury later repeatedly re-enacted the incident, mouthing “jump Brittney” and simulating the girl tumbling from the chair.

Bernhard has argued that testimony from the woman who witnessed the boy’s re-enactment also would constitute new evidence.

“I'm very pleased that Judge Piampiano decided the scientific issues were worth exploring,” said Bernhard, an adjunct professor and director of the Post-Conviction Innocence Clinic at New York Law School in Manhattan.

First Assistant District Attorney Kelly Wolford said Piampiano clearly wants to ensure he has all of the information at hand before deciding Bailey’s appeal.

Prosecutors will continue to argue that the “new” evidence was in fact available or presented at Bailey’s trial, Wolford said.

“That’s been our claim all along, that this doesn’t constitute newly discovered evidence in any shape or form,” she said.

The hearing will be held in March, Piampiano said.

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