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U.S. vs. E-4. Nobody Interrogates the Babysitter. “Shaken Baby” Allegations Dismissed after Aggressive Defense at Article 32 Hearing.

Mr. Gapasin's client was charged with Article 128 and Article 134, UCMJ, regarding an injury his daughter sustained while in the care of a babysitter on 28 November 2009. The CID file and medical information all indicated that the injury could only have occurred during the eight hour period when the infant was in the custody of the babysitter; however, CID insisted that neither the civilian babysitter, nor the civilian wife could have possibly harmed the child, even though Mr. Gapasin's client was in contact with her for only 15 to 35 minutes. A report by the leading Child Abuse expert in the Military indicated that any previous injuries to the child were accidental, exceptfor the broken femur sustained. Medical personnel opined it could only have occurred during the eight hour period that the child was in the custody of the babysitter. The expert's report also indicated that the child was born with toxoplasmosis, a rare disease that affects neurological, ophthalmological, and bone density development. The Article 32 Hearing involved conflicting testimony from most of the CID agents involved, and we were able to show that CID never considered the babysitter a suspect solely because she is a civilian. Under cross-examination by Mr. Gapasin, the agents always considered my client a suspect but failed to read him his rights before obtaining swornstatements from him. Mr. Gapasin also elicited testimony how one of the agents hadengaged in a pattern of “doctoring” CID reports. The Investigating Officerrecommended dismissal of all charges. Based on this recommendation, the case against Mr. Gapasin's client was dismissed without prejudice.

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