UPDATE: Curtis Wayne Wright was booked into a Lee County, FL jail early this morning. He waived extradition from Missouri. He’s accused of murdering Dr. Theresa Sievers in late June 2015. Wright and the husband of Dr. Sievers are close friends. Mark Sievers has not been charged—yet.

Arias Motion to Disqualify Court of Appeals is Denied

Last night I received an email from the Arizona Attorney General’s spokesperson informing me that the Court of Appeals had just denied Arias’s Motion to Disqualify the Court of Appeals from hearing her appeal of the murder conviction. One of the 16 judges in the Court of Appeals—Division One had written an article, published on August 20, 2015 in the National Judicial College monthly newsletter, about the cost of seeking the death penalty. In it, Judge Kent Cattani wrote that Arias is guilty. That line was the basis for Arias’s motion to disqualify the entire Division One of the Court of Appeals. Arias had filed her motion, the Attorney General filed a response last week. The court was awaiting Arias’s reply to the response when they suddenly issued yesterday’s order.

While Arias lost her motion, she did succeed in drawing attention to Judge Cattani’s article which resulted in Cattani recusing himself from hearing any of Arias’s appeals. Though I don’t have confirmation of this, I suspect that Cattani’s decision to recuse himself happened yesterday (or very recently) which, in turn, caused the court to deny the motion without needing a reply from Arias.

Argument Today in New York’s Highest Court on Shaken Baby Syndrome

On September 18, 2015, I recorded a podcast with New York criminal appellate attorney Mark Baker about his challenge to the science behind Shaken Baby Syndrome. He firmly believes that his client was wrongly convicted of an assault on an infant. To listen again to the interview, click on the podcast below.

 

Today, Mark is arguing his case before New York State’s highest court. To watch the argument live at 1:00 p.m. ET, please go to the New York Court of Appeals website at this link. It should last about one hour. There is a link on the homepage to the webcast. That link should bring up to the live argument. The argument will also be archived and available on the court’s website within a few days.

https://www.nycourts.gov/ctapps/

The Court of Appeals posts a description of every argument to be heard. Following is the Court’s summary of Mark Baker’s case:

To be argued Thursday, October 15, 2015 (arguments start at 1 p.m.)
No. 162 People v Alma Caldavado

Alma Caldavado was charged with first-degree assault and endangering the welfare of a child for allegedly shaking and injuring a seven-month-old girl she was babysitting at her home in Queens in 2006. Physicians testifying for the prosecution said the child suffered subdural hematomas (bleeding between the brain and skull), multiple brain contusions, and extensive retinal hemorrhages in both eyes, which they attributed to “shaken baby syndrome.” Caldavado’s attorney cross-examined the medical experts, using information he obtained from a pediatric neurologist that the child’s records indicated pre-existing hematomas that could have caused seizures and caused new bleeding without significant shaking; but he did not present expert testimony to rebut the prosecution experts. He presented character witnesses and Caldavado’s own testimony. She was convicted on both counts and sentenced to eight years in prison.

After her conviction was affirmed, Caldavado brought this CPL 440.10 proceeding to vacate her conviction based on newly discovered evidence from two pediatric neurological experts, who opined that the child suffered from “benign enlargement of the subarachnoid spaces” (BESS), a condition that could make the child susceptible to subdural hematoma with minimal trauma. She also argued that her trial attorney was ineffective in not presenting any expert testimony, and she asserted her actual innocence.

Supreme Court denied her motion without a hearing, saying the articles authored by the new experts “were written between 2004 and 2008” and, therefore, the experts’ articles and opinions “would have been available to the defense at the time of the trial, and do not constitute newly discovered evidence.” It said her trial attorney had a “strategy to attack the prosecution’s medical evidence … and to suggest through character evidence and testimony by defendant that defendant would not and did not shake the baby under circumstances evincing a depraved indifference to human life. This strategy was not successful, but it does not rise to the level of constitutional ineffective assistance of counsel.”

The Appellate Division, Second Department affirmed, saying, “Defendant failed to demonstrate the absence of a strategic explanation for trial counsel’s decision not to present certain expert testimony and instead to cross-examine the People’s witnesses based on the opinion of a medical expert he received prior to trial, and also to focus on the mens rea element of assault in the first degree….” It said her claim “based on newly discovered evidence was properly denied, since the evidence defendant offered was not newly discovered within the meaning of CPL 440.10(1)(g)….”

Caldavado argues that where “newly discovered expert medical evidence … forms the basis of a motion to vacate judgment … and where such information could easily have been presented at trial but for counsel’s indolence or ineptitude, it seems unfair, and certainly not constitutionally appropriate, to hold an apparently innocent person to a strict standard of due diligence.” She also argues that, “where the prosecution … relied solely on the classic triad symptoms of retinal hemorrhaging, cerebral edema and subdural hematoma” to establish shaken baby syndrome, “it amounted to ineffective assistance of counsel, per se…, for defense counsel not to have offered affirmative evidence … that, at least since 1998,” a growing body of medical opinion had “discredited the theory that the triad symptoms, without more,”could prove an infant was shaken.

For appellant Caldavado: Mark M. Baker, Manhattan
For respondent: Queens Assistant District Attorney John M. Castellano

Woman Loses Her Lawsuit Against 8-year-old Nephew Who Hugged Her Too Aggressively

A New York woman sued her now 12-year-old nephew for hugging her so exuberantly four years ago that she fell and broke her wrists. Two days ago, a Connecticut jury rejected her case.

The story is summarized in this article and the jury’s decision is described here.