, Newburyport, MA

June 10, 2014

Judge: Did prosecutors go too far in baby-shaking case?


---- — DANVERS — Just weeks before a Danvers man is set to stand trial for what one judge has called “unconscionable violence” inflicted on his baby, another judge is asking whether prosecutors went too far in trying to build a case.

In a decision released Friday, Salem Superior Court Judge John Lu said Daniel Green’s lawyer “raises a valid issue” in arguing that the grand jury presentation may have been unfairly tainted by damaging evidence about other areas of Green’s life. His lawyer contends it was an effort to bolster what was otherwise a circumstantial case.

Green, 29, is accused of shaking his 3-month-old son so violently that the baby has abusive head trauma and is believed to have permanent cognitive impairments. Green is charged with assault and battery on a child with substantial bodily injury resulting,

The incident took place on Nov. 27, 2012, in a room at the Extended Stay America hotel on Route 1, where Green and his wife lived with the baby and his wife’s other children.

That night, the baby was lethargic, according to court papers, and the couple took him to Beverly Hospital.

While medical records have been impounded in the case, motions filed in the case and judge’s decisions show that the baby had been eating poorly and was having difficulty breathing.

The baby, who was born prematurely, was given a nebulizer treatment by his mother, but it did not seem to help. At first look, a Beverly Hospital doctor concluded that the baby appeared well but had some bronchial problems. She expressed concern that the baby had been to the emergency room four times in the prior two weeks and recommended that he be admitted.

While there, the baby began to go into medical distress and was transferred to Children’s Hospital. There, another doctor concluded that the baby had suffered head trauma and bruising due to abuse.

Green was the only person alone with the infant during the hours preceding his symptoms. After an investigation, the case was presented to a grand jury, which indicted Green in 2013.

At the time, the case was built around the testimony of a respiratory therapist who had dropped off a nebulizer to the couple’s hotel room on the afternoon before the baby was hospitalized, who said the baby appeared to be fine, followed by testimony about the symptoms the baby showed while with both parents.

A doctor from Children’s Hospital also testified that the baby’s injuries appeared to have occurred during a time when he was alone with Green.

But the grand jury also heard about, among other things, explicit text messages between Green and an ex-girlfriend and evidence of past violence by Green toward a former girlfriend.

Green’s attorney, Mark Schmidt, called the testimony a “smear” aimed at obscuring the lack of other evidence conclusively linking Green to the injuries.

Schmidt argued that the case should be dismissed because the grand jury had insufficient evidence for an indictment and because the presentation to the grand jury was misleading and unfair.

He suggested the baby could have been injured during dramatic efforts to resuscitate him, including pumping his chest and pounding on his back, sometimes with his head unsupported, while he was at Beverly Hospital.

Judge John Lu, in his ruling Friday, found that the grand jury did hear probable cause to establish that the injuries were caused by Green. But he suggested that the grand jury presentation by prosecutors “appears uncontrolled and wide-ranging.”

“The prosecution is ordered to file a memorandum as to whether this was an O’Dell violation or otherwise distorted the function of the grand jury,” Lu wrote.

The judge was referring to a 1984 Supreme Judicial Court decision in the case of James O’Dell, who was charged with taking part in a 1982 robbery of a Richdale store in Salem. The court held that the grand jury presentation was unfair because a police detective failed to testify that O’Dell, in his admission to driving the car used to get to the holdup, also told police he didn’t know his co-defendant was planning a robbery. That case set a legal precedent in Massachusetts.

Green has been held without bail as a danger to the public since a hearing last summer, where Judge Timothy Feeley concluded that he demonstrated “unconscionable violence” toward his child, “society’s most vulnerable member and one entrusted to the love and care of (his) parents.”

“There are some cases where the violence is so extreme, inexplicable and unwarranted that this court fears for the safety of the community at large,” Feeley wrote. “This is such a case.”

The trial is scheduled for July 21.