Prosecution withheld vital evidence from defense in Irish nanny trial

It has been revealed that Middlesex County prosecutors were not forthcoming with evidence that brought into question the guilt of Aisling Brady McCarthy, the Irish nanny in Boston who was accused of murdering a child in her care.

In 2013 McCarthy was charged with the murder of one-year-old Rehma Sabir, the baby she had been looking after for almost six months, when prosecution medical expert Alice Newton concluded the young girl died from injuries, including severe bleeding in the back of the eyes, that indicated abusive head trauma, more commonly known as shaken baby syndrome.

As the Boston Globe reported, it has now come to light that prosecutors spoke to eye specialist Dr. Alex Levin shortly after McCarthy was jailed without bail and he could not confirm the injuries sustained by Sabir were indicative of abusive head trauma. Instead, he indicated that they may have been caused by an immune disorder called Job Syndrome.

As district attorneys, the prosecution are expected to bring any such information or evidence to the attention of the defense. However, the prosecutors in this case failed to share this information for over a year while McCarthy was in jail. The transcripts of their conversations with Levin were eventually provided to the defense in January 2015, 16 months after their first phone call with the specialist, when Judge Maureen Horan ordered them to do so.

“Their job is not just to win,” said David Rossman, a professor of law at Boston University who was briefly a prosecutor in Middlesex County. “Their job is to do justice, and that means even if they are morally certain a person did it, and there is a piece of evidence in their hands that in the eyes of a reasonable, objective person would make it seem less certain the defendant is guilty, they’ve got to turn it over.”

Excellent piece on the overzealous district attorney's office that prosecuted Aisling Brady McCarthy. http://t.co/lXg90tbmwg

— Larry Donnelly (@LarryPDonnelly) October 18, 2015

#TheBostonNanny Thankfully medical science exonerated Aisling Brady McCarthy. Her life is changed forever because of the ordeal.
— Pádraig McCann (@Padraig_McCann) September 14, 2015

What makes the latest revelation even more controversial is the fact that the same district attorneys were at the time working on the murder case of another baby, Nathan Wilson, believed to have died from abusive head trauma at the hands of his father Geoffrey in 2010. In this case, the medical examiner has recently claimed he was bullied by the district attorneys to stick with the original homicide ruling despite his hesitation about its accuracy.

In the medical examiner’s case notes, obtained by the Boston Globe, forensic pathologist Peter Cummings writes that Middlesex District Attorney Marian Ryan and her staff did not wish him to reverse his homicide ruling to “could not be determined” despite experts for the defense council finding a rare genetic defect that made members of the Wilson family prone to ruptures of veins and arteries that could have cause the baby’s injuries.

“I told them I felt bullied and at times as though I was being forced to sign the case out in a way I did not think was honest,” Cummings wrote.

DA Ryan, however, has denied the claims, stating that as the only party speaking for the child in the case (both parents attested that Geoffrey Wilson had not harmed his son) the onus was on her and her team to ensure the charges against the father were fully investigated.

“Did we ask for second opinions?” she said. “Yes we did, we absolutely did. Nobody does anything medical without a second opinion. And in the end we did agree with his [Cummings’] conclusion, and we were bound by that.”

Despite Cummings’ notes suggesting that Ryan and her office went beyond this kind of care and looked to deny new evidence instead of ensuring a fair trial, he successfully managed to amend the cause of death in August 2014, but Ryan still contests her prosecution team did not overstep their boundaries.

The case has striking similarities with McCarthy’s. Both cases were dropped following a review from the medical examiner that reversed findings and allegations of foul-play on the part of the prosecution.

Rehma Sabir was found unconscious in her crib and rushed to the hospital with head injuries on January 14, 2013. She died two days later on her first birthday and McCarthy was charged with her murder.

The original medical report found that Rehma died from blunt-force head injuries, but also that the child had pre-existing bone fractures. McCarthy always claimed that Rehma died from injuries sustained on a family holiday while not in her care and proclaimed her innocence. Expert witnesses for the defense also noted that Rehma was often sick and had suffered bone fractures in her spine weeks before her death while traveling with her mother and not in the nanny’s care.

When a review of all the medical evidence was launched in April 2015, McCarthy’s attorney Melinda Thompson declared that she would not be confident the review was completely independent unless the Middlesex DA did not contact the medical examiner, a request which the judge granted.

It is part of the procedure that district attorneys and medical examiners will work together on a case such as this as the examiners use the information compiled by the prosecution team to inform their final decision. In this case, however, Thompson felt the DA were going too far to decide that decision instead of informing.

“I felt the interactions [so far] were inappropriate,” Thompson told the Boston Globe, referring to emails which showed that the entire prosecution team was heavily involved with the medical examiner as evidence that they had too much say.

“We believed the review, on behalf of Aisling, the child’s family, and the Commonwealth, should be independent, without interference from the Middlesex District Attorney’s office.”

In late August 2015, the state medical examiner ruled that the death of Rehma Sabir was not a homicide when the defense team produced reports from nine outside specialists attesting to the fact and the charges against McCarthy were dropped.

It is believed, however, that having the information from eye specialist Levin earlier would have greatly sped up this process.

Cleared Irish nanny deported from US Irishwoman Aisling Brady McCarthy, who spent over two years in jail in the US before a murder charge
— Diana Glen (@mezenovad) October 19, 2015

Shaken baby syndrome: Release of Aisling Brady McCarthy called "a decision that will matter," by Blogger Sue L... http://t.co/Lgtkj4lTvb
— Harold Levy (@hlevy15) September 15, 2015

“Their [The prosecution’s] own expert was questioning the diagnosis of abuse,” said attorney Melinda Thompson of the withheld evidence.

“Had the medical examiner been aware of this, her analysis could have been different early on.”

Ryan has accepted that the conversations with Levin should have been made available sooner.

“We take our responsibility to produce all exculpatory evidence very seriously,” she wrote.

“While there were several extenuating circumstances which delayed the production of Dr. Levin’s final written report, we acknowledge and agree that the information should have been provided to the defendant sooner.”

McCarthy, who had been living in the US illegally, was immediately deported back to Ireland on her release.