Th STATE OF WISCONSIN CIRCUIT COURT Branch 3; STATE OF WISCONSIN, DECISION. Plaintiff Post-Conviction Relief v, QUENTIN J. LOUIS, Case #05-CF-193 Defendant 2 Four month old Madelyn Louis (Madelyn) suddenly stopped breathing on March 18, 2005 while in the care of her father, Quentin J, Louis (Louis). She died on March 21, 2005 of what ‘was diagnosed as shaken baby syndrome. Louis was charged, tried and convicted of First Degree Reckless Homicide in causing her death. His request for a new trial is the result of, and relies ‘upon, State v, Edmunds; 2008 WI App 33; 308 Wis.2d 374; 746 N.W.2d 590 in which the court found that a significant and legitimate debate had developed in the medical community over several aspects of shaken baby syndrome (SBS) since the original trial and on that basis granted a new trial, Here, Louis argues that he too is entitled to a new trial to hear testimony regarding this dispute regarding SBS and an alternate cause of death. He seeks that new trial claiming newly discovered evidence, the ineffective assistance of trial counsel and in the interests of justice Because trial counsel attempted to retain an expert on this alternate theory to use at the original trial, the defense cannot now argue that the evidence is newly discovered. Since Louis failed to present any evidence to overcome the strong presumption that trial counsel acted reasonably within professional norms. Hence, he is not entitled to a new trial for ineffective assistance of counsel. However, the recent change within the medical community that challenges the shaken baby syndrome goes directly to the major issue at trial of whether shaking Madelyn could have caused her death. He jury did not hear about the debate over SBS or a possible other cause of death based upon the autopsy. Instead, the State assertively and repetitively relied upon shaken baby syndrome to prove both that Louis must have shaken Madelyn and by that means caused her death, Therefore, this court must conclude that the real controversy was not fully and 4 fairly tried. Accordingly, the court grants the motion for a new trial in the interest of justice.‘State v. Quentin J. Louis Page? Decision; Motion for Post-Conviction Relief EVIDENTIARY BACKGROUND ‘Trial Evidence Louis was Madelyn’s father and was providing her care when she suddenly went limp and later died, At trial the State alleged that Louis had shaken Madelyn and thereby caused her death by shaken baby syndrome. A finding of SBS involves a triad of (1) subdural hemorrhage, (2) retinal hemorrhage and (3) brain injury. ‘The testimony at trial held that the subdural and retinal hemorrhaging could only be caused either by an impact to the head or by violently shaking the baby causing the infant’s head to shake back and forth. The shaking of the head the brain, which “flouts” inside the skull, is first thrown in one direction until it hits the skull and then in the other direction until it hits the other side of the skull. The shaking of the brain and resulting impacts the causes the rupture blood vessels in the brain and eyes causing hemorrhaging. The bleeding in the brain would cause increasing cranial pressure and injury to the brain. If the bleeding and pressure on the brain could not be stopped, the result would be death of the brain tissue. Under SBS, the brain injuries prove not only the cause of death but, since it does not allow much of a lucid interval, that the last person caring for the child must have shaken the child and hence the caused the child's death. In addition to the expert testimony, the State was also aided by the confession of Louis acknowledging that he had shaken Madelyn just before she went limp. At trial the defendant was denying that he had shaken the baby and the defense proceeded with the strategy of a “false confession” supported by an expert, Dr. Robert Gordon, in an attempt to show that police had extracted a false confession from a 23 year old man with an 8" grade education, In addition, trial counsel cross-examined the State’s experts under a differential diagnosis theory, exploring other possible causes of Madelyn’s death, All denied any other cause was possible other than shaking for the injuries. However Dr. Huntington, the forensic pathologist, acknowledged that a person may suffer a trauma without any outward signs of it for a sufficient portion of a day, i.e, a lucid interval, That made an opening for the defense to also argue that some projectile vomiting within the previous 24 hours might have led to the hemorrhaging and death.State v. Quentin J. Louis Page 3 Decision; Motion for Post-Conviction Relief __ ‘The jury convicted Louis of First Degree Reckless Homicide. Thereafter he was given a 30 year sentence divided between 20 years of initial confinement followed by 10 years of extended supervision. Post-conviction motions were pending when the Court of Appeals released its decision in Edmunds in January 2008. That resulted in a delay to permit an amendment of the motion, discovery concerning the alternate theories raised by that decision and the hearing Post-Convietion Evidence Atthe time of the post-conviction hearing the trial attorney, Attorney Peter Rotter, testified that prior to trial he had heard Dr. Ronald Gabriel speak at a National Organization of Public Defenders seminar about recent medical challenges to the shaken baby syndrome. In preparing for trial, he retained Dr. Gabriel and sent him the autopsy and other evidence to review. But after that review, Dr. Gabriel indicated that he would be unable to testify, to a reasonable medical probability, that Madelyn was not shaken or that shaking was a cause of her death. Attorney Rotter was also aware that another shaken baby case was recently tried in Marathon County in which such the challenge to SBS was unsuccessfully argued. He also felt that this testimony would ‘open the door to other possible instances of suspected abuse to either Madelyn or her brother Logan. That, coupled with his admitted lack of familiarity with the extent of the changing medical opinions, lead him to believe that a Marathon County jury might perceive such a challenge to be mere fringe theory of “smoke and mirrors” which would detract from. his false confession strategy. Therefore, he decided not to present Dr. Gabriel's testimony at trial. Louis also called Dr. Patrick David Barnes, a pediatric neuroradologist, to testify. He testified that he continued to believe in SBS up until 1998. Prior to that time, he had testified on behalf of the prosecution in such cases, including the “Boston Nanny” case. Dr. Barnes described an acute-subacute hemorrhage or thrombosis on the CT that was superimposed upon a pre-existing or chronic collection that would go back months and possibly all the way back to birth. He indicated that an MRI (magnetic imaging) rather than a CT scan (use of x-rays) would be a better tool in determining injuries to the soft water filled organs of the body including the brain However, even on the CT liquid blood would appear as dark patches that would gradually turnState v. Quentin J. Lovis Page 4 Decision; Motion for Post-Conviction Relief — lighter as the blood clotted and showed older collections of blood or thrombosis. On the CT scan it is difficult to determine the length of time over which these collections of clotting blood were present; that it could be a matter of hours up to 7-10 days of age. Dr. Barnes also testified that one factor overlooked by the old SBS triad was that to have such violent shaking, the forces applied would have to be transmitted through the neck. However, the force necessary to cause neck injury is less than that needed to cause brain damage. Here, there was no neck damage. According to him, SBS is now on the way out and to be replaced by a “shaken-impact” or an “acceleration-deceleration injury” models. Finally, he indicated that no medically trained person could, to a reasonable degree of medical certainty, determine whether Madelyn’s injuries where due to shaking, impact or other spontaneous causes and hence accidently or intentionally inflicted. The other medical expert called by Louis was Dr. John Plunkett, a pathologist board certified in anatomic, clinical and forensic pathology. He made three objective findings; (1) that Madelyn had a large chronic subdural hematoma, (2) that she showed no objective evidence of injury occurring on March 18" or within 3-4 weeks of her death, and (3) that she had no evidence of any neck damage. To him the mechanism of death, to a reasonable degree of medical certainty, was a superficial cortical vein thrombosis (clotting) superimposed on achronic subdural hematoma Which was the cause of her death, He explained that to have a chronic subdural hematoma, there would have to be a series of acute subdural hematomas that would then clot. Dr. Plunkett held that to have the appearance of Madelyn’s subdural hematoma on the CT scan, it would have to be 3-4 weeks old. In his opinion, there was a series of small acute episodes reaching back months and perhaps back to her birth with an incident on March 18* being the “last straw.” Indicative of this is the gradual but significant increase in Madelyn's head circumference and “bossing.” At the time of birth it was at the 25" percentile, at her last physical on March 14* it was at the 95" percentile and at autopsy it was at the 97" percentile, Dr. Plunkett acknowledged that theoretically and experimentally shaking can cause a subdural hematoma or damage to the tissue fibers of the brain. However, the reality is something different, He then proceeded to testify as to the significance that Madelyn did not have any