Have also posted this in the expert forum, but this one gets more traffic.

We are set to try an Injury to a Child (Shaken Baby Syndrome) case in November. The defense has just designated Vincent Dimaio as their expert. To the extent that anyone has information on him, transcripts of past testimony, or other information to review, we would greatly appreciate your help.

You can contact me at:

Robert DuBoise
Assistant District Attorney
Parker County, Texas
rduboise@sbcglobal.net
(817) 598-6124 Phone
(817) 599-7628 Fax

I think he has published several books and chapters of books . . .

He is the retired ME from Bexar County. I thought his expertise was gun shot wounds. Anyway, if you have not already, be sure to contact Bonnie Armstrong, Executive Director of The Shaken Baby Alliance in Ft. Worth. The assistance they give in these cases is priceless!

He has a text out on Forensic Pathology and a text out on Gunshot Wounds. Sounds like they are just seeking a former ME with credentials as a big gun.[


QUOTE]Originally posted by Robert S. DuBoise:
Have also posted this in the expert forum, but this one gets more traffic.

We are set to try an Injury to a Child (Shaken Baby Syndrome) case in November. The defense has just designated Vincent Dimaio as their expert. To the extent that anyone has information on him, transcripts of past testimony, or other information to review, we would greatly appreciate your help.

You can contact me at:

Robert DuBoise
Assistant District Attorney
Parker County, Texas
rduboise@sbcglobal.net
(817) 598-6124 Phone
(817) 599-7628 Fax[/QUOTE]

I remember the CCA reversing a conviction a few years back, based in part on a book chapter written by Dimaio. The book was about toolmarks, and I was never sure how a physician was qualified to write it.

Dr. Di Maio testified for the defense in the Chante Mallard case (woman who hit the homeless man and left him in her windshield) on blood spatter issues. I can send you the transcript. We had Max Courtney.

I think it's more than the defense just looking for a former ME. If I'm not mistaken, Dr. DiMaio does not believe the injuries commonly seen in shaken babies are inflicted the way everyone else believes. Unfortunately, I can't be more specific, but I think we had a conversation about it once with Dr.....Dana? She worked with DiMaio at one time.

I'm curious about whether Bonnie Armstrong knew what his position is? I hope I'm not remembering this wrong. But the way to find out for sure would be to just call him and ask! I don't think he would refuse to talk to a prosecutor about his medical beliefs.

[He has a daughter who is/was a prosecutor].

I think there's an ethical prohibition against interviewing the opposition's expert witness without the other side's atty's approval. Check it out first, before you call him.

quote:

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Originally posted by Terry Breen:
I think there's an ethical prohibition against interviewing the opposition's expert witness without the other side's atty's approval. Check it out first, before you call him.

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Really? I recognize that we can't make anyone talk to us before trial, but if he is designated as a witness, is there a rule that prevents us from simply calling him up to find out whether he will or won't tell us what he has to say? If so, then what is the point of 39.14(b) which gives the court the authority to order the defense to disclose his experts to us?

I don't have the ethics rules in front of me, but is there one that say prosecutors shouldn't even try to talk to the defendant's experts before trial?

Rule 4.02(b) of the Rules of Disciplinary Conduct say:

In representing a client a lawyer shall not communicate or cause another to communicate
about the subject of representation with a person or organization a lawyer knows to be
employed or retained for the purpose of conferring with or advising another lawyer about the
subject of the representation, unless the lawyer has the consent of the other lawyer or is
authorized by law to do so.

The commentary adds:

Paragraph (b) of this Rule provides that unless authorized by law, experts employed or
retained by a lawyer for a particular matter should not be contacted by opposing counsel
regarding that matter without the consent of the lawyer who retained them. However, certain
governmental agents or employees such as police may be contacted due to their obligations to
the public at large.

[Presumably, if the expert is retained and has been designated as a witness, and not just as a consultant, then Texas law, in the form of the discovery rules, provides authority for contacting the expert. Similarly, a designation as an expert could be considered consent for such contact.

However, an even safer method for making such contact is to begin by sending a letter, with copy to defense counsel, to the expert, indicating he has been designated as an expert witness and asking him to contact you in advance of trial. Not only does that protect the prosecutor, it gives the prosecutor a piece of paper to mark as evidence and show to the jury for impeachment should the expert refuse to talk to the prosecutor.

Having previously used this method, it was entertaining to have the expert call and deny that he had been contacted, much less retained, by the defense attorney for use at trial. Seems the defense attorney was just bluffing. The expert didn't appreciate his name being used.]

JB, that is a cool story, but is telling defense counsel you are contacting his expert via carbon copy the same as obtaining his consent?

Does the letter not count as a "contact" with the witness without the attorney's consent? (I realize in your anecdote there was no problem, since the expert was, in fact, not employed by the defense.)

How about appearing in court at pretrial and when the judge signs your order requiring notice of experts, simply ask on the record for the defense's consent for the State to contact any expert witnesses about whom notice is given? Then you would either have a blanket consent or a statement on the record that they intend to hide that information from you.

quote:

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Originally posted by JK McCown:
I think it's more than the defense just looking for a former ME. If I'm not mistaken, Dr. DiMaio does not believe the injuries commonly seen in shaken babies are inflicted the way everyone else believes. Unfortunately, I can't be more specific, but I think we had a conversation about it once with Dr.....Dana? She worked with DiMaio at one time.

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I don't know if you're referring to Dr. Norma Jean Farley. She used to work w/ DiMaio and actually handled a lot of the shaken baby cases for him so he could focus on gunshots and whatnot. She's now our forensic pathologist for Hidalgo County. Contact me for more details if you need them (see profile).

-Joseph

It is my opinion that the rule designed to prohibit communicating with experts or others who have been retained to advise the attorney is directed more towards protecting attorney-client privileged types of information. There is not a formal privilege, but sort of a rule driven one by association that requires consent for communication. Remember the law school example of the accountant who is hired by the attorney to audit the records, etc.

Once that expert is designated as a witness in the trial, he or she changes from someone "employed or retained for the purpose of conferring with or advising another lawyer about the subject of the representation", into a witness who has information potentially relevant to the case. The rule does not prohibit "contact", it prohibits "communication about the subject of representation". So calling or writing the expert witness and asking them to talk to you is not a violation of any ethical rule.

So then the question becomes, "what the heck does the subject of the representation" encompass? I think you can clearly talk to an expert about their field of expertise without violating any rules. Use your own judgment about where to draw the line and when to request "permission".

Dr. Dimaio gave a talk at the Annual Criminal Law CLE in Houston this year. In summary, he believes that the collection of symptoms that doctors commonly associate with Shaken Baby Symdrome are actually not the result of shaking. He used several studies to show that the amount of force required for those symptoms are impossible to induce by shaking alone. He does believe however, that nearly all cases where a baby dies or is injured from what was called Shaken Baby Syndrome, was inflicted upon the child by the perpretator. He believes it was was more likely caused by throwing or dropping the child, not shaking.

I would suggest getting a copy of his paper from that conference and maybe going online to the Texas bar website and seeing if you can listen to his talk. You can get some CLE credit while you do it!

I would suggest as a matter of trial strategy that you not limit yourself and your experts to saying that the baby was only shaken. If you say that the baby was possibly thrown or dropped as well, you will probably avoid the pitfalls of Dr. Dimaio's opinions.


Steve Lilley
Asst. D.A.
Hopkins County