Pardalis & Nohavicka Criminal Law Update: New York Law School's Post-Conviction Innocence Clinic Gets New Trial for Daycare Business Operator Convicted in 2001

On the morning of June 6, 2001, two and a half year old Brittney was left in the care of the Rene, who operated a daycare business at her home. Brittney did not exhibit any signs of injury prior to being dropped off at approximately 8:30 a.m. that day. At approximately 3:15 p.m., Brittney’s father  received a telephone call from Rene, who said that Brittney had fallen off of a bench and bumped her head. The father responded, and found Brittney to be unresponsive. Brittney’s parents took her to the pediatrician who called for an ambulance, and Brittney was taken to Strong Memorial Hospital. Although she received treatment in the pediatric intensive care unit, Brittney was pronounced dead the following day. Brittany’s pediatrician testified at trial that the child was the victim of Shaken Baby Syndrome because there was no way that a short fall like the one described would have been fatal. Rene was convicted and sentenced.

In April of 2014, New York Law School’s  Post-Conviction Innocence  Clinic litigated a CPL § 440.10 post conviction hearing. A three-week hearing exposed the falsity of the existing perception at the time of Trial, that short falls or low velocity impacts could not cause death. The Innocence Clinic’s attorneys introduced a video which showed a low velocity impact that resulted in death. The child in that videotaped fall was 23 months old; she was about the same height, but “a little heavier” than Brittney. In that footage, the 23 month old girl and her older brother were playing on a plastic gym-type house in the garage of their parents’ home. As the girl was straddling one of the rails, holding on with her hand, she lost her grip and fell sideways. The girl’s head was about three and a half feet above the ground when she went into a free fall and struck the ground (carpet over a concrete garage floor). The girl first struck with her outstretched hands, and then with the right side of her forehead. She initially was conscious, but five or ten minutes later she had a seizure and was brought into a local hospital. The girl developed a large volume subdural hematoma, which was surgically evacuated, but she subsequently developed malignant cerebral edema and died. Conviction vacated; new trial ordered.

People v Bailey: http://www.courts.state.ny.us/reporter/3dseries/2014/2014_24418.htm

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