In this case, McDonald moved for the appointment of board-certified neurosurgeon Ronald Uscinski, who the defense expected to opine that shaken baby syndrome rests on “flawed science,” and to testify to innocent medical explanations for E.M.’s injuries. A representative of the Justice Administrative Commission (“JAC”) appeared in opposition to the request, but confirmed that the JAC was not aware of a less expensive in-state expert whose testimony could be expected to aid McDonald’s defense in this fashion. The State has offered nothing more than argument to contest McDonald’s position that the science it relied upon to secure a conviction is unsettled or that there are equally qualified experts who disagree with the positions taken by its experts. Yet, the State argues that due process was satisfied in this case when it offered to pay for the services of a local expert whose opinions would mirror the opinions held by its experts.
McDonald v. State
— So.3d —-, 2012 WL 5969648
Fla.App. 5 Dist.,2012.
November 30, 2012 (Approx. 1 page)
Noting that the State’s case relied almost exclusively on medical testimony, the Fifth DCA authorizes the retention of the defense expert, hints that a Frye test should be in the offing, and allows the Shaken Baby Syndrome battle to begin. I have seen many clumsy attempts to challenge Shaken Baby Syndrome in dependency court, usually resulting in CPT doctors screaming at defense attorneys YOU DON’T KNOW WHAT YOU’RE TALKING ABOUT. We will wait and see if Mr. McDonald’s attorneys fair any better.