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U.S. vs. E-3. Thorough Pre-Trial Investigation Reveals Pre-Existing Condition of Injured Infant Child. This Results in Dismissal of “Shaken Baby” Charges.

Mr. Gapasin's client was charged with specifications for aggravated assault with the intent to inflict grievous bodily harm and to maim his five-month old infant daughter. He was also charged with specifications for absence without leave, false official statement, assault and battery upon his spouse, and two specifications for communicating a threat. Prosecutors tried to push the Article 32 Hearing forward without affording the Defense sufficient time to conduct any investigation into this very complicated case. Mr. Gapasin aggressively pursued a delay of approximately 3 weeks in order to allow the defense time to acquire an expert pediatric neurologist to help prepare for the Article 32. After much argument from both sides, the Article 32 Investigating Officer granted the Defense request to delay, and the Battalion Commander granted the Defense request to have an expert pediatric neurologist appointed to the defense team pre-Article 32. After extensive preparation with its expert, the Defense aggressively litigated the Article 32, and the Investigating Officer recommended dismissal of all charges and their specifications. As to the “shaken baby” allegations, evidence was elicited at the hearing that the child had a pre-existing condition that resulted in a type of “brittle bone” disease. This information would not have been discovered without having had the expert appointed for the Article 32 hearing.

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