COMMONWEALTH OF MASSACHUSETTS

BRISTOL, SS. SUPERIOR COURT

DOCKET NO. 9673-CR-00106

COMMONWEALTH

v.

BRIAN PEIXOTO

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT

BRIAN PEIXOTO’S FOURTH MOTION FOR NEW TRIAL

Jennifer A. Fitzgerald, Esq., RI#6108 Lisa M. Kavanaugh, BBO#647261

Pending admission pro hac vice CPCS Innocence Program
11 Marcello Drive 7 Palmer Street, Suite 302
Jamestown, RI 02835 Roxbury, MA 02119
jenniferfitzgeraldlaw@gmail.com lkavanaugh@publiccounsel.net
(617) 607-5672

Dated: January 31, 2024

 Table of Contents
INTRODUCTION……………………………………………………………………………………………………………1

PROCEDURAL HISTORY…………………………………………………………………………………………..…....10

STATEMENT OF RELEVANT FACTS……………………………………………………………………….….…...14

I. THE PRE-TRIAL INVESTIGATION AND TRIAL PROCESS FAILED TO REVEAL THE
FUNDAMENTAL FLAWS IN THE COMMONWEALTH’S THEORY ABOUT HOW
CHRISTOPHER AFFONSO JR. DIED……………………………………………………………….……..15
A. The preliminary investigation focused on whether Christopher
Affonso Jr.’s bruising and unexplained collapse was due to chronic
abuse………………………………………………………………………………………………………15
1. Westport paramedics jumped to action in response to the
panicked arrival of Brian Peixoto, Ami Sneed, and an
unresponsive three-year-old child…………………………………………………15
2. In the face of Christopher’s seemingly unexplained collapse,
suspicion of chronic abuse, rather than an acute assault, drove the
initial investigation…………………...…………………………………………………..17
B. The medical examiner’s autopsy findings prompted investigators to
shift their focus from chronic abuse to acute head and body trauma
inflicted immediately prior to Christopher’s collapse and death………………..22
1. The autopsy revealed the presence of a six-inch skull fracture,
subdural bleeding, and bruises and abrasions that the medical
examiner interpreted as definitive evidence of acute trauma
inflicted with massive force………………...………………………………………...22
2. When the police spoke with Peixoto and Sneed at the police
station on January 22, two days before Dr. Weiner completed the
autopsy and formed his opinion about the cause of death, they
did not focus on who was alone with Christopher in the
moments immediately prior to his collapse……………………………………26
3. The police investigation shifted dramatically after Dr. Weiner
conducted the autopsy, discovered the skull fracture, and
concluded that the child was violently assaulted moments before
his collapse and death…………………………………………………………………...33
4. As a result of their singular focus on proving that Christopher
was assaulted in the basement immediately before he collapsed,
the prosecution team and medical experts failed to consider any
of the emerging evidence that contradicted this theory………………….36
5. Sneed’s story continued to change in significant ways when
she testified at the probable cause hearing……………………………………42
C. Alarming discovery delays, deficient preparation by the original, court-
appointed lawyer, and a rush to trial further undermined
Mr. Peixoto’s ability to mount an effective defense……………………………………43
 1. Discovery delays and careless preparation by Mr. Peixoto’s
original, court-appointed lawyer prevented the defense from
meaningfully testing the Commonwealth’s medical evidence………….43
2. The Commonwealth continued to obfuscate and delay discovery
even after Mr. Peixoto’s family retained a new attorney, Raymond
Veary, who proactively investigated the medical issues in the case…45
D. Trial proceeded on the assumption by both sides that Christopher was
fatally beaten within minutes of his arrival at the fire station, and that
the jury’s job was to decide whether Peixoto or Sneed committed this
heinous act………………………………………………………………………………….................49
1. The prosecutor’s presentation of the witnesses who saw
Christopher’s condition on the night he died was carefully curated
to advance the theory of a recent, violent assault and avoid all
references to older injuries……………………………………………………...……48
2. The prosecutor’s choice to filter the medical evidence through the lens
of Dr. Eli Newberger, a “child abuse expert” with no training in
forensic pathology who did not attend the autopsy or examine
Christopher’s body, produced yet further alarming distortions and
inaccuracies in the case record and cemented the Commonwealth’s
theory that Brian Peixoto was the only adult who had both the
motive and physical strength to inflict Christopher’s injuries…………53
3. By the time Dr. Weiner took the stand on Day Three, the jury had
already received extensive, inaccurate, and outright fabricated
information about his autopsy procedure and opinions about
Christopher’s injuries……………………………………………………………………60
4. Having ostensibly established that someone violently assaulted and
killed Christopher within minutes of his arrival at the fire station,
the prosecutor turned to Sneed as the cornerstone of her argument
that Peixoto was the only person with the motive and opportunity to
commit these acts………………………...……………………………………………….64
5. Reacting to trial counsel’s cross-examination of Sneed, the
the prosecutor called two final witnesses – Sergeant Kevin Butler
and Detective Michael Roussel – to rehabilitate its case………………….73
6. Peixoto’s only recourse was to take the stand to testify on his own
behalf and dispute this brand-new spin on what he said to the
police……………………………………………………………………………………………77
E. In a case that was unquestionably tried as a credibility contest between
Sneed and Peixoto, the jury never learned about available impeachment
evidence that could have powerfully corroborated Peixoto’s version of
events………………………………………………………………………………………...………...…83
1. Countervailing evidence about whether Christopher even had a
toilet accident……………………………………………………………………………….83
2. Favorable evidence of the circumstances of Peixoto leaving the
hospital………………………………………………………………………………………...84
 3. Sneed’s false claims about the doctor’s office……………………………...…84
4. Corroboration that Sneed’s fear of losing custody preceded
Christopher’s collapse and death…………………………………………………..87

I. THE DIRECT APPEAL AND PRIOR POST-CONVICTION PROCEEDINGS FAILED TO

REVEAL TH FUNDAMENTAL FLAWS IN THE COMMONWEALTH’S CASE…………….90
A. Mr. Peixoto’s lawyer on direct appeal failed to conduct an independent
investigation of the medical and autopsy issues in the case, even after Mr.
Peixoto specifically requested that he do so. As a result, he took no
post-trial steps to evaluate Dr. Newberger’s testimony or investigate the
validity of the Commonwealth’s other medical evidence…………………………...90
B. The lawyers who litigated Mr. Peixoto’s first two motions for new trial
likewise failed to independently investigate the medical issues or challenge
Dr. Newberger’s pivotal role in securing the conviction, even after Peixoto
specifically requested that they speak with Dr. Sussman…………………………...94
C. Although Mr. Peixoto’s 2012 new trial motion nominally sought to
repudiate the Commonwealth's medical evidence, it was doomed from the
start, due to counsel’s alarmingly deficient investigation and
presentation……………………………………………………………………………………………98

II. POST-CONVICTION ANALYSIS BY DRS. OPHOVEN, REIFSCHNEIDER, SQUIER, AND

VAN EE TURNS THE COMMONWEALTH’S MEDICAL EVIDENCE COMPLETELY ON
ITS HEAD, EXPOSES THE EXTENT TO WHICH NEWBERGER PROVIDED
KNOWINGLY FALSE EVIDENCE, AND REVEALS A COMPLETELY DIFFERENT
PICTURE OF CHRISTOPHER’S PHYSICAL CONDITION AS WELL AS THE TIMING
AND CAUSE OF HIS TRAGIC DEATH………………………………………………………………….102
A. Drs. Ophoven, Squier and Reifschneider collectively provide a
completely different explanation for what happened to Christopher, one
that accounts for critical scientific and clinical data, including descriptions
of his behavior in the days prior to death, that was previously ignored by
experts and that completely undermines the Commonwealth’s theory
about the timeline and cause of Christopher’s tragic death……………………...107
1. Medical basis and significance of the newly presented PTDI
diagnosis…………………………………………………………………………………….108
2. Corroboration of the PTDI diagnosis…………………………………………....109
B. Newly presented forensic analysis of the medical evidence debunks each
and every core assumption that produced Brian’s wrongful conviction
and reveals serious deficiencies in the original medico-legal
investigation……………………………………………………………………………………….…110
1. Immediate coma and cardiac arrest……………………………………………..111
2. “Multiple” impacts, “massive” force, and “inflicted” injuries…………..114
3. Interpretation and aging of Christopher’s bruises………………………..116
4. Condition of Christopher’s penis and scrotum……………………………...121
 5. The controversy surrounding Ami Sneed’s account of
Christopher’s clavicle fracture and forehead bruise reveals her
fundamental unreliability as a historian………………………………………122
C. Newly presented expert review of the trial record and medical evidence
also reveals that Dr. Newberger gave demonstrably false and misleading
testimony………………………………………………………………………………………….…126
LEGAL ARGUMENT…………………………………………………………………………………………………...128
I. THIS COURT SHOULD GRANT MR. PEIXOTO A NEW TRIAL BECAUSE A
CONFLUENCE OF NEWLY DISCOVERED SCIENTIFIC EVIDENCE, NEWLY
DISCREDITED EXPERT TESTIMONY, AND SCIENTIFIC EVIDENCE THAT COULD
HAVE BEEN DEVELOPED BY COMPETENT APPELLATE AND POST-CONVICTION
COUNSEL DEMONSTRATES THAT JUSTICE WAS NOT DONE AND THAT THERE IS
A SUBSTANTIAL RISK OF A MISCARRIAGE OF JUSTICE……………………………………...131
A. The expert opinions of Drs. Reifschneider and Ophoven that Christopher
Affonso Jr. was suffering from post-traumatic diabetes insipidus (“PTDI”),
and Dr. Ophoven’s further opinion that his cause of death was
hypovolemic shock due to hypernatremic dehydration caused by PTDI,
constitute newly available evidence that would probably have been a
real factor in the jury’s deliberations……………………………………………………..133
1. The PTDI diagnosis was not known by trial counsel, nor was it
discoverable with the exercise of due diligence……………………………133
2. The PTDI diagnosis “casts real doubt” on the conviction………….…...141
B. A confluence of evolving scientific research repudiating bruise coloration
to age bruises and deficient performance by prior counsel in not
challenging the reliability of Dr. Newberger’s testimony or investigating
the adequacy of the autopsy procedure, including by securing an
independent microscopic examination of the autopsy slides,
demonstrates that justice may not have been done………………………………...147
1. The post-trial repudiation of bruise coloration as a reliable basis
to date bruises constitutes newly discovered evidence that would
probably have been a real factor in the jury’s deliberations……….…147
2. Prior counsel deprived Mr. Peixoto of an available ground of
defense by failing to investigate the validity and accuracy of Dr.
Newberger’s testimony and to discover that many of the most
significant aspects of his testimony were demonstrably false
and/or scientifically invalid even applying contemporaneous
scientific norms……………………………………………………………….……..…..153
a. Deficient performance by trial counsel………………………….………….155
b. Deficient performance by appellate and post-conviction
counsel……………………………………………………………………………………158
c. Peixoto was clearly prejudiced by the deficient performance of
his prior counsel, who collectively deprived him of a substantial
__defense…………………………………………………………………………………….161
 3. Prior counsel was also ineffective in not investigating the
adequacy of the autopsy procedure, including by securing an
independent microscopic examination of the bruise tissue
samples collected by Dr. Weiner……………………………………………….....163
C. The Commonwealth violated Mr. Peixoto’s due process rights by
presenting and then failing to correct Dr. Newberger’s blatantly false and
misleading evidence at trial……………………………………………………………………166
II. A CONFLUENCE OF FACTORS CAUSED A SUBSTANTIAL RISK OF A MISCARRIAGE
OF JUSTICE BY DISTORTING THE PRESENTATION OF EVIDENCE BEARING ON
THE JURY’S RESOLUTION OF THE CREDIBILITY CONTEST BETWEEN AMI SNEED
AND BRIAN PEIXOTO THAT WAS AT THE HEART OF THIS CASE AS PRESENTED
BY BOTH SIDES AT TRIAL………………………………………………………………………………168
A. The Commonwealth’s misleading presentation of the evidence that
Peixoto was alone with Christopher immediately before his collapse and
death, which appellate counsel failed to correct, rendered the trial
fundamentally unfair…………………………………………………………………………...169
B. The prosecutor’s misleading presentation of the “proof” that Peixoto
alone had a motive to commit this purportedly violent assault, coupled
with the admission, without objection, of Newberger’s improper profile
testimony further contributed to the fundamental unfairness of the trial..177
CONCLUSION…………………………………………………………………………………………………………..…182
ADDENDUM A: Chart of injuries fabricated by Dr. Newberger……………………………………...184
ADDENDUM B: Changes in Ami Sneed’s Account of Bruises…………………………………………186

Record Appendix

Volume I
A. Dockets & Indictment
B. Prior Court Decisions
C. Select Prior Appellate and Post-Conviction Pleadings
D. Affidavits of Fact Witnesses
1. Affidavit of Brian Legendre
2. Affidavit of Jean Leimert, M.D.
3. Affidavit of John Arcuri, M.D.
E. Affidavits of Experts
1. Affidavit of Kent Reifschneider, M.D.
2. Affidavit of Janice Ophoven, M.D.
3. Supplemental Affidavit of Janice Ophoven, M.D.
4. Supplemental Affidavit of Chris Van Ee, PhD.
5. Supplemental Affidavit of Waney Squier, M.D.
6. Affidavit of Edward B. Sussman, M.D.
F. Affidavits of Counsel
1. Affidavit of Raymond P. Veary, Esq.
2. Affidavit of Dana Curhan, Esq.
 3. Affidavit of Greg Schubert, Esq.
4. Affidavit of Donald A. Harwood, Esq.
5. Affidavit of Jennifer Fitzgerald, Esq.
i. Exhibit A: Affidavit in Support of Motion for Access to Trial Exhibits
ii. Exhibit B: Release forms signed by Christopher Affonso Sr.
iii. Exhibit C: Copies of pleadings from court file
iv. Exhibit D: National Association of Medical Examiners audit of OCME
v. Exhibit E: Dr. James Weiner records
vi. Exhibit F: Dr. Eli Newberger records
vii. Exhibit G: Select media coverage of case
viii. Exhibit H: Attorney Lance Garth file materials
ix. Exhibit I: Attorney Raymond Veary file materials
x. Exhibit J: Attorney Dana Curhan file materials
xi. Exhibit K: Attorney Greg Schubert file materials.
xii. Exhibit L: Affidavit of Chris Van Ee, Ph.D (2014)

Volume II- Impounded Materials

A. Grand Jury Summons Return (Jan. 24, 1996)
B. Police Reports
C. DSS Records
D. Daycare Records
E. Christopher Affonso Jr. Medical Records
F. Complete OCME file produced in 2016
G. Probate Court Records
H. St. Anne’s Hospital Records of Tarissa Sneed

Volume III (flash drive only, hard copies available on request)

A. Probable Cause Hearing (1 Volume)
B. Suppression Hearing (2 Volumes)
C. Trial Transcripts (5 Volumes)
 INTRODUCTION

“Medical examiners have a responsibility to provide neutral or unbiased

interpretation and description of their autopsy findings and opinions. They
also have an obligation to ensure that their communications with law
enforcement do not mislead the investigative process. Moreover, if a medical
examiner’s initial impressions of the evidence later prove to be incorrect, as
occurred in this case, it is imperative that the medical examiner convey that
new information to key investigators. That did not happen here…This was
seriously misleading and led to a biased police investigation.”

- Affidavit of Dr. Janice Ophoven, June 30, 2022

The tragedy of this case began with the collapse and death of three-year-old

Christopher Affonso Jr. in Brian Peixoto’s basement apartment on the evening of January 22,

1996. But it did not end there. Instead, it was compounded by the grossly inadequate death

investigation by the Commonwealth’s medical examiner, Dr. James Weiner, who prematurely

and erroneously concluded that Christopher’s death was due to a violent assault inflicted

with such massive force that it would have rendered him comatose immediately after impact.

This early, ill-informed conclusion permanently altered the course of the investigation,

resulting in the wrongful conviction of Mr. Peixoto for violent acts that he has always

maintained that he did not commit and which the instant motion reveals did not happen. It

blinded the medical examiner to the need for additional data collection and analysis of the

timing of Christopher’s injuries. It caused police investigators to focus exclusively on

establishing which of the two adults present in the home when Christopher collapsed – his

mother, Ami Sneed, or her boyfriend, Brian Peixoto – had the opportunity, means and motive

to commit this purportedly fatal and acute assault. It even shaped how the defense

approached the case because, by the time of trial, even defense counsel had come to accept

that something terribly violent must have happened on the night that Christopher died,

leaving only a credibility contest between Sneed and Peixoto to explain his death. Perhaps

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most insidiously, it led the Commonwealth to enlist a well-known child abuse expert, Dr. Eli

Newberger, to establish that whoever assaulted Christopher that night did so with the intent

to inflict as much harm as possible. As the instant motion reveals, although Newberger’s

testimony was unscientific, went well beyond his areas of expertise, and falsely attributed

numerous findings to the medical examiner, it went essentially unchallenged by the defense.

Even worse, it supplied the defining narrative about what happened to Christopher, at trial

and in every subsequent appellate and post-conviction proceeding.

On March 7, 1997, a Bristol County jury convicted Peixoto of first-degree murder of

Christopher Affonso Jr. As the prosecutor outlined in her opening statement, there were

three central tenets of the Commonwealth’s case against Peixoto. First, Christopher was

healthy and well-cared for by Sneed until she met Peixoto, the man who “brutally beat him to

death.” Second, Christopher’s cause of death was an assault that happened in Peixoto’s

basement apartment on the night he died, and in the course of that assault his assailant also

inflicted injuries to his eyes, lips, genitals and scalp with the intent of causing as much pain as

possible. And third, not only was Peixoto the only person who had access to Christopher

when this “assault” occurred, but he had a motive that was corroborated by the physical

evidence, because he admitted that it would make him angry when Christopher wet his pants

and – according to the medical examiner and child abuse expert – the child’s genitals were

injured. The Commonwealth’s theory was that Peixoto, in a fit of rage prompted by a toilet

accident, assaulted Christopher’s face and genitals, then picked him up by his upper arms and

slammed his head at least 8 times onto a hard flat surface with a force described by

Newberger as equivalent to a second story fall onto concrete.

2
 In the nearly three decades since his trial and conviction, Peixoto has steadfastly

urged his lawyers to investigate and challenge the medical evidence and testimony that led to

his unjust and erroneous conviction. Yet it was not until the instant motion, which presents

the first-ever comprehensive differential diagnosis and reexamination of the underlying

medical findings and testimony, that this occurred. In the instant motion, Peixoto has finally

demonstrated what he has always pressed his lawyers to explain: that no one beat this child

to death on the evening of January 22, 1996, and the Commonwealth’s portrayal at trial of

Christopher’s physical condition prior to death, of what caused his death, and even of the

basic evidence and factors that the jury should consider in crediting Sneed’s testimony over

that of Mr. Peixoto, is completely wrong.

First, Christopher was not a healthy, well-cared for child up until the day he died. He

was recovering from a broken clavicle that happened at least ten days earlier, with varying

and inconsistent explanations by his mother and other witnesses for how and when that

injury occurred. Several days before he died, the staff at his new daycare noticed bruises on

Christopher’s body and questioned Sneed about their origin, who attributed all of them to the

earlier fall. Her explanations were contradicted by the physical evidence. Moreover, his lips

had been cracked and bleeding for days, and he had recently begun to have excessive toilet

accidents. On the Saturday before his collapse, and on the very morning of his collapse, both

Peixoto and Sneed noticed that he was stumbling, falling or tripping on stairs, and acting

drunk. Yet Sneed failed to take him to a medical appointment on the morning that he died

and then lied about the time of that appointment to explain why she failed to bring him in.

Second, deadly sodium and chloride levels detected in Christopher’s blood at the

hospital on the night he died – which were noted by the doctor who treated him in the

3
emergency room that night but never even considered by doctors or experts prior to trial –

conclusively invalidate the Commonwealth’s theory about the timing of his traumatic head

injury. The lab results, coupled with his medical records and clinical history, establish

Christopher was suffering from a rare neuroendocrine disorder known as Post-Traumatic

Diabetes Insipidus (“PTDI”). This condition – though clearly triggered by a traumatic impact

to his skull – took days not hours after impact to develop. The lab results definitively show

that Christopher did not die in the manner alleged by the Commonwealth, and presumed to

be true by the trial judge and appellate courts that considered his direct appeal and prior

new trial motions. Yet, prior to the instant motion, no court has ever even considered these

results, let alone been presented with an explanation for their significance to the timing and

cause of death. Likewise, while Sneed and Peixoto both indicated that Christopher had been

wobbly and stumbling into walls for several days prior to his death, none of the doctors who

testified at trial or the defense consultant who advised Mr. Peixoto’s trial counsel prior to

trial ever considered the relationship of his critically abnormal lab results to his unexplained

behavior or subsequent collapse and death.

The newly discovered PTDI diagnosis – coupled with post-conviction re-examination

of the underlying autopsy record, photographs, tissue slides, and medical testimony by

experts in the fields of pediatric forensic pathology, pediatric endocrinology, pediatric

neuropathology, and biomechanical engineering – demonstrates that Weiner and Newberger

were wrong when they concluded that Christopher “must” have been violently assaulted

within minutes of his arrival at the fire station on the night he died. They were wrong when

they asserted that the impact or impacts to Christopher’s head that produced his skull

fracture would necessarily have rendered him instantaneously comatose, and could only

4
have happened due to “massive” force. They were wrong when they insisted that the

majority of Christopher’s bruises necessarily happened on the night that he died,

concurrently with the skull fracture. And they were wrong when they opined that areas of

discoloration observed for the very first time at autopsy in his genital area constituted

evidence of traumatic injury. As trial counsel notes in his post-conviction affidavit filed

herewith, these revelations fundamentally transform the narrative of what happened to

Christopher in ways that would unquestionably have shaped his trial strategy, including by

affirmatively challenging the Commonwealth’s medical opinions. While the instant motion

does not and cannot explain what really did happen to cause the trauma to Christopher’s

head, it does definitively rule out the Commonwealth’s theory of prosecution.

Third, post-conviction re-examination of Newberger’s trial testimony reveals that he

gave glaringly unscientific, misleading, and demonstrably false testimony that left the jury,

trial judge, and justices of the Supreme Judicial Court on direct appeal and prior gatekeeper

petitions with a grossly distorted and inaccurate picture of what happened to Christopher.

He testified in ways that exceeded his area of expertise, offering a theory about the cause of

death that was counterfactual, scientifically invalid, and was definitively ruled out by the

findings of the medical examiner and neuropathologist who examined Christopher. He

repeatedly and falsely claimed that Dr. Weiner “found” injuries and evidence that he plainly

did not find, and then based his theory on those non-existent findings. Perhaps most

egregiously, Newberger falsely claimed that Dr. Weiner “found” “impact points” on

Christopher’s lips, genitals and scalp that were consistent with focused, intentional trauma,

then “explained” that these three areas were especially sensitive to pain, thus whoever

caused them did so with the intent to inflict as much pain as possible. In fact, Weiner made

5
no such findings. Newberger took this one step further, asserting that because the

perpetrator wanted Christopher to suffer, it was his opinion that these “excruciatingly

painful” injuries occurred first, before Christopher lost consciousness. The basis for this

opinion? “Just knowing what I know about child abuse.” He even went so far as to declare

with near certainty that the injuries to the penis and scrotum were caused by an adult who

was angry with Christopher for wetting himself. Cumulatively, these captivating but baseless

and false assertions allowed the Commonwealth to paint the picture of a monstrous fit of

rage that only one person, Brian Peixoto, could possibly have perpetrated.

The above revelations cast doubt on every facet of the Commonwealth’s case, as well

as many of the foundational assumptions made by the trial and appellate court judges who

presided over the direct appeal and prior post-conviction efforts, as well by all of Peixoto’s

prior defense attorneys. They reveal that the central focus of both sides at trial – to establish

which one of these two adults had the opportunity to assault Christopher in the basement on

the evening of his death – was completely misguided, because the head injury that eventually

caused his death did not and could not have happened at that time and there is also no

reliable evidence that his bruises were caused that night either. The new scientific evidence

also reveals that the prosecutor’s focus on “proving” that Peixoto was alone with Christopher

right before his collapse introduced a dangerous red herring, because Christopher’s head

injury did not and could not have happened that night, and it only became fatal because it

went untreated for so long. And they cast the prosecutor’s cross-examination of Peixoto –

including the Doyle error that the SJC already found – in a much more prejudicial light.

Fundamentally, until now, this case has always boiled down to a credibility contest

between Peixoto and Sneed. Yet the jury and trial judge tasked with assessing their

6
respective credibility were deprived of some of the most important and persuasive evidence

bearing on that issue. The new evidence in the instant motion powerfully corroborates

Peixoto’s credibility in key respects. It undermines the scientific and factual premises of

Peixoto’s so called “motive” by establishing that: (1) according to the EMT who transported

Christopher to the hospital, Christopher’s diaper was dry and he had no visible genital

injuries in the ambulance; (2) there is no microscopic evidence of injury to Christopher’s

genitals; and (3) the discoloration depicted in the autopsy photographs is consistent with

either venous congestion or scrotal drying, two well-known post-mortem artifacts. The new

evidence also explains and corroborates Peixoto’s observation that it appeared Christopher

was having a seizure in the basement (which he likely was, due to his profound state of

dehydration), as well as his observations about Christopher’s older bruises. And it supports

and explains why, according to not only Peixoto but also Steve Morton – the friend who lived

upstairs – and even Sneed herself, Christopher was stumbling, falling, and extremely

lethargic, including on the day he died. Even more critically, the new evidence powerfully

undermines Sneed’s credibility in ways that likely would have profoundly altered the jury’s

assessment of her testimony. It reveals that the evolution of Sneed’s stories – to hospital

workers, to police, at the probable cause hearing, and even over the course of her testimony

from the stand at trial – was motivated by an awareness of her own neglect and a persistent

desire to cover for herself as the police continued to evolve in their beliefs about what

happened.

It must be recognized that child abuse and death investigations never happen in a

vacuum, and this case is no exception. At the time of Peixoto’s trial, medical and forensic

experts were just beginning to grapple with the science and controversy surrounding the

7
investigation of pediatric head injuries and the validity of the “shaken baby syndrome”

hypothesis. The day before he testified at Peixoto’s trial, Newberger had appeared before the

grand jury in the case of Louise Woodward, the teenage au pair from Britain accused of

murdering four-month-old Matthew Eappen in what the Commonwealth alleged was a

violent shaking-and-impact assault resulting in the fatal combination of skull fracture,

subdural hematoma, cerebral edema and retinal hemorrhaging. Woodward’s widely

publicized trial, which took place less than six months after Peixoto’s, “rais[ed] worldwide

consciousness about the [vulnerabilities and potential flaws with the] hypothesis that infants

and toddlers could be seriously brain injured, even killed, by violent shaking.” 1 And while

neither Woodward nor Peixoto were tried on a theory that shaking alone caused the deaths

at issue, both death investigations were unquestionably informed by the emerging “shaking

baby syndrome” hypothesis underlying pediatric head trauma cases worldwide.

As outlined in the legal argument, the instant motion contends that Peixoto is entitled

to a new trial due to a confluence of factors that individually and cumulatively demonstrate

why justice was not done. First, newly discovered evidence of Christopher’s PTDI diagnosis

conclusively invalidates the Commonwealth’s theory about the timeline and manner of his

death. This new evidence – coupled with a confluence of discredited testimony by Weiner

and Newberger about the age and other important features of Christopher’s bruises,

evidence demonstrating that Newberger gave false and misleading testimony and that his

testimony about cause of death was based on non-existent injuries and should never have

been put before the jury, and evidence exposing the inadequacies of the medical death

1
Barry Scheck, Foreward: After a Quarter of a Century, Have Any Lessons Been Learned From the Trial of
Louise Woodward? Shaken Baby Syndrome: Investigating The Abusive Head Trauma Controversy, Cambridge
University Press (2023).

8
investigation – powerfully supports Peixoto’s argument that justice was not done. Second,

Peixoto was deprived of his federal and state right to due process and effective assistance of

counsel due to a combination of prosecutorial misconduct and prejudicial deficient

performance that prevented the jury from meaningfully assessing the credibility contest at

the core of this case.

To be clear, the instant motion does not seek to prove what actually happened to

Christopher, or even to establish that his death was due to an accidental trauma, rather than

an inflicted assault. The full story of what happened to Christopher may never be known,

because Sneed’s wildly inconsistent stories reveal her to be a fundamentally unreliable

reporter and the entire medico-legal investigation was infected by tunnel vision due to the

medical examiner’s premature and ill-informed cause of death determination, which he

recklessly conveyed to law enforcement without reservation, circumscribing and limiting the

forensic and factual investigation. What the instant motion does establish, however, is that

the Commonwealth’s explanation for what happened to this child is completely wrong,

because it is now clear that no one beat this child to death on the evening of January 22,

1996. Unlike the jurors, trial judge and appellate courts that previously considered

challenges to the Commonwealth’s case against Peixoto, this court is uniquely positioned to

revisit every aspect of that case that produced his conviction in light of the full array of

medical data and evidence described herein.

As the Supreme Judicial Court has acknowledged, there are some rare cases in which a

motion judge “may need to look beyond the specific, individual reason for granting a new

trial to consider how a number of factors act in concert to cause a substantial risk of a

miscarriage of justice and therefore warrant the granting of a new trial.” Commonwealth v.

9
Rosario, 477 Mass. 69, 77-78 (2017). This is one of those rare cases. For all of the reasons

argued herein, Mr. Peixoto urges this court to grant him an evidentiary hearing so that he can

demonstrate the confluence of factors that prove that justice was not done.

PROCEDURAL HISTORY

On January 24, 1996, the date that the medical examiner completed the autopsy and

signed the death certificate declaring Christopher Affonso Jr.’s sudden, unexpected collapse

and death a homicide, Peixoto was arrested and taken into custody on the charge of first

degree murder. 2 At his subsequent arraignment, the prosecutor argued that Christopher’s

death could only be explained by a violent assault that took place on the evening of January

22, and that Peixoto was the only person who had both the opportunity and motive to

commit this crime. 3 Less than a month later, on February 21, 1996, the Commonwealth

presented testimony by four witnesses at the probable cause hearing: Dr. James Weiner, Ami

Sneed, Lisa Morton and Steve Morton. On March 20, 1996, a Bristol County Grand Jury

returned an indictment charging Peixoto with first degree murder.

The pre-trial discovery process undermined Peixoto’s ability to challenge the

Commonwealth’s core assumptions about what happened to Christopher. 4 Although the

Commonwealth agreed in writing to provide the defense with “all reports of physical or

2
Citations to the Record Appendix reference materials provided in three volumes. Volume I (“RA1”) contains
the trial and appellate court dockets, prior appellate and trial court decisions, and post-conviction affidavits
filed in support of the instant motion. Volume II (“RA2”) contains materials filed subject to a Motion to
Impound, including police reports, DSS records, grand jury minutes, medical and autopsy records, and probate
court records. Volume III (“RA3”), provided on a flashdrive, contains a complete set of available pre-trial and
trial transcripts. The trial, suppression, and probable cause hearing transcripts are cited by Volume/Page
number (“Tr.#/#, SH#/#, PCH#).
3
RA1_0759-60.
4
See infra at p. 42-7.

10
mental examinations of any person or of scientific tests or examinations within the control,

possession or custody of the Commonwealth,” 5 this did not happen. Instead, discovery delays

obfuscated efforts to secure a complete picture of Christopher’s medical condition and the

autopsy procedures. Moreover, Peixoto was further stymied by the lack of diligence of his

original court-appointed attorney.

From March 3-7, 1997, the indictment was tried to a jury in Bristol County Superior

Court (Hely, J., presiding). Based on his understanding of the medical evidence he had

received and reviewed with his own expert, Dr. Edward Sussman, 6 trial counsel elected not

to challenge the Commonwealth’s core timeline and theory about how Christopher died or

the underlying premise that his death was the result of a homicide. Instead, he tried the case

as a credibility contest between Peixoto and Sneed, both of whom ultimately testified. After a

five day trial, the jury returned a verdict of guilty on March 7, 1997, and Peixoto received the

mandatory sentence of life without the possibility of parole. Significantly, the jury found that

Peixoto acted with extreme atrocity or cruelty but declined to find that he acted with

deliberate premeditation and malice aforethought.

Peixoto’s lawyer on direct appeal declined to conduct any independent investigation

at all of the medical and autopsy issues in the case despite Peixoto’s specific request that he

do so. Instead, the appellate brief focused entirely on two preserved trial errors: (1) whether

the prosecutor improperly brought to the jury’s attention Peixoto’s post-Miranda statement

5
RA1_0766-8.
6
RA1_0854. Significantly, Dr. Sussman was also the defense expert consultant in Commonwealth v. Epps, 474
Mass. 743, 752-3 (2016). In that case, the Supreme Judicial Court specifically observed that Sussman advised
counsel of his agreement with the medical theory espoused by the Commonwealth without first reviewing the
full corpus of available medical data, and the Court went on to find that the defendant was deprived of a
substantial ground of defense due to trial counsel’s reliance on Sussman’s advice despite his awareness that
there were others in the field to whom he could have turned. As discussed infra at 46-7, the exact same thing
occurred in this case.

11
expressing reluctance to talk to the police without an attorney (the Doyle error), and (2)

whether the trial judge erred in excluding evidence of statements made by Christopher’s

sister Tarissa that would have supported an inference that Sneed, not Peixoto, was

responsible for the death. Appellate counsel also argued that the Court should grant relief

under G.L. c. 278 sec. 33E because the verdict was against the weight of the evidence and

there was reason to doubt that Peixoto acted with malice.

The Supreme Judicial Court agreed that the prosecutor’s cross-examination of Peixoto

constituted a Doyle-type error, in that she “conveyed to the jury the impression that he was

hiding relevant information from the police,” thereby “implicat[ing] concerns similar to those

protected by the rule preventing adverse comment on a defendant’s actual exercise of his

rights.” Commonwealth v. Peixoto, 430 Mass. 654, 659 (1997). However, the Court held that

this constitutional error, although firmly established on the record, was harmless beyond a

reasonable doubt. The Court emphasized that the “evidence against the defendant was

substantial,” Id. at 661, rejected Peixoto’s remaining claim of error, and declined to grant

relief under G.L. c. 278, s. 33E because “the jury obviously disbelieved the defendant’s

version of this brutal and senseless killing of a helpless child and, as the defendant concedes,

the Commonwealth’s evidence was sufficient to justify the jury’s verdict of murder in the first

degree.” Id. at 662. The conviction was affirmed on January 25, 2000. 7

The lawyers who litigated Peixoto’s first two motions for new trial in 2001-2003

likewise failed to independently investigate the medical issues or challenge Newberger’s

pivotal role in securing the conviction. To make matters worse, they filed their new trial

motion without securing Peixoto’s input or consent, raising an ineffective assistance claim

7
SJ-2000-07925, RA1_0031.

12
based on a mental health defense that they knew (and internally admitted) was doomed to

fail. 8 When the initial motion was (predictably) denied without a hearing on January 22,

2002, due to counsels’ failure to present any affidavits or other evidence at all to substantiate

the claims, they strong-armed Peixoto into cooperating with the mental health defense that

he had never asked for or endorsed. 9 Beyond prejudicing Peixoto with a doomed strategy

that positioned him as a perjurer, the motion also cemented an erroneous and highly

prejudicial view of the medical evidence. It was denied on October 25, 2002; 10 the

gatekeeper petition was denied by the single justice on April 7, 2004 (Ireland, J.).

On July 3, 2012, represented by new post-conviction counsel, Peixoto filed a third

motion for a new trial. The motion raised two issues: (a) whether Peixoto was deprived of his

right to a public trial because members of the public were excluded from the courtroom

during jury selection; and (b) whether Peixoto was denied his right to effective assistance of

counsel, who “failed to fully and adequately investigate Christopher Affonso Jr.’s cause of

death and whether it was attributable to a fall down the stairs ten (10) days before the

child’s death while in the mother’s care. 11 Although it superficially sought to repudiate the

Commonwealth's medical evidence, it was doomed by counsel’s alarmingly deficient

investigation and presentation. The magnitude of these deficiencies is clear from the trial

judge’s lengthy decision denying the motion without an evidentiary hearing, which reiterated

many of the glaring medical inaccuracies that the motion failed to challenge. 12 In particular,

counsel’s failure to adequately address Newberger’s pivotal role in securing Peixoto’s

8
RA1_0603.
9
Id.
10
RA1_0039.
11
RA1_0238.
12
RA1_0057.

13
conviction deepened the judge’s reliance on Newberger’s misleading, inaccurate and

scientifically invalid explanation for what happened to Christopher. Peixoto’s third new trial

motion was denied on the last day of 2012, and the gatekeeper petition seeking to appeal this

decision was denied by the single justice on August 26, 2013 (Duffly, J.). 13 A subsequent

habeas petition was likewise unsuccessful.

STATEMENT OF RELEVANT FACTS

On March 7, 1997, a Bristol County jury convicted Peixoto of first-degree murder of

his then-girlfriend Ami Sneed’s three-year-old son, Christopher Affonso Jr. In the

Commonwealth’s rendering of the medical evidence, which the defense did not dispute, the

following was “clear”: (a) that someone violently assaulted and beat Christopher to death

within minutes of his arrival at the fire station where Peixoto and Sneed took him after his

collapse, (b) that virtually all of the bruises on his head and body occurred at or about the

time of this assault, and (c) that whoever assaulted him also intentionally inflicted trauma to

his penis and scrotum. By the time of trial, defense counsel had concluded, after consulting

with a board-certified forensic pathologist, that he had no basis to challenge the medical

evidence, leaving only one choice: to blame the child’s death on Sneed, not Peixoto.

What follows is a recitation of the facts relevant to this motion. Section I describes the

misguided set of medical conclusions and self-serving statements by Sneed that together

caused the police and prosecution to focus exclusively on Peixoto as the perpetrator of a

deadly assault and prevented defense counsel from developing an alternate explanation for

how the child died. It ends with a summary of the evidence as it came out at trial, illustrating

13
SJ-2013-0031, RA1_0066. Significantly, the gatekeeper relied on the Commonwealth’s erroneous framing of
the defense strategy at trial vis a vis the medical evidence in concluding that the issue raised in the new trial
motion was not new or substantial because it had already been litigated at trial and on direct appeal.

14
how a combination of factors deprived the jury of an accurate and complete picture of the

information that they needed to resolve the credibility contest between Peixoto and Sneed as

it was presented to them by both sides. Section II describes how Peixoto’s efforts to challenge

the medical evidence after his conviction were thwarted by his own lawyers on direct appeal

and in the prior post-conviction proceedings. And Section III describes the findings of post-

conviction experts in the fields of forensic pathology, pediatric neuropathology, pediatric

endocrinology, and biomechanical engineering, as well as new insights by key players at the

time of Peixoto’s original trial that corroborate and strengthen this post-conviction analysis.

I. THE PRE-TRIAL INVESTIGATION AND TRIAL PROCESS FAILED TO REVEAL THE

FUNDAMENTAL FLAWS IN THE COMMONWEALTH’S THEORY ABOUT HOW
CHRISTOPHER AFFONSO JR. DIED.

A. The preliminary investigation focused on whether Christopher Affonso Jr.’s

bruising and unexplained collapse was due to chronic abuse.

1. Westport paramedics jumped to action in response to the panicked arrival of

Brian Peixoto, Ami Sneed, and an unresponsive three-year-old child.

At approximately 6:10 p.m. on the evening of January 22, 1996, a car pulled into the

parking lot of the Westport Fire Station and slammed on its brakes. 14 Two adults, 26 year old

Peixoto and 21 year old Sneed, ran from the car. Cradled in Peixoto’s arms was the pulseless

and unresponsive body of Sneed’s three-year-old son, Christopher Affonso Jr., wrapped in a

blanket. 15 Less than an hour later, after multiple failed attempts at life saving measures,

Christopher was pronounced dead at St. Anne’s Hospital. 16

14
RA2_0049.
15
Id.
16
RA2_0104.

15
 Paramedics Douglass Orr and Brian Legendre were on duty at the fire station that

night. Orr was in the TV room when he saw the car lurch into the parking lot. 17 Peixoto

frantically relayed that Christopher had just vomited and was choking. 18 When Legendre

asked if there was a history of seizure disorder, Peixoto said that he wasn’t sure but that he

found him banging his head on the floor. Orr also noticed what he described as an “egg” on

the child’s forehead, as well as some scratch marks on his head. 19 As Legendre has since

explained, it appeared to him that Christopher was dangerously dehydrated, although the

subject of dehydration was never addressed in the subsequent death investigation and thus

the jury never learned this information. 20

Orr and Legendre carried Christopher into an adjacent room where the ambulance

was parked. 21 After initially suspecting that Christopher had suffered a seizure, Orr and

Legendre realized that he was also in cardiac arrest: he had no pulse, no respiration, and no

vital signs. 22 Over the next two to three minutes, they loaded him into the back of the

ambulance and began administering advanced life saving measures. 23 They attempted,

unsuccessfully, to insert an IV line. 24 They then took off for St. Anne’s Hospital, pulling over

once en route to intubate him. 25

17
RA2_0049.
18
RA2_0050.
19
Id.
20
Legendre Aff. ¶3, RA1_0364. This is especially significant because, as post-conviction experts have since
noted, dehydration is a defining feature of untreated PTDI. See Ophoven Aff. ¶21, RA1_0478; Reifschneider Aff.
¶11, RA1_0433. The fact that Legendre volunteered this observation in January 2016, without any prompting
by Peixoto’s present legal team – indeed before that team had secured a copy of Christopher’s lab results or
consulted with the experts who ultimately identified his PTDI diagnosis – lends further credence to the
accuracy of his memory about Christopher’s advanced state of dehydration. See Fitzgerald Aff. ¶7(e), RA1_0628.
21
RA2_0050.
22
RA2_0102.
23
RA2_0050.
24
As Legendre recently explained, it appeared to him that Christopher’s veins had collapsed, which was one of
several indicators to him that Christopher was dangerously dehydrated. Legendre Aff. ¶3, RA1_0364.
25
RA2_0050.

16
 During the ride, Legendre and Orr completely removed Christopher’s clothing and

conducted a standard head-to-toe assessment. 26 It was at that point that they saw what they

perceived to be “different stages” of bruises on his forehead, arms, legs and the left side of his

chest and torso. 27 They did not describe the bruising as acute or recent, nor did they describe

any injuries at all to the penis or scrotum. They also did not note any injuries to the back or

sides of Christopher’s head and scalp. They did, however, direct the ambulance driver, James

Thibault, to call the lieutenant on duty at the hospital to request a police response for

possible child abuse.

2. In the face of Christopher’s seemingly unexplained collapse, suspicion of chronic

abuse, rather than an acute assault, drove the initial investigation.

Christopher arrived at St. Anne’s Hospital at 6:19 p.m. in full cardiac arrest, pulseless

and unresponsive. 28 Providers opened his diaper to take a rectal temperature, which

measured 96 degrees. 29 Like the paramedics, hospital staff struggled unsuccessfully to insert

a peripheral IV; eventually, they resorted to drilling into the tibia bone in order to insert a

needle directly into the bone marrow (interosseous infusion), a method of last resort in cases

where IV access is difficult due to low blood pressure or hypovolemia. 30 Ultimately they were

able to establish a central line directly into Christopher’s femoral vein, allowing rapid

26
Legendre Aff. ¶3, RA1_0364. Legendre specifically recalls examining the diaper to assess his “level of
hydration” and noting that the diaper was “completely clean and dry,” with “no evidence of urination or
defecation.” Id. at ¶4.
27
RA2_0050.
28
RA2_0102.
29
RA2_0101.
30
Petitnas, et al., Use of intraosseous access in adults; a systematic review, Crit Care at 20-102 (2016).
(describing purpose of this procedure). It should be noted that the hospital’s continued difficulty accessing a
vein, coupled with the observation that Christopher’s lips were dry and cracked, corroborate Legendre’s
suspicion of his profound dehydration, a critical symptom of Christopher’s medical condition, PTDI, that was
previously ignored. RA2_0102; Reifschneider Aff. ¶6, RA1_0431.

17
infusion of 500 ml of normal saline, epinephrine, and atropine to hydrate Christopher and re-

start his heart. 31

Dr. John Arcuri was the attending physician that evening and oversaw resuscitation

efforts. He would later testify that he was immediately struck by two things: that Christopher

was extremely pale, and that there were bruises on multiple areas of his body that appeared

to be in various stages of development. 32 He learned from Legendre and Orr that Christopher

was already pulseless and apneic when he arrived at the fire station. 33 Arcuri’s head to toe

assessment revealed bruises across the forehead which he estimated to be three or four days

old, based on their yellow and green color. 34 He saw scratches with underlying bruising on

the vertex or top of his head, as well as bruising on his upper arms, lower legs, and back. 35 He

noted that Christopher’s lips appeared dry and cracked, with some blood on them. 36 Like the

paramedics, Arcuri did not characterize these injuries as acute or recent, nor did he make

note of any injuries or markings on the penis or scrotum. In an effort to understand what

caused the child’s sudden collapse, he examined the back of Christopher’s head for any frank

evidence of a skull fracture or hematoma, but found no such evidence, 37 nor did he note any

bruising, redness, scratches or swelling on the back or sides of his head. He examined the

eyes and observed what he believed to be retinal hemorrhaging, though subsequent

examination of both eyes by a board-certified ophthalmic pathologist would definitively rule

31
RA2_0102.
32
Tr. 2/15.
33
RA2_0102.
34
As Arcuri recently explained, it was on this basis that Arcuri concluded it was unlikely that they happened in a
“single episode occurring immediately before he arrived at the hospital.” Arcuri Aff. ¶12(a), RA1_0413. Though
he did not ever attempt to precisely pinpoint the age of Christopher’s bruises, Arcuri specifically acknowledges
in a post-conviction affidavit filed herewith that it is “not scientifically reliable to pinpoint the age of a bruise
based on its color.” Id. at ¶12.
35
RA2_0102.
36
Id.
37
RA2_0102-3.

18
this out. 38 And he ordered testing of a sample of Christopher’s blood, which was drawn

within 15 minutes of his hospital arrival. 39

At one point, Arcuri stepped out of the examination room to speak with Sneed himself,

because he wanted to “figure out what was going on.” 40 Sneed told him that Christopher had

been treated for a fractured clavicle fracture ten days earlier, but that “since then [he] had

been doing well.” 41 She also told him that on the night of Jan. 22, she went upstairs to smoke

a cigarette, “was called down by a sibling because there was something wrong with

Christopher,” and “that she arrived to find the child ‘banging his head on the floor and

vomiting.’” 42

When the police arrived, they began to question family members and friends,

exploring whether there was any history of past abuse that might explain Christopher’s

abrupt collapse. 43 They spoke with Sneed, in the presence of hospital social worker Corey

Oliveira, and she told them that Christopher fell on January 12, and that he went to St. Anne’s

hospital the following day, January 13, where he was diagnosed with a “cracked” collarbone.

She said that he had been acting “drunk” since the fall. 44 Additionally, she reported that on

January 20, she called her pediatrician’s office to report these symptoms, and she claimed a

38
RA2_0103; RA2_0377.
39
RA2_0109-11.
40
Tr. 2/29
41
RA2_0102. Sneed did not inform Arcuri that Christopher had been wobbly and acting drunk for days.
42
RA2_0080. By the time she spoke with Arcuri, Sneed had already spoken with the hospital chaplain, Dean
Michael Murray and provided essentially the same information to him. RA2_0047. Significantly, Murray – who
did not testify at trial – also told police that although Peixoto was present for this conversation and went along
with her account, Sneed did most of the talking. Id.
43
The police interviewed each of the following witnesses at the hospital: (1) Christopher’s biological father,
Christopher Affonso Sr., RA2_0013; (2) Sneed’s sister, April Sneed, RA2_0014; (3) Sneed’s mother, Janet Barton,
Id.; (4) Sneed’s older daughter, four-year-old Tarissa Sneed, RA2_0055; and (5) Peixoto’s friend and upstairs
roommate, Steve Morton, RA2_0036-7.
44
RA2_0081.

19
nurse told her to monitor him for a “couple of days” and call back if they persisted. 45 Sneed

did not mention that Christopher was scheduled to be seen by his pediatrician that very

morning but she did not bring him in, nor did she mention that when Christopher was

discharged from the hospital ten days earlier, she was warned in writing to immediately seek

medical treatment if he displayed any of the symptoms she was now describing. With respect

to the events surrounding Christopher’s collapse, she told police – as she had already

reported to Dr. Arcuri and the hospital chaplain – that she went upstairs to smoke a cigarette,

Peixoto went upstairs to take a shower, and a short time later, Tarissa ran upstairs to say

that Christopher was “banging his head on the floor and throwing up.” 46 Sneed mentioned

only three injuries that she had been aware of: a bruise on his mid right leg, a bruise on the

center of his forehead (from the fall that fractured his collarbone) and a bruise behind his

right ear (from his sister biting him). 47 She denied having seen any other bruises, 48 and when

asked about scratches on Christopher’s head, she insisted that she had never seen them

before. 49

At 7:02 p.m., after spending forty minutes on resuscitation efforts, Arcuri pronounced

Christopher dead. 50 He summarized his physical observations in a three-page medical report

prepared that night. Lacking any obvious explanation for how or why Christopher had

45
Id.
46
RA2_0081, RA2_0046-47.
47
RA2_0081, 0046. Significantly, Sneed’s explanations for these injuries were demonstrably incorrect, although
it seems that prior to the instant motion no one ever noticed this. Specifically, Sneed claimed that the bruise on
the center of Christopher’s forehead happened when he fell down the stairs and fractured his clavicle.
RA2_0081. However, the hospital records from his treatment for that injury establish that medical personnel
found only a slight abrasion to the left forehead but “no ecchymosis” (bruising). RA2_0126. Moreover, although
a forensic odontologist did confirm a bite mark, it was on Christopher’s right cheek and not behind his right ear,
leaving the injury to Christopher’s ear unexplained. RA2_0391-2.
48
RA2_0081.
49
Id. Sneed further volunteered that she had bathed Christopher one night earlier and washed his hair, implying
that if he had had scratches or bruises on his head that night, she would have noticed them.
50
Tr. 2/49.

20
suddenly collapsed and died, Arcuri listed three final impressions: “1. Cardiac arrest; 2. Rule

out shaken baby syndrome; 3. Rule out internal bleeding.” 51 He also noted that “[f]urther

causes of death and the death certificate [were] to be completed by the medical examiner,”

and he explained to investigators that some questions about the child’s death could only be

answered by the medical examiner. 52

Post-mortem hospital x-rays of Christopher’s skull, which Arcuri specifically

requested, showed no abnormalities or fractures. 53 Crucially, however, laboratory testing of

Christopher’s blood draw – repeated to ensure accuracy – revealed that he had numerous

abnormal electrolyte levels. Certain of those levels 54 were so critically abnormal that Arcuri

made note of them in his report, offering the caveat that “it is unclear as to the validity of

these lab results.” 55As Arcuri recently stated, the lab results – which he agrees are not

compatible with life – arrived after he had already pronounced Christopher dead. As a result,

they did not factor into his diagnosis or resuscitation efforts, nor did he consider whether

PTDI could explain the child’s collapse and death. 56

Following his death, the local and state law enforcement officers who had responded

to the hospital took photographs and collected evidence. 57 Child abuse investigator Carroll

collected Christopher’s clothing and what he characterized as a dirty diaper. 58 Two state

51
RA2_0103-4.
52
RA2_0104; RA2_0080.
53
RA2_0104.
54
Sodium (183), potassium (5.2), chloride (155), and bicarb (9).
55
RA2_0103.
56
Arcuri Aff. ¶¶3-4, RA1_0410.
57
Westport Police Detectives Michael Roussel and Mario Lewis, Trooper Michael King of the Bristol County
CPAC Unit, Sergeant Kevin Butler and Trooper Charles Dolan of the State Police, Troopers Steve Earle and
Joseph Condon of the State Police Crime Scene Services Unit, and Child Abuse Investigator Tom Carroll from the
Bristol District Attorney’s Office.
58
Significantly, Weiner’s autopsy report indicates that when he began his examination on January 23,
Christopher was still wearing a hospital gown and soiled disposable diaper. RA2_0377.

21
troopers, Earl and Condon, photographed Christopher’s body with a 35mm camera. Other

officers interviewed Arcuri, who described the injuries he and other hospital staff had

observed, 59 referenced the possibility of internal trauma, and also reported that both he and

his colleague Dr. Kotterbay had seen retinal hemorrhaging. 60 He also told police he believed

these injuries were likely sustained from abuse. 61

B. The medical examiner’s autopsy findings prompted investigators to shift their

focus from chronic abuse to acute head and body trauma inflicted immediately
prior to Christopher’s collapse and death.

1. The autopsy revealed the presence of a six-inch skull fracture, subdural bleeding,
and bruises and abrasions that the medical examiner interpreted as definitive
evidence of acute trauma inflicted with massive force.

On January 23-24, 1996, Dr. James Weiner – who was not board certified in anatomic

pathology or forensic pathology 62 – performed the autopsy. Weiner concluded that the cause

of Christopher’s death was multiple blunt force trauma injuries to the head that rendered

him immediately comatose. In his opinion, virtually all of the injuries were inflicted within

minutes of the child’s collapse. Significantly, Weiner arrived at this opinion without

microscopically examining any of the tissues that he sampled. 63 His findings also did not

reference Christopher’s current or historical pediatric and hospital records, nor does it

59
Like Arcuri’s own medical report, the police report documenting the interview of Arcuri makes no mention of
any injuries to the penis/scrotum or the back of Christopher’s head. RA2_0012-3.
60
Id. As noted supra, subsequent examination failed to confirm any retinal hemorrhages.
61
Id.
62
The 2009 report by the National Research Council (the “NAS report”) specifically flagged the lack of board
certification as a problem in death investigation cases, and one of the specific changes recommended in the
report was “all that medicolegal autopsies should be performed or supervised by a board certified forensic
pathologist.” National Research Council, Strengthening Forensic Science in the United States, A Path Forward,
268 (2009). Post-conviction investigation of Weiner’s background revealed that he not only lacked board
certification, but sat for and failed a board certification exam, likely in his primary discipline, anatomic
pathology. Fitzgerald Aff. ¶7(b)(ii-iv), RA1_0626-7.
63
Indeed, even when he testified at the probable cause hearing one month later, Weiner still had not
microscopically examined the skin tissue samples he collected at autopsy. PCH 39.

22
appear that he reviewed any witness accounts of Christopher’s condition in the days prior to

death. 64 As a result, he apparently did not know – and never bothered to learn – that in the

four to five days leading up to Christopher’s death, multiple witnesses had noticed bruises on

his legs, back and forehead, causing them to question Sneed. He also apparently did not know

– and thus did not consider – that Christopher’s lab results from the hospital reflected

critically abnormal electrolyte levels that were incompatible with life and that he was

exhibiting symptoms consistent with an older head injury for several days prior to his

collapse, including on the morning that he died, before Sneed left for school.

On the first day of the autopsy, conducted at the Medical Examiner’s Office in

Pocasset, Weiner conducted an external examination. 65 He noted that the lips appeared

erythematous and chapped, but apparently did not consider whether this was the result of

dehydration. 66 His autopsy report described contusions and abrasions to the head and scalp,

including an area of fine linear abrasions on the vertex of the scalp; it also referenced large,

confluent contusions on the top, back and sides of the head. Significantly, this was the first

time any witness described injuries to the back or sides of Christopher’s head, although as

noted above, Arcuri had specifically looked and felt these areas for evidence of swelling or

laceration without finding any. 67

64
It is noteworthy that by the time Weiner completed the autopsy and signed the death certificate, on January
24, 1996, the prosecutor had secured copies of Christopher’s hospital records through a grand jury subpoena.
RA1_0818. She had also obtained a copy of Christopher’s pediatric records with a signed release from Sneed,
which according to Dr. Leimert’s records was supplied on January 26, 1996. Leimert Aff. ¶11, RA1_0370.
However, neither set of medical records was contained within the certified copy of the "entire chart” generated
by the OCME relative to the death of Christopher Affonso, which was produced to post-conviction counsel in
2016 pursuant to Christopher Affonso Sr. 's signed release. Fitzgerald Aff. ¶5(g)(i), RA1_0624-5; RA2_0373-511.
65
PCH 9. Weiner prepared diagrams depicting the location of the external injuries he observed. RA2_0423-5.
These diagrams were not turned over in pre-trial discovery, and the defense did not receive them until 2016,
when the complete OCME file was produced pursuant to a signed release. Fitzgerald Aff. ¶5(g)(iii), RA1_0625.
66
RA2_0378. As noted supra at 106, n.454, dehydration is a defining feature of PTDI.
67
The first time anyone observed or documented these contusions and abrasions was after Christopher’s head
was shaved at autopsy. Ophoven Aff. ¶14(e), RA1_0461.

23
 With respect to the forehead bruises, Weiner claimed that two of the three were

inflicted at or about the time of death, even though as the police would later learn, the nurse

at Christopher’s daycare had noted all three bruises several days earlier. 68 He also concluded

that the other contusions and abrasions 69 – most of which were very small (¼ inch) and

superficial – happened at or about the time of Christopher’s collapse. Finally, he observed

what he characterized as a “contusion” on the tip of the penis and an “abraded contusion” on

the right scrotum. 70 Significantly, this was the very first mention by any witness of purported

genital injuries, although both EMTs and medical staff had opened Christopher’s diaper while

rendering treatment and law enforcement officers had examined and photographed

Christopher’s naked body in the emergency room. 71

On January 24, after obtaining a skeletal survey of Christopher’s body at the

University Medical Center in Worcester, Weiner resumed the autopsy in Boston. 72 It was

during this phase of his work, conducted in the presence of state and local law enforcement

officers, that Weiner first found what he estimated to be a “six-inch” linear fracture of the

occipital bone. It was also during this phase that he observed approximately 50 ml of what he

described as “acute” subdural blood, 73 concentrated in the left occipital region, as well as a

68
RA2_0059-60.
69
The autopsy report describes contusions and abrasions on the chest, back, abdomen, right upper arm, right
forearm, and left upper arm. It also describes two bruises on the right ear and an oval shaped bruise consistent
with a bite mark on the right cheek. RA2_0377.
70
RA2_0377, PCH 12.
71
According to Dr. Ophoven’s post-conviction review, this discrepancy supports the inference that the condition
of Christopher’s genitals at autopsy could be due to either venous congestion or scrotal drying, both of which
are post-mortem artifacts. This inference is further supported by Dr. Ophoven’s own microscopic examination
of the genital and scrotal tissue sample collected by Weiner, which revealed no evidence at all of any abrasion
or injury. Ophoven Aff. ¶14(f), RA1_0462; Ophoven Supp. Aff. ¶6(c), RA1_0504.
72
RA2_0376.
73
As Dr. Ophoven notes, “Dr. Weiner’s conclusory statements about the ‘acute’ nature of the hemorrhages
present in the tissue slides that he collected…are highly misleading [because] there are no markers that would
definitively show that the hemorrhaging occurred at or about the time of death…” Ophoven Supp. Aff. ¶4(h),
RA1_0501 (emphasis supplied).

24
single, large subgaleal hemorrhage that crossed the occipital region. Notably, Weiner found

no evidence of increased intracranial pressure. 74

Trooper King’s police report, which summarized the autopsy procedure, offers

important insights about the topics that the police discussed with Weiner and relied upon in

the continuing investigation. 75 Specifically, King noted the following opinions that do not

appear in the autopsy report but are consistent with Weiner’s testimony at the probable

cause hearing one month later:

● There were “at least eight trauma points” including bruising to the head, forehead,
arms, legs, penis and testicles.
● The trauma points all happened “at or about the time of death.”
● The “onset of symptoms [after impact] would be immediate, and the victim would
be at the very least unconscious and unable to function in a normal manner.”
● There was “no way a three-year-old could inflict these types of injuries on
himself.” 76

As Sergeant Kevin Butler would later testify, the autopsy procedure left law enforcement

with the firm (but incorrect) belief that virtually all of Christopher’s injuries – including the

skull fracture, arm bruises, genital bruises, and “contusions” to the top, back and side of the

head – happened during a single, violent assault that “must” have taken place very shortly

before he arrived at the hospital. 77 Conversely, they did not investigate other crucial facts

that emerged about Christopher’s condition in the days leading up to his death.

74
RA2_0423. See discussion infra at 60.
75
RA2_0019.
76
Id.
77
Tr. 4/15.

25
 2. When the police spoke with Peixoto and Sneed at the police station on January 22,
two days before Dr. Weiner completed the autopsy and formed his opinion about
the cause of death, they did not focus on who was alone with Christopher in the
moments immediately prior to his collapse.

On the night that Christopher died, Sneed and Peixoto each voluntarily agreed to meet

with investigators at the Westport police station. By then, Dr. Arcuri had informed the police

that, in his opinion, Christopher’s visible injuries were likely the result of abuse, and both he

and the EMTs who transported Christopher conveyed their impression that much of the

bruising they saw appeared to be older and in various stages of development. The police had

also learned from Steve Morton that the egg-shaped bruise on Christopher’s left forehead

(which Sneed denied having seen when she spoke to police at the hospital) had been there

for at least several days. 78 Moreover, the police had spoken to four-year-old Tarissa at the

hospital, who told them that nobody hurt Christopher, that he was really tired, that he

wouldn’t wake up. And according to hospital social worker, Corey Oliveira, who was also

present, Tarissa said that he was banging his head on the floor. 79 Thus the police were not

focused on the narrow window of time immediately prior to Christopher’s collapse, nor did

they have any medical basis to believe that any traumatic assault had necessarily taken place

that very evening.

78
RA2_0022. The police had also interviewed Christopher Affonso Sr., his mother Janet Barton, and Sneed’s
sister April Sneed. Affonso Sr. told them that when Christopher was last in his care, from January 14-16, he had
no bruises, marks or scratches on his head and was acting normal and in good spirits but had a couple of leg
bruises and blood shot eyes. Janet Barton told police that she had noticed a bruise and lump on the right side of
Christopher’s neck when she babysat for him on January 13, the day that he was diagnosed with the clavicle
fracture. RA2_0014-15. April Sneed told police that at some point during the week before Christopher’s death,
she had noticed that Christopher had a fat lip and was socially withdrawn. She also told police that Janet Barton
had seen bruises on the upper legs when she gave Christopher a bath just before he went to the ER on January
13, though Barton herself did not mention having seen these bruises. RA2_0044-5.
79
RA2_0055.

26
 Ami Sneed. Butler and Detective Mario Lewis interviewed Sneed, as memorialized by

Butler in a report dated Jan. 25, 1996. She began by describing her relationship with Peixoto,

indicating that they met in August 1995 and that she considered him her boyfriend. She

explained that Peixoto had access to her children and had been alone with them in the past.

Prior to Jan. 22, he was last alone with Christopher on Jan. 16, when he took care of both

children; he was last alone with Tarissa on Jan 21, when Christopher was in the care of

someone else. On the morning of Jan. 22, Christopher was stumbling and having difficulty

walking, but he appeared “fine” by 9:00 AM. 80 Peixoto dropped her daughter Tarissa at her

sister’s house, then dropped Sneed off at her certified nurses aid course at 9:45 a.m.;

Christopher stayed home with Peixoto.

When questioning turned to the evening of Jan. 22, Sneed reported (as she had at the

hospital) that during the 15-20 minutes before they found Christopher unresponsive, she

and Peixoto were both upstairs, where she had gone to smoke a cigarette and he had gone to

use the bathroom. She also again reported that they were still upstairs when Tarissa called

out, although this time she did not say that Tarissa said that Christopher was sick, and she

added that she heard a loud bang that sounded like the television falling off the stand.

80
She later elaborated that she first noticed that her son was not himself on the morning of Jan. 20, when he was
in a “drunken state,” appeared uncoordinated, and was having difficulty walking. RA2_0028. While she
maintained that the episode was short lived, she noted that her sister Heather – who took care of Christopher
during the day on Jan. 20 – commented that Christopher was not acting right and was too “quiet.” RA2_0027.
Sneed claimed that in response, she called the doctor and told a nurse that Christopher was unusually
withdrawn, was biting his lip to the point where it would bleed and was stumbling while walking. She claimed
she told the nurse of the recent collarbone fracture, and that the nurse suggested that his stumbling gait could
be due to favoring his shoulder and advised her to watch him for a couple of days to see if the symptoms
persisted. Id. However, as she had done at the hospital, Sneed again did not disclose that she had already been
advised by the doctor who diagnosed the clavicle fracture that she should immediately seek medical treatment
if he displayed the very symptoms that he had been exhibiting. She also again did not disclose that when
Christopher’s symptoms did persist, she failed to take him to a scheduled pediatric appointment that very
morning. Moreover, as discussed infra, her account of interacting with the doctor’s office over the weekend
turns out to be completely false.

27
However, in contrast with statements she had made just hours earlier at the hospital, to

police and medical personnel, Sneed now claimed:

● When they responded to Tarissa’s call, Peixoto went down the stairs first, and she
followed closely behind.

● When they reached the living room area of the basement, she did not initially see
Christopher because Peixoto was directly in front of her, momentarily obstructing
her view.

● It was Peixoto, not Tarissa, who told her that Christopher was banging his head on
the floor and throwing up.

● When she first saw Christopher, he was lying motionless on the floor, not crying.
When Peixoto picked him up, his eyes rolled back in his head, he said “mommy”
and took a breath. Sneed told Peixoto to call 911, but he said it would be quicker to
bring Christopher to the fire station down the street.

Sneed also began to waffle about which bruises she had prior knowledge of. Having

previously insisted that the only bruises she knew about were a bruise on the right leg and a

bruise behind the right ear (the result of Tarissa having bitten him), Sneed now told police

that she was aware of three bruises: a faded bruise on the top of the right thigh; a bruise on

the center of the forehead; and a bruise on the center of the back. When Butler told her that

there was a significant bruise on the left forehead, implying that it was one she must have

noticed, Sneed suddenly “remembered” that she actually had seen that bruise for the first

time earlier that day when Peixoto picked her up from school. She provided two

explanations: that Peixoto told her that Christopher received the injury when he fell on the

steps leading back into the house while she was at school; and that Steve Morton told her

that Christopher had fallen down the stairs inside the house while playing with Morton’s

son. 81 When Butler told her there were numerous other bruises seen at the hospital, she

81
Police would later learn that Morton’s son was not at the house earlier that day, and that according to Morton,
the “egg-shaped” lump on the left forehead had been there for at least two days before Christopher died.

28
denied knowing of them. 82 When asked to again describe which bruises she had seen, Sneed

added a bruise to the right ear, which she claimed was the result of Tarissa having bitten him

on Friday, January 19. 83

Sneed also volunteered that she had seen Peixoto handle Christopher roughly in the

past. She recalled only two occasions where Chrisopher was injured while in Peixoto’s care.

The first involved the bruise that Sneed had seen on Christopher’s back two and a half weeks

earlier, which she said Peixoto told her occurred when Christopher fell on the bed. The

second involved the bruise to the left forehead which Sneed claimed occurred earlier that

same day. Importantly, neither alleged instance of rough treatment was precipitated by a

toilet training accident. Finally, she described an inculpatory statement that she said Peixoto

made when he left the hospital. Although Sneed’s account did not place Peixoto alone in the

basement with Christopher right before his collapse, when she was asked, at the end of the

interview “who had the opportunity to cause the victim’s fatal injuries,” Sneed told told them:

“He’s the one who had to have done it. I haven’t touched him.” 84

82
Sneed denied ever having seen a bruise on the right cheek, below the right ear or scratch marks on the top of
the head. When asked about bruises on the upper arms, she denied ever having seen them, but claimed that just
a day earlier she had seen Peixoto pick Christopher up roughly by the upper arms and leave red marks.
RA2_0027. The fact that Sneed denied knowledge of the majority of Christopher’s bruises ought to have caused
investigators to carefully scrutinize her credibility from the start. Indeed, a DSS report from that night explains
that one of the reasons why the case was “screened in” for abuse was because Sneed had failed to explain
numerous bruises on her child and claimed that she had never seen them before, despite admitting that she
bathed him the night before. RA2_0027.
83
Police would later learn that although Dr. Weiner did find a bite mark when he performed the autopsy, it was
located on the right cheek, not the right ear. In Weiner’s estimation, it was two or three days old. Weiner did
find two bruises to the right ear, but neither was caused by a bite. RA2_0377. Police would also later learn that
daycare workers had observed 2 bruises on Christopher’s right ear and a bruise on his right cheek on Thursday,
January 18, the day before Tarissa purportedly bit Christopher, and that Sneed claimed that all of the bruises
occurred when Christopher fell on the stairs the previous week. RA2_0058-60, 86-97.
84
RA2_0029. The most obvious implication of Sneed’s final statement is that she was saying that he must have
caused these injuries at an earlier point in time, when she was not in the house.

29
 Brian Peixoto. Peixoto was interviewed that same night by Trooper Michael King and

Detective Michael Roussel, as memorialized in a report authored by King. 85 As the trial judge

found at the conclusion of the evidentiary hearing on Peixoto’s motion to suppress, based on

the sworn testimony of King and Roussel, the interview began as follows:

Trooper King told the defendant that they were investigating the death of CAJ.
The defendant seemed quite remorseful about the death, and he kept shaking
his head. Trooper King was about to explain the Miranda rights to the
defendant when the defendant said, “I can’t believe this. I can’t believe
Christopher is dead.” The defendant continued and said that he sometimes “got
pissed off when Christopher wet his pants, but I did not want him to be dead.”
The defendant also said at this time that he had taken a couple of Valium
tablets earlier in the evening. These statements before the Miranda warnings
were spontaneous; the police had not yet begun asking any questions. 86

The trial judge made additional findings with respect to the administration of Miranda

warnings, including with respect to the exchange that the prosecutor would later improperly

capitalize on at trial, as found by the SJC on direct appeal:

The defendant fully understood his Miranda warnings when they were read to
him by Trooper King. When Trooper King finished reading the five warnings
on the top half of the form, the defendant said he was not sure that he wanted
to talk. Trooper King left the room for a moment to talk to an assistant district
attorney, while the defendant remained in the office with Detective Roussel.
The defendant then decided that he wanted to tell the officers his version of
the events. Trooper King returned to the office. The defendant told the officers
that he had nothing to hide and wanted to talk to them. 87

Once Peixoto signed the Miranda form, confirming his willingness to speak with the police,

he answered a few basic biographical questions and then Trooper King posed a single

85
RA2_0015-8.
86
RA1_0024. King’s report stated only that, after being advised that the state police and Westport police were
jointly investigating the suspicious death of Christopher Affonso Jr., Peixoto, “stated without being asked any
questions that Christopher pissed him off because he wasn’t toilet trained but he didn’t want him to be dead.”
RA2_0015.
87
RA1_0024, SH1/4.

30
question: “could you tell us what happened throughout the day today, a narrative, basically,

of what had transpired." 88 In response, Peixoto gave an extensive narrative account that

included the following details that would later become especially important at the trial:

● On the morning of Jan. 22, he went upstairs to check on Christopher and

discovered that he had wet the bed. It bothered him when Christopher wet the bed
because it was not his job to care for him, so he called Sneed to clean him up.
Sneed took him to the first-floor bathroom to sponge him off.

● He began dressing Christopher shortly afterward and noticed he was acting funny,
complaining of pain in his head, shoulders, mouth and lips. Christopher’s lips were
bloody, and Peixoto thought he must have been biting them in sleep.

● Christopher had bruises on his arms and legs as well as his head, which Peixoto
had been told were related to his broken collarbone.

● After dropping off Sneed, Tarissa, and his own daughter Amber to their respective
destinations, he ran some errands before returning to his home with Christopher.

● When they returned home, Christopher bumped his head on his way down the
stairs. The remainder of the afternoon was uneventful; at one point Christopher
lay down with him on the couch while he and Steve Morton watched TV. 89

● After he picked up Sneed and Tarissa and they returned to the house, he and
Sneed got into an argument about a talk show about unmarried mothers. 90 The
argument began upstairs and continued downstairs.

● After Peixoto apologized, Sneed went upstairs to have a cigarette. When Ami went
upstairs, he stayed downstairs laying on his bed.

● The next thing that happened is he heard Tarissa call him saying Christopher is
throwing up. 91 He got up and went over to Christopher, who was making gurgling
noises, throwing up and violently banging his own head on the floor. After
describing the steps he took to try to assess and resuscitate Christopher, he

88
SH1/29.
89
This event was also corroborated by Steve Morton. RA2_0038.
90
Significantly, Peixoto made no attempt to hide this argument from the police, while Sneed made no mention of
it until her second stationhouse interview.
91
It bears noting that this short passage in King’s report took on disproportionate significance at trial, as
discussed in greater detail infra at 169-176. Through a series of leading questions of Butler and Roussel, the
prosecutor transformed this moment in Peixoto’s narrative account – when, by inference, Peixoto indicated that
he was lying in bed (and therefore still downstairs) when Tarissa called out – into an affirmative admission that
he was alone with Christopher right before his collapse. In fact, neither King’s report nor Roussel and King’s
testimony at the suppression hearing supports this claim. Infra at 71-3.

31
 clarified that Sneed arrived at just about the same time as he did and asked
“what’s wrong with him,” to which he responded that Christopher was banging his
head on the floor and throwing up.

● At the conclusion of the statement, he emphasized that he loved Christopher, that

Christopher loved him, and that he would never hurt him.

Unlike Sneed, Peixoto made no attempt to distance himself from Christopher’s injuries or

shift blame away from himself and onto Sneed. Significantly, he did not say that Christopher

soiled his pants that evening, nor did he say that the child did anything else to anger him.

Peixoto later accompanied Roussel to his apartment, so that the police could

photograph and document the layout and condition of the area where Christopher

collapsed. 92 According to Butler’s report, he asked Peixoto whether he had ever seen Sneed

discipline Christopher, and Peixoto said that he had seen Sneed shake Christopher after

having wet his pants. 93 Without being asked another question, Peixoto then said that “he

would get ‘bullshit’ when Christopher urinated or defecated in his pants…that he ‘hates the

smell’, and it would be bad enough if it were his own kid, but, ‘He’s not even my kid.’” 94

The photographs of the apartment show an intact living room with no disarray except

for a pillow on the floor, 95 consistent with what King described at trial. 96 Framed paintings

on the wall are not askew, furniture is not knocked to the side, no toys are thrown asunder,

and there is even a Christmas card balanced on top of the television, just a couple of feet from

where the assault allegedly took place. There is certainly no evidence of blood on any walls,

tables, or other hard surfaces in the area and nothing appears to be broken or even knocked

over. In other words, nothing at all about the photos taken in the room where Christopher

92
RA2_0018.
93
RA2_0024.
94
Id.
95
Trial Exhibits 8-11. RA1_892-4.
96
Tr. 1/229.

32
collapsed, on the night he died, supports the inference that there had just been a violent

assault in which Christopher’s head was slammed repeatedly into one or more hard surfaces

in that room. And there was nothing about the condition of that room that should have

caused Peixoto to suspect that something violent had just occurred. Unfortunately, Weiner

did not ever visit the scene as part of his medico-legal investigation; as a result, he never

separately assessed whether the scene was even compatible with or supportive of his theory

about the violent assault that resulted in Christopher’s death, which it was not. 97

3. The police investigation shifted dramatically after Dr. Weiner conducted the
autopsy, discovered the skull fracture, and concluded that the child was violently
assaulted moments before his collapse and death.

The tenor and focus of the police investigation shifted dramatically after Dr. Weiner

completed the autopsy and signed the death certificate on January 24, 1996. That very day,

the police brought Sneed and Peixoto back for further questioning. By then, the police knew

about the fracture on the back of Christopher’s skull. They also had come to believe, based on

Weiner’s preliminary autopsy findings, that virtually all of Christopher’s injuries – including

what Weiner had characterized as “multiple impact points” on the top, side and back of his

head – were inflicted in the course of a single assault that happened “just prior to the

moment when the child went unconscious.” 98 And they had also come to believe that

Christopher’s penis and scrotum were injured in the course of this assault, thus casting

Peixoto’s earlier statements about his frustration over toilet accidents in a completely

97
It would later emerge, through an audit of the OCME by the National Association of Medical Examiners
(“NAME”) conducted in 2000, that Weiner’s failure to attend the death scene, while highly problematic, was
typical of that office. The audit specifically criticized the OCME for its lack of “consistent involvement… in the
investigation of the scene and circumstances surrounding a death” and cautioned that death investigation
evaluations should not “be limited to the autopsy,” nor can they be “done in a vacuum or through a filter of
focused information.” National Association of Medical Examiner, Inspection of Massachusetts Medical Examiner
System ¶5 (2000). RA1_0670.
98
Tr. 4/15.

33
different light. In short, Weiner’s diagnosis forced investigators to focus solely on the

moments immediately before Christopher’s collapse, looking to establish which one of these

adults was alone with Christopher at this seemingly critical point in time.

Sneed agreed to speak with the police again. 99 From the beginning of the interview,

her tone was decidedly negative toward Peixoto, beginning with a detailed account of the

argument that Peixoto had already mentioned to the police. 100 Nevertheless, she initially

repeated many of the same details she had given at the station two days earlier, including: (a)

that they were both upstairs when Tarissa called out to say that something was wrong, (b)

that they ran downstairs together, and both saw that Christopher was unresponsive, with

eyes rolling back and visible vomit. 101 When the police directed her attention to the “banging

noise” that she described in her first interview, she said she thought she heard the noise after

Tarissa called out to them from the basement, as she and Peixoto responded to Tarissa’s

call, 102 speculating that it might have been from Tarissa jumping off the couch.

Sneed’s story changed dramatically as the police showed her autopsy photos: 103

● When shown two photographs of Christopher’s forehead, Sneed insisted that the
bruise on the right center of the forehead – which she circled – was the only bruise
present prior to the afternoon of Jan. 22, and she specifically denied knowledge of
the bruise on the left side of Christopher’s forehead. 104

● She then stated that she wanted to “change her story” about the timing of the
banging noise, insisting that it happened after Tarissa called out to say that her
brother was sick and after both she and Peixoto were already downstairs, but

99
As with her initial questioning, the police did not record Sneed’s second police station interrogation.
100
RA2_0031-2.
101
RA2_0032.
102
RA2_0033.
103
Id.
104
Id. By the time of Sneed’s second stationhouse interview, the police had already spoken with Steve Morton,
who told them he had observed a large egg-shaped swelling and bruise on Christopher’s left forehead that had
been there for two days, and he had mentioned it to Sneed. They did not confront Sneed with this inconsistency.
RA2_0036. They also did not confront her with the inconsistent statement she had made on 1/22, when she told
police she had seen the left forehead bruise for the first time that afternoon. RA2_0027.

34
 while Peixoto was in the living room out of view alone with Christopher. She also
claimed to hear two loud bangs, not just one. 105

● When Butler showed her three additional photographs of injuries to the top and
right rear side of Christopher’s shaved head, she claimed that she heard five loud
bangs, not just one or two, and she said they “sounded like someone punching a
wall.” She also claimed, for the very first time, that Peixoto went downstairs alone
in response to Tarissa’s call, that he was there for “possibly three minutes” before
she herself responded to the basement, and that he still was alone in the basement
when all the banging noises happened.

● Sneed was also shown two photographs of Christopher’s genitals. She denied
having seen “the bruises,” and when asked if Peixoto ever punished Christopher
for wetting his pants, she said that he would get very upset and make him stand in
the corner. She also volunteered that, for the past week, Peixoto had wanted to
change Christopher’s diapers, which was out of character. 106

● When the police pressed her to explain how Peixoto might have injured her son,
she speculated that “it had to be the wall.” 107

However, Peixoto invoked his 5th Amendment privilege and declined to be re-

interviewed. As a result, he was never specifically questioned about his knowledge of the

head and genital injuries documented for the first time at autopsy. He was also never further

questioned about his precise whereabouts when Tarissa called out, whether he had ever

used the bathroom (as Sneed told police), or – most importantly – whether he was alone with

Christopher during the critical moment when the police now believed he was injured.

Instead, wasting no time after extracting the story they expected to hear from Sneed, the

police immediately placed Peixoto under arrest and took him into custody. 108

105
RA2_0033.
106
RA2_0034-5. It should be noted that shortly after this interview concluded, Sneed told DA Investigator
Carroll that she had stayed at Peixoto’s house every night for the previous two weeks, except for Jan. 20.
RA2_0056.
107
RA2_0035.
108
According to the Westport Police Department dispatch log, Dets. Roussel and Lewis arrested Peixoto at 8:30
p.m. on Jan. 24. RA2_0020.

35
 4. As a result of their singular focus on proving that Christopher was assaulted in the
basement immediately before he collapsed, the prosecution team and medical
experts failed to consider any evidence that contradicted this theory.

By the morning of Peixoto’s arraignment on January 25, the Commonwealth was

firmly committed to Weiner’s hypothesis that all or virtually all of Christopher’s injuries

occurred that very night, and that they were inflicted with such massive force that

Christopher would have immediately lost consciousness. At arraignment, the prosecutor

argued that Peixoto was the “only person with access” to inflict these injuries and the only

one with the physical strength to accomplish this horrific deed. She characterized Sneed as

an “eyewitness” to Peixoto’s access to the child on the night he died. 109 Disparaging Peixoto’s

statement that the child had some sort of seizure or “fit” – as though he was trying to explain

away the child’s injuries as self-inflicted – the prosecutor argued there was “no way” the

child could have caused his own injuries. 110 Significantly, she did not argue that Peixoto

“admitted” to being alone with Christopher at the critical moment when this assault

supposedly took place, a claim she made for the first time in her closing argument at trial. 111

In the days that followed Sneed’s most dramatic changes during her second

stationhouse interrogation, multiple witnesses disclosed that they had seen numerous

bruises on Christopher’s forehead and body in days prior to his collapse. These accounts

directly contradicted Sneed’s description of her son’s condition, and many of them also

109
Curt Brown, Mother’s boyfriend accused of murder, The Herald News (Jan. 26, 1996). RA1_0759.
110
Id. As noted infra at 58, n. 242, the new evidence presented in the instant motion establishes that seizures
are entirely consistent with Christopher’s electrolyte disturbance due to PTDI. R Nardone, et al., Acute
Symptomatic Seizures Caused by Electrolyte Disturbances, 12 J Clin Neurol 1 at 21-23(2016).
111
Tr. 5/34.

36
contradicted Weiner’s opinion that “virtually all” of Christopher’s bruises happened at or

about the time of death:112

● EMTs Orr and Legendre told police on Jan. 29 about the “egg” they saw on
Christopher’s forehead, the scratch marks on his head, and “different stages” of
bruises on his body. 113 Neither of them characterized any of these injuries as
“acute” or “recent.” And as Legendre recently reiterated, the bruises that he saw
on Christopher’s head and body all “appeared to be somewhat older; they did not
appear to me to be fresh bruises.” 114

● Steven Morton reiterated to the police on Jan. 26, as he had already told them on
Jan. 22, that when he saw Christopher just a few hours before he died, he already
had a faded bruise on the center of his forehead and a big, egg-shaped bruise on
the left side of his forehead. He emphasized that both of these bruises had been
there for at least several days. 115 He also told police about an incident one week
prior to Christopher’s death when Sneed pointed out a faded bruise on
Christopher’s top right shoulder. 116

● Staff from the daycare that Christopher attended on January 18-19 told police that
they had noticed numerous bruises and marks on Christopher’s body and had
questioned both Sneed and Christopher about their origin. Anna Paula Costa,
director of the daycare, described numerous bruises, including on the back of the
left thigh and on the back of the right knee. 117 Susan Camara, Christopher’s
teacher, described bruises on the top of the backside of both legs, on the upper and
lower portion of the right ear, on the right cheek (which was “yellowish”), and on
the back. 118 The next day, Terry Copper – a registered nurse – examined his head
(but not other parts of his body) at the request of daycare workers, and saw three
bruises on the right, left and center of his forehead, all three of which appeared to
her to be older and turning green, as well as a small cut on Christopher’s upper
lip. 119

112
As noted infra at 47, Dr. Edward Sussman – the board certified forensic pathologist hired by trial counsel to
review Commonwealth’s medical and autopsy evidence – specifically highlighted this discrepancy to trial
counsel prior to trial.
113
RA2_0050.
114
Legendre Aff. ¶5, RA1_0364.
115
RA2_0038.
116
Id. When shown photograph #2 from the autopsy, he clarified that although he had “definitely” seen the two
bruises, he had not seen the abrasions depicted in the photo. Tr. 2/193.
117
RA2_0058.
118
Id.
119
RA2_0059-60.

37
The police also spoke with several witnesses who corroborated Peixoto’s observation that

Christopher appeared to have been having a seizure in the basement and supported the

inference that there was already something wrong with Christopher at least days before that

evening:

● Corey Oliveira, the social worker on duty at the hospital on the night that
Christopher died, told police that she recalled Tarissa saying that she saw “Bubba”
banging his head on the floor. 120

● Deacon Michael Murray, the hospital chaplain, told police that Sneed said that both
she and Tarissa saw Christopher banging his head on the cellar floor. 121

● Multiple classmates of Sneed told police that, on the morning of Christopher’s

collapse and death, Sneed said that she had kept him home from daycare because
he was falling, walking into walls, and “acting drunk.” 122

However, the police and prosecution failed to revisit their core assumptions in light of these

emerging accounts. Even more importantly, Dr. Weiner failed to revisit his key autopsy

findings as these new and contrary witness statements and sources of medical data came to

light. By the time he testified at the probable cause hearing on February 21, the

Commonwealth had completed its fact investigation and secured copies of Christopher’s

pediatric 123 and St. Anne’s hospital records, 124 which included documentation of

Christopher’s past treatment for the clavicle fracture and his entire medical history leading

up to his collapse and death. The state police had also presumably developed all the

photographs that they took at the hospital, which documented what Christopher’s body

120
RA2_0047.
121
Id.
122
RA2_0051. As noted infra at 107, the fact that Christopher was wobbly and acting drunk is clinically
consistent with, and supportive of, the newly presented diagnosis of PTDI. See Reifschneider Aff. ¶¶25-26,
RA1_0440-1; Ophoven Aff. ¶¶23-24, RA1_0478-9.
123
Leimert Aff. ¶11, RA1_0370. As described infra at 63 n. 269, the pediatric records alone should have placed
the Commonwealth on notice that Sneed lied to the police about calling the pediatrician over the weekend.
124
RA1_0818; RA2_0099-0120.

38
looked like at the hospital just after he was pronounced dead. Yet Weiner evidently did not

review any investigation reports or available medical records and hospital photographs. As a

result, he failed to learn or consider any of the mounting evidence that his initial assessment

of the timing of Christopher’s bruises was wrong, and he continued to insist that, with the

exception of a “paler older bruise to his mid forehead,” 125 bruises to the right thigh and shin,

and a bite mark to the right cheek, all of Christopher’s other injuries “occurred at or about

the time of death.” 126

Weiner also failed to learn about or consider the potential importance of

Christopher’s critically abnormal electrolyte levels on the night he died. Additionally, he

failed to learn of Sneed’s reports to several different people that Christopher was acting

drunk and wobbly and urinating excessively for at least several days prior to his death,

including on the morning that he died. As discussed infra at 104-108, the combination of

critically elevated electrolyte levels, an unexplained recent history of balance impairment,

and other evidence consistent with dehydration, ought to have alerted Weiner that

Christopher’s medical condition had been impaired for at least several days prior to his

collapse. Yet Weiner never deviated from his original opinions about the timing and cause of

Christopher’s death, and neither of these topics were addressed at all by either side in their

examination of him at the probable cause hearing.

The impact of Weiner’s tunnel vision was also evident in his failure to collect the type

of medical data needed to estimate the age of Christopher’s head injuries or to appropriately

document his work. 127 In particular, he failed to collect any tissue samples from the skull

125
PCH 18-9, 29-30, 37.
126
PCH 18-20.
127
Ophoven Supp. Aff. ¶4(g), RA1_0501.

39
bone, fracture site, or tissue overlying the bone at the fracture site. 128 He also failed to

preserve the subdural and subgaleal blood clots he observed for microscopic analysis. 129 His

written documentation was equally lacking: he failed to include descriptive details that bear

on the basis for his opinion about when the injuries occurred, including the color and

consistency of the subdural blood that he observed and the specific microscopic features that

led him to conclude the hemorrhages present in the tissue samples he examined were

“acute.” 130 The photographic documentation was equally lacking: there is apparently only

one image of the skull fracture, one image of the brain, and the bruises were documented by

three different photographers, with three different cameras, under three different lighting

conditions, without the benefit of a color scale. All of these deficits in turn diminished the

quality of information that was available to the “child abuse” expert, Dr. Newberger, who the

Commonwealth eventually retained.

Weiner’s tunnel vision also influenced his handling of the specialty consultations that

he requested in the case. He waited over seven months, until August 1996, to submit

Christopher’s brain and fragments of the dura to a neuropathologist, Dr. Schoene, 131 and he

waited even longer to submit Christopher’s eyes to a surgical pathologist, Dr. Dryja. 132 By the

time these consultations were requested, he had long since signed the death certificate and

completed his autopsy report. 133 Moreover, Weiner’s submission forms did not request that

any special care be taken by the specialists to evaluate the timing of Christopher’s injuries,

128
Squier Aff. ¶27(a)(iv), RA1_0568-9.
129
Squier Aff. ¶12(e)(iv), RA1_0553-4; Ophoven Aff. ¶9, RA1_0454-6.
130
Ophoven Aff. ¶17(c)(i), RA1_0474.
131
The fax cover sheet requesting a neuropathology consult is dated August 30, 1996. RA2_0450.
132
The submission form to ophthalmic pathology is dated November 8, 1996. RA2_0449.
133
The death certificate was signed on January 24, 1996. RA2_0419. The autopsy report was signed on April 10,
1996. RA2_0375.

40
even though his death certificate had listed the “time of injury” and “approximate interval

between onset [of injury] and death” as “unknown.” 134 On the contrary, these forms describe

the relevant “history” as “assaulted by another” and “? Retinal and/or subdural hemorrhage

of eyes,” 135 inviting specialists to infer that they were dealing with a confirmed assault.

However neither of these forms were provided to the defense in discovery, thus trial counsel

would have had no way of knowing that this is how Weiner framed the issues for the

specialist consultations. 136

Weiner’s misleading characterization of the “history” may explain why the

neuropathologist who examined Christopher’s brain failed to take any available steps to

evaluate the age of the fracture and bleeding. 137 While “[d]etailed examination of multiple

brain areas is necessary to identify traumatic injury,” Schoene took only two samples of the

brain for microscopic examination – both of poor quality – and he failed to identify their sites

of origin with specificity. 138 He used only one stain, H&E, to treat the slides, when additional

stains could have assisted in timing the origin of the bleeding. 139 Regardless of the

explanation for this cursory work, the net effect was to deprive Peixoto of critically

important data that could have aided efforts to reliably date Christopher’s skull fracture and

bleeding and independently evaluate the condition of his brain and skull.

134
RA2_0419.
135
RA2_0403.
136
It was not until 2016, when the OCME produced a complete copy of its file to the defense after Christopher
Affonso Sr. signed a release form, that the defense first obtained the submission forms. This was also when the
defense first obtained copies of several other key documents described elsewhere in this motion, including
Weiner’s handwritten slide key and the death certificate. Fitzgerald Aff. ¶5(g)(iii), RA1_0625.
137
Squier Aff. ¶12, RA1_0553-5.
138
Squier Aff. ¶12(d), RA1_0553.
139
Id.

41
 5. Sneed’s story continued to change at the probable cause hearing.

After receiving copies of the first ten police reports generated by investigators and

written assurance from the prosecutor that she would not be charged with any crime in

connection with Christopher’s death, Sneed agreed to testify at the probable cause

hearing. 140 Her story continued to change, as it had in every other venue where she was

questioned. Of particular significance to the instant motion:

● She claimed, for the first time ever, that Tarissa called out not once but twice;
Peixoto went downstairs in response to her first call, and “about three or four
minutes” later, Sneed responded to her second call. 141

● She now insisted that Peixoto did not tell her that Christopher was banging his
head on the floor and throwing up, and she claimed instead that she heard him say
this to someone at the hospital and it confused her because he had not told her
that himself. 142

● She testified that after Peixoto went downstairs, she could hear him talking to the
children, but she could not make out what he was saying. Yet she also claimed, for
the first time, that when she reached the basement, she heard Peixoto say to
Christopher, “Come on buddy, come out of this, I'm not going to yell at you
again…Brian won’t yell at you again.” 143

● When asked why her story had changed, she explained that although she tried to
the best of her ability to tell police everything she knew about the event
surrounding Christopher’s collapse, her initial statements on Jan. 22 were not
entirely accurate because she was confused by something that she heard Peixoto
say and because of her own emotional state. 144

● She now insisted that when she was interviewed on Jan. 22, she told the police
about hearing 4-5 banging sounds, and that several people were present and
taking notes. 145

140
RA1_0815-6.
141
PCH 95-6, 101.
142
PCH 107-8.
143
PCH 98.
144
PCH 106-8, 140-1.
145
PCH 138.

42
 ● She testified that the only bruises she had seen before were two forehead bruises,
one from the fall that led to his clavicle fracture and another that Peixoto told her
about that happened while she was at class on the day he died. 146

● When describing what she first saw when she arrived downstairs, Sneed said, “It
was like he was having a seizure.” 147

C. Alarming discovery delays, deficient preparation by the original, court-

appointed lawyer, and a rush to trial further undermined Mr. Peixoto’s ability to
mount an effective defense.

1. Discovery delays and careless preparation by Mr. Peixoto’s original, court-

appointed lawyer prevented the defense from meaningfully testing the
Commonwealth’s medical evidence.

The pre-trial discovery process further undermined Peixoto’s ability to challenge the

Commonwealth’s core assumptions about what happened to Christopher. Although the

prosecutor agreed in writing 148 to provide the defense with “all reports of physical or mental

examinations of any person or of scientific tests or examinations within the control,

possession or custody of the Commonwealth,” it is evident that this did not happen. As late as

September 13, 1996, the defense had not received a single medical or autopsy report, save

three pages related to the earlier clavicle fracture. 149

More than a month later, Peixoto’s court-appointed lawyer, Lance Garth made clear

that he still had not received the autopsy report or any autopsy photographs. 150 In the

discovery motions that he filed in October 1996, Garth requested copies of all photographs

146
PCH 90, 102-3, 118, 122.
147
PCH 98. Significantly, the jury never learned that Sneed herself observed that it appeared to her that
Christopher was having a seizure, because she was not confronted with this prior statement.
148
The pre-trial conference report was signed on May 31 with a return date of July 8, 1996. RA1_0766-8.
149
The Commonwealth’s first discovery letter to Garth, dated March 27, 1996, states: “Enclosed please find
copies of indictment and police reports, Department of Social Services report and MA State Police Reports in the
above-captioned matter. RA1_0765. The second discovery letter, dated September 13, 1996, states: “Enclosed
please find medical papers from St. Anne’s Hospital in regard to previous injuries to Christopher Affonso.”
RA1_0769. Significantly, the Commonwealth did not provide counsel with a copy of Christopher’s pediatric
records until December 16, 1996, even though it is now clear that they received them on January 26, 1996.
RA1_0812, Leimert Aff. ¶11, RA1_0370.
150
SH2/182.

43
and a full copy of the pathologist’s report, notes, diagrams and photographs related to the

autopsy. The prosecutor’s response made clear that as of November 20, 151 – less than two

months before the scheduled trial date – the only medico-legal evidence that it had provided

was: (1) a three-page lab report by Patricia Forti; (2) the six-page autopsy report; (3) a one-

page toxicology report; (4) copies of an unspecified number of photographs taken by the

State Police; and (5) copies of the 17 photographs shown to the Grand Jury.

To make matters worse, the prosecutor affirmatively opposed the defense motion for

additional pathology records, objecting “to supplying the defendant with any other

documentation by the pathologist, with the exception of the autopsy report.” 152 With respect

to photographs, the prosecutor stated she had already “provided the defendant with copies

of the photographs taken by the State Police photographer,” without disclosing the dates on

which those photographs were taken or specifying whether any other agencies took

photographs in the case. And it was not until December 16 that the prosecutor finally

provided copies of the day care, hospital and medical records she had obtained, 153 even

though these records were produced to the Commonwealth eleven months earlier. 154

Trial counsel’s own poor performance only compounded the problems created by the

Commonwealth’s discovery delays. Just one month into his representation, at the probable

cause hearing, he expressed his view that “obviously the child was beaten to death.” 155 His

subsequent actions reveal that he never wavered from or questioned this position. His

151
The cover letter accompanying these motions is dated November 20, 1996. RA1_0801.
152
RA1_0810.
153
RA1_0812.
154
RA1_0818; RA2_0350. The hospital records were subpoenaed to the grand jury, and the pediatric records
secured with a signed release from Sneed.
155
PCH 152. At that time, the only medical evidence he had received in discovery was a set of 17 polaroid
photographs taken by the state police at autopsy and shown to Sneed during her second police station
interrogation, but not the 35mm photographs that were taken by state police at the hospital.

44
discovery motions were carelessly prepared, copying and pasting language from motions he

had filed in other cases without reviewing them for accuracy. 156 Despite learning on

November 20 that the prosecutor would grant access to inspect additional physical and

scientific reports upon request, he evidently did not avail himself of this offer. Similarly,

while he filed a boilerplate motion for discovery of the complete pathology record, he failed

to pursue that motion after receiving the prosecutor’s written opposition, even though the

trial was scheduled to begin less than two months later. He also failed to secure funds to hire

a medical expert, even though doing so might well have strengthened his request for

additional discovery and/or supported a trial continuance. As a result of these omissions,

both counsel and Peixoto remained in the dark about the majority of the Commonwealth’s

medical evidence in the weeks before trial was scheduled to commence.

2. The Commonwealth continued to obfuscate and delay discovery even after Mr.
Peixoto’s family retained a new attorney, Raymond Veary, who proactively
investigated the medical issues in the case.

At the very end of December, Peixoto’s family hired a private attorney – Raymond

Veary – to take over the case. Garth did not move to withdraw until January 6, 1997, the

scheduled trial date. When the prosecutor opposed this request on the ground that it would

unduly delay the trial, the trial judge ruled that he would only permit Garth to withdraw on

the express condition that successor counsel be ready for trial within 60 days, with no

156
For example, counsel filed a Motion for Exculpatory Evidence in which he sought information about
“unidentified informants” and referred by name to two detectives who had no role whatsoever in Peixoto’s case.
RA1_0780. He also filed a Motion for Statements of Witnesses Regarding Identification despite the lack of any
question of identification in the case. RA1_0787. The prosecutor even commented on the carelessness of one of
his motions, RA1_0810, declining to respond to the “Motion to be Furnished with Statements of Promises,
Rewards, Inducements or Threats,” because the heading of this motion did not match its content.

45
further continuances. 157 This gave new counsel precious little time to learn the complex case

record, investigate, pursue discovery, secure expert assistance, and prepare for trial.

Over the next two months, counsel retained a board certified forensic pathologist, Dr.

Edward Sussman, to review the medical evidence. 158 With Sussman’s assistance, he

developed a list of additional records and evidence that were needed for a thorough expert

consultation, then sent a letter memorializing these requests. 159 He attempted

(unsuccessfully) to secure a complete set of photographs related to the child’s injuries,

beyond the ones that had already been produced to Garth. 160 He filed discovery motions to

preserve and gain access to all evidence collected at autopsy; 161 obtain a duplicate copy of all

x-rays; 162 compel delivery of all medical evidence;163 and obtain the CVs of all

Commonwealth expert witnesses. 164 Counsel’s motions stressed the importance of Peixoto’s

right to a full and fair opportunity to challenge the cause and timing of the injuries. 165

Even after receiving these particularized discovery requests, the prosecutor delayed

disclosure of key medico-legal materials. While counsel made a written request, in mid-

January, for copies of the neuropathology and surgical pathology reports, 166 the prosecutor

did not turn them over until the very end of January. 167 Despite receiving a request for a

157
RA1_0822.
158
Veary Aff. ¶6, RA1_0592.
159
In particular, counsel requested copies of the neuropathology and surgical pathology reports, both of which
had been faxed to the Office of the Chief Medical Examiner on December 31, 1996. He asked the Commonwealth
to preserve: diagrams; photographs; pathologist’s handwritten case notes; special autopsy studies; x-rays;
neuropathology reports; microscopic slides; bone studies; crime laboratory reports; serology reports;
toxicology reports; autopsy tissues; paraffin blocks; ophthalmic reports; and autopsy reports. RA1_0654-55.
160
RA1_0839-40.
161
RA1_0654-5.
162
RA1_0837.
163
RA1_0839-40.
164
RA1_0831.
165
Id.
166
These reports were submitted to the OCME on December 31, 1996. RA1_0824.
167
RA1_0825.

46
duplicate set of the polaroid photographs shown to the Grand Jury, 168 the prosecutor waited

until February 4 to produce this evidence. Even then, she failed to provide a complete set of

hospital and autopsy photographs, which became evident during a sidebar conference on the

first day of trial, March 3, 1997. 169

Perhaps most glaringly, on February 18, 1997, the prosecutor received the report of

Dr. Eli Newberger, the “child abuse” expert whose testimony would prove absolutely pivotal

at trial. Yet she waited until the final pre-trial conference, one business day prior to trial,

before disclosing Newberger’s report to the defense. 170 This left counsel with no time at all to

investigate Newberger’s reliability as an expert witness or identify potential avenues of

cross-examination. 171 Moreover, as would soon become evident, Newberger’s pre-trial

report barely scratched the surface of the topics on which he ultimately opined as an “expert”

at trial, further highlighting the prejudicial deficiencies in the discovery process.

On February 27, 1997 – just prior to receiving notice of the Commonwealth’s intent to

call Newberger as an expert at trial – counsel spoke with Sussman about the known medical

issues in the case. He memorialized their consultation in a memo to his file, noting the

following observations that are especially pertinent to the instant motion: 172

168
While the prosecutor did produce the polaroid photographs and an unspecified number of other
photographs to Attorney Garth, it is evident from the trial transcript that Veary did not receive them and
needed a duplicate set. Moreover, the copies that he eventually received, on February 4, were numbered
differently than the photos that were shown to Sneed during her testimony at the probable cause hearing,
which prevented him at trial from effectively utilizing them to undermine Sneed’s credibility as to which
bruises she claimed she did and did not know about prior to Christopher’s collapse. Tr. 4/26-37.
169
Tr. 1/233-4.
170
RA1_0823; RA1_0825. As discussed at greater length infra at 51-59, Newberger’s report failed to put the
defense on notice of many of the most significant–and erroneous–opinions he testified to. See RA1_0856-7.
171
For instance, counsel had no time to develop questions about Dr. Newberger’s assertion that the “child
abuse” was “chronic,” even though he filed a Motion for Bill of Particulars nearly one month prior to trial in
which he sought clarification of whether the crime was alleged to have occurred in one single incident or
multiple incidents over time. That motion was denied. RA1_0833-4.
172
RA1_0854.

47
 ● Sussman agreed with Weiner that the type of skull fracture that was detected at
autopsy is “usually the result of ‘great force’ having been applied and that it is
‘usually an inflicted injury.’”

● Sussman agreed with Weiner that this sort of fracture “would be a catastrophic
event and the onset of severe signs of neurological disease (i.e. coma, cardiac
arrest, etc.) would occur within moments to minutes after the infliction of the
injury.”

● Sussman agreed with Weiner that “the cause of death was clearly multiple trauma
to the head, and that such injuries could not have been inflicted by merely shaking
the baby without contact with a blunt object or surface.”

Sussman did caution counsel that, from his review of the clinical history and witness

statements, Weiner was “probably unaware of the numerous observations of prior bruises

and other events having occurred with the child and therefore, wrongfully assigned all or

most of the injuries to be ‘at or about the time of death.’” 173 However, as counsel recently

observed in a post-conviction affidavit, “the apparent concurrence of medical opinions about

the cause of death had the effect of focusing the trial of young Christopher’s alleged murder

upon the events occurred in the basement apartment where Peixoto was living at the time

which is where Christopher spent these critical moments.” 174

173
Id.
174
Veary Aff. ¶7, RA1_0592. It should be noted that, although it appears that Attorney Veary faxed a copy of
Newberger’s pre-trial report to Dr. Sussman shortly after their phone consultation, Dr. Sussman has no present
recollection of whether they discussed the contents of that report, nor is there any documentation in Veary’s file
to suggest they did. Sussman Aff. ¶12, RA1_0580; Fitzgerald Aff. Addendum, RA1_0638.

48
 D. Trial proceeded on the assumption by both sides that Christopher was fatally
beaten within minutes of his arrival at the fire station, and that the jury’s job
was to decide whether Peixoto or Sneed committed this heinous act.

1. The prosecutor’s presentation of the witnesses who saw Christopher’s condition

on the night he died was carefully curated to advance the theory of a recent,
violent assault and avoid all references to older injuries.

The prosecutor began her case with Trooper Michael King, who provided the jury

with a graphic description of the condition of Christopher’s body at the hospital and autopsy,

aided by a “compilation” of photographs taken by the state police and medical examiner. 175

King told the jury that when he first encountered Christopher at the hospital, he noticed

“severe bruising to his head, his forehead,” “scratches and abrasions on the top of his

head…[and] forehead,” and “bruises along his arms and legs.” 176 He explained that it was not

until the autopsy procedure that he first saw the “bruises” on Christopher’s penis and

testicles. 177 As noted supra, this evidence was particularly important to the Commonwealth’s

case, because it ostensibly established Peixoto’s unique motive. King also falsely testified that

one of the photos depicted “bruising and cutting to the lip area,” another depicted some

“bruising to the eyes and lids” and that another depicted bruising to the shaft of the penis. 178

He then summarized Weiner’s autopsy findings, asserting as uncontroverted fact (and

without objection to the obvious hearsay problems with his testimony) that Christopher had

175
Tr. 1/236. The vast majority of the photographs that were shown to King at trial were taken at autopsy, not
at the hospital.
176
Tr. 1/183. Significantly, he did not say that he observed any bruising or swelling to the back of the head when
he viewed Christopher at the hospital, even though the fuller set of hospital photographs provided for the first
time in 2021 reveal that there are several photographs at the hospital with that portion of the head exposed. He
also testified that he was able to see more bruises to the head area when he attended the autopsy. Tr. 1/238-9.
177
Tr. 1/244.
178
Tr. 1/244-6. In point of fact, Dr. Wiener did not find any bruising or cutting to the eyes or lips, and he found
no bruising to the shaft of the penis. Additionally, Weiner was not shown any of these photos during his
testimony two days later.

49
“eight trauma spots to the head and to the forehead area,” 179 a “massive fracture” on the rear

of the skull, and a “massive bruise,” blood clot, and visible blood on the brain. 180

On the second day of trial, the prosecutor began by calling the medical and civilian

witnesses who had interacted with Christopher and observed his physical condition on the

day he died. The direct examinations of these witnesses were carefully structured to advance

the theory that Christopher died of a recent trauma inflicted with massive force in response

to a toilet training accident. Dr. Arcuri described his efforts to resuscitate Christopher at St.

Anne’s Hospital, which included drilling a needle into his tibia after multiple failed attempts

to establish an IV line. 181 Over several pages of testimony, the prosecutor walked Arcuri

through photographs of Christopher’s body while fastidiously avoiding any mention of

Arcuri’s initial impression – as documented in his treatment record – that the bruises on the

child’s forehead all appeared to be three or four days old due to their green or yellow

color. 182 She also sidestepped Arcuri’s documented observation that he looked and felt for,

but did not find, any “frank” evidence of scalp damage or skull fracture, as well as the fact that

the post-mortem x-ray that he ordered failed to detect a fracture. While trial counsel did

establish on cross-examination that neither Arcuri’s examination nor the post-mortem X-ray

that he ordered revealed any “frank” evidence of a fracture, 183 the jury never learned that

Arcuri did not feel any swelling or see any bruises on the back of Christopher’s head. Most

importantly, although Arcuri’s report referenced Christopher’s diaper without noting any

179
Tr. 1/187.
180
Tr. 1/247.
181
Tr. 2/13.
182
RA2_0102.
183
Even on this point, the prosecutor took pains to establish that skull fractures can be missed by x-ray. Tr.
2/45.

50
genital injuries at all, the prosecutor’s questions allowed Arcuri to explain this as an

“oversight” in failing to “look down there to see if there were any injuries or anything.” 184

The examinations of EMTs Legendre and Orr were similarly curated to avoid evidence

that did not match the prosecutor’s theory of the case. Both told the jury that from the

moment Peixoto and Sneed first arrived at the fire station, the child was pulseless and apneic,

with no signs of breathing. 185 They explained that it initially appeared to them that most of

his bruises were on his head and forehead, with “two or three little scratches” in the back, 186

but that once his clothing was removed, they saw the additional bruises on his body, torso,

arms and legs. 187 As with Arcuri, the prosecutor eschewed any questions about the age or

physical characteristics of the bruises. As a result, the jury never learned that, like Arcuri,

both Legendre and Orr previously indicated the child’s bruises appeared older and at

different stages of healing. 188 The jury also never learned that Legendre opened

Christopher’s diaper in the ambulance, giving him the opportunity to observe the condition

of Christopher’s genitals and assess whether the diaper was soiled or dry. Indeed, it was not

until 2015, when members of Peixoto’s present legal team interviewed Legendre, that the

defense first learned that his “head-to-toe” assessment of Christopher revealed a clean, dry

diaper and no evidence whatsoever of genital injuries. 189

184
Tr. 2/27.
185
Tr. 2/131, 138.
186
Tr. 2/132.
187
Tr. 2/139.
188
RA2_0050. Orr and Legendre also each recounted how Peixoto told them that he found Christopher on the
floor, banging his head on the floor and vomiting. Tr. 2/129. On cross-examination, Legendre agreed that the
child was in a limp state that is sometimes seen after a seizure, which caused him to ask Peixoto whether he had
a seizure history. Tr. 2/134.
189
Legendre Aff. ¶4, RA1_0364; Ophoven Aff. ¶14(f), RA1_0462.

51
 The jury also heard from Lisa and Steve Morton, both of whom saw and interacted

with Christopher in the afternoon before his collapse and death. The thrust of the

prosecutor’s examination was to emphasize just how much worse Christopher looked in the

autopsy photographs than when they had last seen him alive. 190 However, Steve Morton also

testified that he had never seen Peixoto strike Christopher, 191 and he confirmed that he had

already seen two of the three bruises on Christopher’s forehead, and that they were days

old. 192 With respect to the topic of Peixoto’s attitude toward Christopher’s toilet training

accidents, the prosecutor elicited through Lisa Morton that on one occasion, Christopher wet

his pants and Peixoto picked him up too roughly before handing him to Sneed. 193 However,

she avoided questioning Steve Morton at all about this same topic, even though she had told

the jury in her opening that both Steve and Lisa Morton would testify that Peixoto became

extremely angry whenever Christopher had toilet training accidents. 194 And as defense

counsel established on cross-examination of Steve Morton, his memory of that same toilet

training incident was that Peixoto appeared “perfectly calm” and did not appear to be angry

when he handed Christopher to Sneed. 195

190
Tr. 2/158; Tr. 2/193. Notably, at the probable cause hearing, Lisa Morton testified that when she last saw
Christopher, at 4pm on January 22, the only parts of him that were visible were his hands and face, and she saw
him from a side view. PCH 54.
191
Tr. 2/183, 185.
192
Tr. 2/189.
193
Tr. 2/150.
194
Tr. 1/ 161. Significantly, the prosecutor had no factual basis for this assertion in her opening: not
only was there no evidence that Steve Morton told police or anyone else that Peixoto was particularly irritated
by toilet training issues, but according to investigation reports, he told the police just the opposite. RA2_0039.
195
Tr. 2/209-10.

52
 2. The prosecutor’s choice to filter the medical evidence through the lens of Dr. Eli
Newberger, a “child abuse expert” with no training in forensic pathology who did
not attend the autopsy or examine Christopher’s body, produced yet further
alarming distortions and inaccuracies in the case record and cemented the
Commonwealth’s theory that Brian Peixoto was the only adult who had both the
motive and physical strength to inflict Christopher’s injuries.

By far the most damning evidence at trial was the testimony of Dr. Eli Newberger, the

pediatrician and “child abuse” expert whom the Commonwealth retained just weeks earlier.

Newberger did not attend the autopsy or examine Christopher’s body, had never conducted

an autopsy, and lacked any training or experience as a forensic pathologist. 196 Nevertheless,

the Commonwealth chose to filter the key autopsy “findings” and opinions – including on the

ultimate issue of cause of death and timing of the fatal injuries – through the lens of

Newberger’s testimony, rather than first establishing what was found at autopsy through Dr.

Weiner. 197 This led to a profound distortion of the medical evidence, the extent of which has

never been considered by the trial or appellate courts that have examined Peixoto’s

conviction. 198

Newberger began by describing the “wide distribution” of injuries and “unusual

injuries” that, in his opinion, were emblematic of “chronic and severe abuse.” 199 He

highlighted three areas of injury which he claimed were “documented on the medical

examiner’s report of the skin examination that were particularly of concern”: the genitals,

lips, and scalp. 200 According to Newberger, each of these areas is “exquisitely sensitive to

196
Fitzgerald Aff. 7(d), RA1_0627.
197
Newberger testified on Day Two, while Weiner did not testify until the end of Day Three.
198
As noted infra at 51-59, Newberger’s testimony substantially exceeded the scope of his pre-trial report,
covering a wide range of topics that the defense had no reason to anticipate or prepare to cross-examine.
199
Tr. 2/52-3. Notably, according to Dr. Ophoven, such a determination cannot be made without considering the
history offered, including the provided explanation, a physical exam, and radiographic or laboratory analysis,
none of which Newberger performed. Ophoven Supp. Aff. ¶5(c), RA1_0502.
200
Tr. 2/53. In fact, no injuries to the lips were documented in Weiner’s autopsy report.

53
pain,” hence the injuries to these areas were particularly indicative of intentional abuse. 201

Twice, Newberger told the jury that whoever caused these injuries was “intent on causing

the child the greatest amount of suffering.” 202 He also insisted, without evidence, that they all

occurred at the same time as the fatal head injury. 203 He went even further, claiming that,

“knowing what I know about child abuse,” it was his opinion that these injuries were inflicted

before Christopher lost consciousness, because the person who inflicted them wanted to

ensure he suffered. 204

Newberger went on to describe the condition of these three regions of Christopher’s

body in ways that not only embellished on, or directly contradicted, the observations made

by Drs. Arcuri and Weiner, but also falsely attributed these embellishments to Weiner: 205

With respect to Christopher’s genitals:

● In his autopsy report, Weiner described a single “contusion involving the tip and
distal portion of the glans of the penis” and a “1/2 inch abraded contusion” on the
right scrotum. He did not note the color of either “contusion,” 206 and he testified
that these “injuries” occurred “at or about the time of death.” 207

● Newberger, by contrast, testified that there were at least two “fresh” injuries to the
scrotum and at least two injuries to the head of the penis, one of which he
estimated to be “in excess of 24 to 48 hours older” than the others. He falsely
claimed “the only source of information available” to him to assess the age of the
injuries was the autopsy photographs, when in fact he had the result of Dr.
Weiner’s microscopic examination of tissue slides. 208

201
Tr. 2/55. Significantly, Newberger offered no support for his assertion that these areas are especially
sensitive to pain. Moreover, even assuming this is true, Newberger offered no scientific support for his assertion
that, when injuries are found on areas of the body that are particularly sensitive to pain, these injuries are
suspicious for intentional abuse, nor does it appear that any such support exists.
202
Tr. 2/55, 105.
203
Tr. 2/55.
204
Tr. 2/104-105.
205
For a complete list of Newberger’s false statements, see the chart that appears as an addendum.
206
RA2_0377; Tr. 3/233-5.
207
Tr. 3/216.
208
Tr. 2/115-6, 118.

54
 ● Newberger also falsely claimed that there was an area of swelling and hemorrhage
on the shaft of the penis, 209 where Weiner had only noted one bruise to the penis
tip. To bolster this false claim, he testified – again falsely – that the penis had been
incised during the autopsy (which it was not), and that the incision revealed “a
substantial collection of blood underneath the upper part of the shaft and
involving a great portion of the head of the penis.” 210 According to Newberger, the
blood that was visible once the penis was incised “appeared more recent.” 211

● He falsely claimed that Dr Weiner found a “line shaped” injury 212 that appeared
“older than the ground of red, purple discoloration noted by the medical
examiner.” 213 Newberger contended that the significance of this “injury” was that,
“unfortunately, we do see in cases of child abuse involving three-year-old kids
whose toilet training has been a problem, [that] sometimes adults will pinch the
penis.” 214 In this case, however, he expressed near certainty that, in this case, the
line-shaped pinch injury had been caused “by an adult who was angry with the
child because he could not or would not contain his urine.” 215 Newberger’s
speculative opinion about the cause of the injury placed unwarranted focus on
Peixoto and paved the way for the Commonwealth’s eventual argument that
Peixoto left his mark on Christopher’s body, like the “Z from Zorro.” 216

● In reality, Weiner had not described any line-shaped injury to the penis in his
autopsy report, nor had he noted that the color of the bruise on the head of the
penis was “red-blue.” He had not found any amount of blood under the upper part
of the shaft of the penis. He had not found any swelling or discoloration to the
shaft of the penis, and only found what he believed to be a single abraded
contusion to the scrotum. And he had not found any “older” injuries to the penis or
scrotum. 217

209
Tr. 2/98-9.
210
Id.
211
Tr. 2/59-60. Not only is there no absolutely scientific basis for the claim that it is possible to age blood by the
visual appearance of the blood itself, but Weiner did not state that he viewed the blood via incision or that it
appeared to be more recent.
212
Tr. 2/53-5.
213
Tr. 2/59.
214
Tr. 2/100.
215
Tr. 2/99-100. Christopher’s biological father, Christopher Affonso Sr., did also claim, for the first time at trial,
that the last time he saw Christopher –which was the weekend before his death –he noticed a “little red mark on
the tip of his penis” that he described as a “little line” or “red ink line.” Tr. 3/285-7. From the flow of the
prosecutor’s questions, it is evident that she fully expected to be able to elicit this information from him.
However, the defense had no reason to anticipate that Affonso Sr. would make this highly inculpatory claim at
trial, because when he was interviewed by police on January 22, he told them that Christopher had no injuries at
all – other than a bruise on his shin and bloodshot eyes – when he last stayed with him (on January 14-16).
216
Tr. 5/54.
217
RA2_0377; Tr. 3/213, 233-5, 242-3.

55
 Similarly with respect to Christopher’s lips and eyes:

● Weiner’s autopsy report described Christopher’s lips as “erythematous and

chapped,” which was consistent with Dr. Arcuri’s report, describing them as dry
and cracked. 218

● Yet when Newberger “summarized” the autopsy findings, he falsely claimed that
Weiner had found multiple impact points in the form of “small contusions” to the
lips, 219 and that Weiner had documented these injuries in his autopsy report and
noted that they were “fresh injuries.” Newberger testified that they “didn’t come
from the child biting himself,” but rather “from a blunt force to the frontal plane of
the head.” 220 Newberger confidently asserted that the injuries to the lips were
“derived from the trauma of being struck from the outside with pressure …
directly over the teeth.”

● In describing Christopher’s eyes, Weiner’s autopsy report made no mention

whatsoever of any impact points or injuries to either eye.

● Yet Newberger claimed to be able to discern an “impact point” and some kind of
“focused trauma” directed toward one of the eyes. 221

Newberger also testified extensively about his interpretation of the bruises on

Christopher’s trunk and limbs. Despite the fact that his only source of information about

bruise color was the photographs he reviewed – because Weiner did not actually describe

their color in his autopsy report, nor did he expressly rely on color in assessing their age –

and despite acknowledging that many of the photographs were of such poor quality that

bruise color was missing, Newberger confidently claimed that he could date the child’s

bruises based solely on their color in the photographs. 222 He asserted that “for the most

part,” the “great number” of bruises were “blue, red, and purple, meaning that they had

218
RA2_0378; RA2_0103.
219
Tr. 2/54.
220
Tr. 2/54, 81.
221
Tr. 2/80, Ex. 34.
222
Newberger’s testimony about the quality of the photographs was alarmingly misleading. He claimed, for
example, that in flash photography, light refracts against the skin and oftentimes, the color will be missing. Tr.
2/70. He also testified several times that the color of a particular bruise (supporting his conclusion that it was
“fresh”) would be evident to the jury in a subsequent photo, but that photo was never actually shown. Tr. 2/72,
Tr. 2/76.

56
been obtained very recently.” 223 He went so far as to claim that the majority of the bruises

could be aged to within one hour of arrival at the hospital, 224 including all three of the

bruises on Christopher’s forehead. 225 Additionally, he purported to be able to detect multiple

impact points within what Weiner himself had described as singular bruises, based solely on

the variation in color within the bruises. 226

Newberger also grossly mischaracterized the condition of Christopher’s head and

scalp, including the location of his scalp bruising in relation to the skull fracture and subdural

bleeding that Weiner observed at autopsy:

● Referencing photographs of Christopher’s head before and after it was shaved at

autopsy, he falsely claimed that they depicted an area where Weiner had observed
a “massive amount of swelling” on the surface of Christopher’s scalp. 227

● In reality, Weiner did not observe or document any swelling on the back of
Christopher’s head, nor did Dr. Arcuri detect any swelling or hematoma despite
specifically looking and feeling for it in the course of his resuscitation efforts. 228

● Newberger went on to assert that the fracture was located directly under the right
side mid level bruise.

● In reality, Weiner specifically explained that it was not possible to associate the
fracture with any particular impact point or points and that, because of its

223
Tr. 2/58. Not only has the scientific community since completely repudiated reliance on coloration as a basis
to age bruises, as discussed in greater detail infra at 113-7, but the stated basis for his opinion on the age of
Christopher’s bruises is to a large extent repudiated by his own writings. In an article first published in 1981
(republished in 1992), Newberger wrote that, “[i]n the first 24 hours, a bruise may be reddish-blue or purple;
from the first to the third day, the color becomes blue or blue-brown; with further metabolism of heme, the
bruise acquires a greenish cast on the 5th to 7th day; and by the 10th day, the bruise may appear to be yellow.
Before disappearing completely in 2 to 4 days the bruise may take on a brownish hue. The child’s skin color
may make some of these transitional colors variable and difficult to interpret.” He also acknowledged in that
article that, “[t]he cutaneous manifestations of child abuse may be ambiguous,” an important concession about
the limitations of aging bruises based on coloration that the jury never heard. Stephen Bittner, Eli H.
Newberger; Pediatric Understanding of Child Abuse and Neglect, 2 Pediatric Review 7 at 197-207(1981).
224
Tr. 2/114.
225
As noted infra, even Weiner believed that the bruise on the center of the forehead was older, Tr. 3/232-4, yet
trial counsel did not point this out to the jury.
226
Tr. 2/68-70 (“not just one,” but “multiple” bruises on the right forehead); Tr. 2/91-2 (“multiple impact
points” within the bruise on the left shoulder blade); Tr. 2/65-6, 75-6 (“multiple” bruises on the upper left arm).
227
Tr. 2/85-6.
228
Tr. 2/36-7; Ophoven Aff. ¶16(e), RA1_0471.

57
 location, the fracture could even have been produced by an impact or impacts to
another part of the head entirely. 229

● Additionally, referring to Exhibit 32, he told the jury that what that photograph
depicted was a fracture line traveling across the back of the head. 230 However, the
fracture was actually located at the very base of the skull as illustrated in the
diagram below. 231 Consistent with this, when Weiner was asked to point out for
the jury the area on his own head where the skull fracture was located, he
explained that he was unable to do that with very much precision because the
fracture line traveled across the base or “underside” of the skull, which is an area
that Weiner could not readily point to with his finger. 232

Figure 1: Autopsy diagram identifying the location of the occipital fracture. 233

Although Newberger’s assertions about the location of the fracture and his

characterization of “associated” impact points were directly contradicted by the physical

evidence and Weiner’s autopsy findings, he testified as though they were uncontroverted

facts. As a result, both the jury and the trial judge – who presided over all of Peixoto’s prior

new trial motions – were left with a profoundly inaccurate understanding of the medical

evidence and of Christopher’s physical condition at the time of his death. 234

229
Tr. 3/229.
230
Tr. 2/101.
231
Ophoven Aff. ¶16(b)(ii), RA1_0469; Van Ee Aff. ¶14, RA1_0516-7.
232
Tr 3/227-8.
233
RA2_0423; Van Ee Aff. ¶15, RA1_0517.
234
RA1_0021, 0039, 0054, 0057.

58
 Newberger’s testimony on the cause of death – that Christopher died of recently

inflicted head trauma that produced a fatal brain hemorrhage and such massive swelling that

the brain was literally crushed within the skull cavity 235– was equally troubling. Not only was

it based on a profusion of distortions and outright fabrications of “findings” that Weiner did

not make, but it had been definitively ruled out as the cause of death: 236

● He falsely claimed that the post-mortem examination of injuries around the brain
revealed a “huge amount of bleeding” and a “great deal of brain swelling.” 237

● Even more alarmingly, he falsely claimed that Exhibit 31 – the only two images of
the brain and skull fracture – depicted bleeding and injury over and within the
brain substance and showed the brain was crushed within the skull. 238

● In reality, Weiner found “no evidence of increased intracranial pressure,” he found

that the brain weight was normal, 239and all that Exhibit 31 depicts is a collection
of blood lying over the brain, not a bleeding, damaged brain. 240

● Additionally, Dr. Schoene – the neuropathologist who examined Christopher’s

brain in greater detail – concluded that the brain showed only “mild swelling” and
no evidence whatsoever of herniation, which is what occurs with the type of
sudden increase in intracranial pressure posited by Newberger. 241

Newberger went on to erroneously claim that the injuries to Christopher’s head and

skull were so severe that, upon impact, it was highly doubtful that he could have had any

seizure activity, because he would have quickly become comatose and died shortly

thereafter. 242 He also erroneously claimed that the impact injuries to Christopher’s head

235
Tr. 2/101-3, 62.
236
Ophoven Aff. ¶6, RA1_0453; Squier Aff. ¶20(d), RA1_0560-2.
237
Tr. 2/61.
238
Tr. 2/101-2.
239
RA2_0378.
240
Tr. 2/101-3. Although the transcript indicates he is discussing Ex. 32, from context it is evident he is
referring to Ex. 31); Squier Aff. ¶20(d), RA1_0560-0562 (explaining why Newberger’s testimony is
unsupported.)
241
RA2_0378, 0523.
242
Tr. 2/105, 107, 110. As Dr. Ophoven explains, this is completely wrong: not only is there no evidence that
Christopher’s brain was severely damaged, but even if it had been, there is “no scientific support for the
proposition that severe brain damage inhibits seizures.” Ophoven Aff. ¶16(h), RA1_0472-3. On the contrary,
both subdural bleeding (like the subdural hematoma observed at autopsy) and severe electrolyte disturbances

59
required “the application of force comparable to what you would get if you were to fall from

a second-story window onto concrete.” 243 He went on to opine that the bruises to

Christopher’s arms, coupled with the fracture and bruising to the back of his head, were

indicative of someone grabbing him by the arms and repeatedly slamming his head onto a

hard, flat surface. 244 As with every other aspect of his testimony, this unsupported and

inflammatory testimony went entirely unchallenged; the instant motion is the first time this

court has been presented with any critique at all of Newberger’s testimony. 245

3. By the time Dr. Weiner took the stand on Day Three, the jury had already received
extensive, inaccurate, and outright fabricated information about his autopsy
procedure and opinions about Christopher’s injuries.

Like Dr. Newberger, Weiner opined that the vast majority of Christopher’s injuries

occurred at or about the time of death. 246 He told the jury that he arrived at this opinion by

(such as the critically elevated electrolyte levels detected at the hospital) are well-recognized causes of seizures.
Id. See also Elsamadicy, et al., Post-traumatic seizures following pediatric traumatic brain injury, 203 Clin
Neurol Neurosurg (2021) (finding that subdural hemorrhage, subarachnoid hemorrhage, and extradural
hemorrhage are all independently associated with increased risk of developing post traumatic seizures).
243
Tr. 2/89-90. As Dr. Van Ee explains, it is now widely understood “biomechanical science indicates that the
skull fracture reported for Christopher could occur from the impact force generated by a fall as low as 3-5 feet
onto a hard residential floor as could occur in a domestic environment.” Van Ee Aff. ¶19, RA1_0518. This post-
trial scientific development contradicts both Newberger’s testimony on this point as well as Weiner’s
corresponding testimony that the skull fracture would have required a “massive application of force,” Tr. 2/88,
which he estimated as equivalent to a ten foot fall. PCH 18.
244
Tr. 2/72. As Dr. Ophoven has observed, the actual condition of Christopher’s scalp as observed at autopsy is
not consistent with what she would expect to see if there had been “significant and multiple impacts onto a hard
surface, because in that event she would expect to see damage to the surface skin and soft tissues, lacerations,
abrasions, and swellings, none of which was present. Ophoven Supp. Aff. ¶4(d), RA1_0500.
245
While Harwood did attempt to challenge Newberger’s testimony about the “two story fall onto concrete”
with an affidavit from biomechanical engineer Dr. Chris Van Ee, that evidence was not developed until after
Harwood had already lost the 2012 motion for new trial in the trial court, thus it was never considered by the
trial judge who denied that motion. Not only that, but his own expert in the trial court, Dr. Michael Laposata,
erroneously stated in his affidavit that there are no studies which establish the amount of force needed to cause
a skull fracture, and that anyone who says they can determine the amount of force is not relying on evidence
based medicine, which was completely wrong. Laposata Aff. ¶9, RA1_0270. See MT Prange, et al., Mechanical
Properties and Anthropometry of the Human Infant Head, 48 Stapp Car Crash Journal 1-21 (2008); Van Ee, et al.,
Child ATD Reconstruction of a Fatal Pediatric Fall, ASME International Mechanical Engineering Congress &
Exposition (2009).
246
Tr. 3/216-7.

60
viewing samples of bruising under a microscope. 247 Using this process, he concluded that

only four of Christopher’s bruises were older injuries, 248 while the vast majority occurred “at

or about the time of his death.” 249 Although Dr. Sussman had alerted trial counsel that

Weiner apparently failed to consider the child’s medical history and “wrongfully assigned all

or most of the injuries to be at or about the time of death,” counsel did not pursue this issue

in his cross-examination. 250

With respect to cause of death, Weiner testified that Christopher died from multiple

blunt force trauma injuries to the head, although he did not explain precisely how the trauma

caused death. 251 Referencing two autopsy photographs that were taken before and after he

shaved Christopher’s head, 252 he opined that there were at least eight separate impact points

to the head and scalp, any one (or a combination) of which could have caused the skull

fracture. 253 The jury learned that, in Weiner’s opinion, it was not possible to say for sure that

the fracture was caused by one specific blow to the head, and in fact the fracture could have

been caused by a blow or blows to an entirely different part of the head. 254 However, trial

247
Tr. 3/231-2.
248
The four injuries Weiner identified as older were: (1) a bruise on the mid-forehead; (2) a bruise on the right
thigh; (3) a bruise on the right shin; and (4) a child-sized bite mark on the cheek. Tr. 3/232-4, 240.
249
Tr. 3/233-4, 237. Weiner did not sample tissues from all of the bruises that he observed, or even a majority of
them, yet he still claimed that the “vast majority” of Christopher’s bruises happened at or about the time of
death. For example, he did not sample the bite mark, yet he claimed that he felt it was older. Tr. 3/217. He also
failed to stain the tissue samples with iron, which is used to microscopically detect cellular level markers
associated with healing. Ophoven Aff. ¶14(f), RA1_0462; Ophoven Supp. Aff. ¶2(a), RA1_0496.
250
Sussman Aff. ¶20(b), RA1_0584. It is also evident that, although trial counsel considered having Sussman
independently review the tissue samples collected during the autopsy, neuropathology, and surgical pathology
examinations, this ultimately did not happen. Sussman Aff. ¶11, RA1_0580.
251
Tr. 3/235-6.
252
Tr. 3/218-20.
253
Tr. 3/222, 227. As discussed in greater detail infra at 111-113, both Ophoven and Sussman agree that the
data collected by Weiner does not support this conclusion, and the most that can actually be said is that there
was at least one impact to the head. Ophoven Aff. ¶17(c)(iii), RA1_0475; Sussman Aff. ¶19, RA1_0583. Van Ee
also found that the single linear skull fracture identified at autopsy is consistent with a single impact. Van Ee Aff.
¶19, RA1_0518.
254
Tr. 3/229.

61
counsel did not highlight this or any other distinction between his testimony and that of

Newberger in his closing argument.

Like Newberger, Weiner also opined that the blow or blows that fractured

Christopher’s skull required a “massive application of force.” 255 He falsely told the jury that

the fracture itself was located in the “thickest part of the skull,” 256 and that a fracture of that

magnitude “would have definitely rendered him unconscious instantly” 257 and possibly

caused him to die within minutes. He testified that once Christopher’s skull was fractured, his

central nervous system simply “stopped functioning.” 258 As with Newberger, neither side

questioned Weiner about the presence or absence of swelling in the brain. Beyond these

observations, Weiner gave virtually no testimony at all about the condition of Christopher’s

brain. As a result, the jury never learned that Weiner found no evidence whatsoever of brain

swelling or increased pressure within the skull, and indeed that he did not find any

discernible evidence at all of damage to the brain itself. The jury also had no way of knowing

that Newberger grossly mischaracterized the condition of Christopher’s brain.

Moreover, as Ophoven and Squier explain, when Weiner’s autopsy findings (including

the pertinent negative findings detailed above), are considered in conjunction with his

testimony (that the blows that caused the skull fracture would have “definitely” rendered the

child instantly unconscious and possibly dead within minutes), it is evident that he was

assuming the amount of force required to fracture Christopher’s skull was so great that it

necessarily produced invisible microscopic injury (diffuse axonal injury) that neither he nor

255
Tr. 3/224. Weiner did not specify what he meant by massive, but had previously testified at the probable
cause hearing that he estimated the force to be equivalent to a fall of at least ten feet. PCH 18.
256
Tr. 3/228. As noted infra at 111-3, this is not in fact the case.
257
Tr. 3/226-7.
258
Tr. 3/235-6.

62
Schoene actually observed. 259 But the jury had no way of knowing this, nor did they have any

way of understanding that Newberger’s and King’s characterization of what was depicted in

Exhibits 31 and 32 was patently false. 260 Most importantly, the jury never learned that the

only way that a subdural hematoma can cause death (as Newberger claimed) is if it causes a

massive increase in intracranial pressure, which did not happen in this case. 261

On cross-examination, Weiner acknowledged that, although the St. Anne’s Hospital

records were “available” to him, he did not review Arcuri’s report and was not even aware

that Arcuri had ordered port mortem X-rays. 262 It is also evident that he did not consider

Christopher’s labs, which showed severe electrolyte abnormalities, nor did he account for

Christopher’s altered behavior in the days prior to death, the observation that his lips had

been dry, cracked and bloody for days, or Arcuri’s notation that he looked and felt for “frank”

evidence of swelling or hematoma on the back of the scalp but found none.

Trial counsel did develop certain of these points on cross-examination of Weiner,

most notably, his total ignorance of Arcuri’s narrative or other information contained in the

St. Anne’s medical records. 263 However, counsel’s pre-trial consultation with Dr. Sussman

gave him no reason to focus on the lab results, let alone to appreciate their significance to the

constellation of other factors indicating that Christopher was already exhibiting symptoms of

an older head trauma. 264 As a result, counsel had no reason to believe that cross-examination

259
Ophoven Aff. ¶9, RA1_0454-6; Squier Aff. ¶11(d), RA1_0552. In fact, the jury had no knowledge of Schoene’s
involvement in the case, or indeed of the fact that any neuropathologist had ever examined the brain.
260
See discussion supra at 57. Significantly, Weiner was shown only 4 photographs during his testimony, in
contrast with King (45 photographs) and Newberger (at least 15 photographs).
261
Sussman Aff. ¶18(d), RA1_0583.
262
Tr. 3/238. Significantly, when counsel secured a copy of the complete OCME file in 2016 with a release from
Christopher Affonso Sr., the records did not contain any of Christopher’s pediatric or hospital records, lending
yet further support for the inference that Weiner never bothered to obtain or review these records.
263
Tr. 3/238-240.
264
Veary Aff. ¶12, RA1_0594.

63
of Weiner on these points would have accomplished something meaningful for the defense,

and he did not pursue them. And indeed, this is the central explanation for why there was no

follow up or explication of many aspects of the evidence highlighted in the instant motion:

where the cause of death was erroneously assumed to be an acute head trauma, the

significance of the many contradictions between Weiner’s and Newberger’s testimony was

ignored because it did not shed light on which adult assaulted Christopher in the basement.

4. Having ostensibly established that someone violently assaulted and killed

Christopher within minutes of his arrival at the fire station, the prosecutor turned
to Sneed as the cornerstone of her argument that Peixoto was the only person
with the motive and opportunity to commit these acts.

The Commonwealth’s second critical objective at trial was to establish that only one

person – Brian Peixoto – could possibly have assaulted and killed Christopher. In the

prosecutor’s opening statement, she made clear that Sneed’s testimony was essential to this

goal, previewing that Sneed would tell the jury that Brian was alone with Christopher in the

moments right before he died. 265 In her examination of Sneed, the prosecutor began by

eliciting certain foundational “facts” about her relationship with Peixoto and the days leading

up to her son’s collapse:

● At the time of Christopher’s death, Sneed, Tarissa and Christopher were

essentially living with Peixoto in his basement apartment. 266

● Around ten days prior to his death, while at Sneed’s mother’s house, Sneed saw
Christopher fall while jumping down the last two steps of a staircase, bumping the
front of his head. When she took him to the hospital a day or more later, it was
discovered that he had a fractured clavicle. 267

265
Tr. 1/168.
266
Tr. 3/30.
267
Tr. 3/40-3. Van Ee specifically notes that this explanation – ”a fall ending with a single impact to the center of
Christopher’s forehead – does not adequately explain how Christopher fractured his clavicle bone.” Van Ee
Aff.¶11, RA1_0516.

64
 ● In the months of December and January, Peixoto sometimes cared for Tarissa or
Christopher while Sneed attended school, and in general it appeared to her that
Peixoto had a normal relationship with Christopher. Peixoto was not present at
the time of the fall. 268

● A few days prior to his collapse, Christopher was acting wobbly and stumbling, as
if drunk, purportedly prompting her to call the pediatrician’s office. Sneed claimed
that she spoke with a nurse over the weekend, and that the nurse told her he was
probably just off balance from the collarbone injury and directed her to call back
in a couple of days to make an appointment if symptoms did not subside. 269

As she had done from the beginning of her interactions with police and medical

personnel, Sneed minimized her knowledge of Christopher’s prior injuries, portraying

herself as a caring and attentive mother. 270 When cross-examined about her inculpatory

interactions with daycare providers on the Thursday before Christopher’s death, Sneed

outright denied that they had questioned her about any injuries other than the clavicle

fracture and a single forehead bruise. 271 On this point, the daycare providers who testified

contradicted Sneed, confirming that they had indeed questioned her about visible bruising

on Christopher’s face, forehead, ear, cheek, back and legs, and that when they did so, she

attributed all of them to the same stairway fall that caused his clavicle fracture. 272 Trial

268
Tr. 3/28-9, 39.
269
Tr. 3/49-50. As noted infra, Christopher’s pediatrician, Dr. Jean Leimert, has submitted an affidavit in
support of the instant motion in which she disputes the veracity of Sneed’s claims.
270
The prosecutor built on this theme by presenting, among other witnesses, Christopher’s biological father,
Christopher Affonso Sr., who testified that Sneed “wasn’t abusive to the children at all,” that he had “never seen
her strike them,” and never even seen her lose her temper with Christopher. Tr. 3/278-80. He also testified that
the only time he saw Sneed interact with Christopher was when he dropped the children off or picked them up
from weekly overnight visits. Tr. 3/277. However, we now know, from the probate court records, that – at the
same time he was testifying at trial – Affonso Sr. was directly challenging her fitness as a mother and seeking
sole custody of Tarissa. We also know that on the night that Christopher died, DSS took emergency custody of
Tarissa, then filed a care and protection petition in the juvenile court. By the time of Peixoto’s trial, the juvenile
court order stemming from the care and protection proceeding, which granted temporary custody of Tarissa to
Affonso Sr, had been in place for at least six months, and that order, significantly restricted Sneed’s access to
Tarissa, permitting only one hour of supervised visitation per week, and requiring that all phone calls with
Tarissa be monitored. RA2_0544-7; 0549.
271
Tr. 3/100.
272
Tr. 2/265. As noted infra, the hospital records from Christopher’s treatment for the clavicle fracture plainly
do not support these claims by Sneed: not only does her trial account of the fall not adequately explain how he

65
counsel also questioned Sneed about her state of mind when she first spoke with the police,

seeking to develop the inference that she had changed her story out of fear that she herself

might be charged with her son’s death. 273 Yet when pressed about that issue, Sneed falsely

denied that she ever thought that she was a suspect. 274

With respect to her knowledge of Christopher’s condition on the day he died, Sneed

claimed that when she left for school that morning, the only bruises that she knew about

were one on the center of his forehead (from the fall ten days earlier), one on his back, one

on his ear (from Tarissa biting him), and “like fingerprint bruises” on his arms, which she

thought might have occurred one day earlier when Peixoto picked him up off the floor. 275 She

insisted that the bite mark was on Christopher’s ear, not his cheek, and denied ever having

seen an injury on his cheek. 276 She emphasized, as she had in her post-autopsy police

interview and at the probable cause hearing, that in the weeks just prior to Christopher’s

death, Peixoto had become increasingly angry at Christopher because he kept wetting his

pants, 277 including on the morning that he died. 278

Sneed also took pains to suggest that it was Peixoto’s fault, not hers, that Christopher

missed his pediatrician appointment on the morning that he died. She told the jury that

fractured his clavicle, but the hospital did not see any of the bruises that she claimed occurred at the same time
as that fall.
273
Tr. 3/138-9.
274
Id. In point of fact, as the prosecutor knew, Sneed had retained a lawyer prior to testifying at the probable
cause hearing., and in a letter to the prosecutor dated 2/6/96, that lawyer wrote, “Mario Lewis of the Westport
Police indicated to [Sneed] that he believed she beat her child along [with] Mr. Peixoto” and conveyed that “the
indication of her being a possible target of the continuing investigation warrants my direction [to her] to
remain silent at this time.” RA1_0813. However, trial counsel did not confront Sneed with the content of this
letter, thus the jury never learned that Sneed had taken affirmative steps to protect herself after learning she
herself might be at target of the police investigation, nor did they learn of her possible motivation to deflect
police attention from herself to Peixoto. RA1_0814-17.
275
Tr. 3/46-7, 157-8.
276
Tr. 3/99.
277
Tr. 3/33-4.
278
Tr. 3/48-9.

66
Christopher seemed “wobbly” and was stumbling a lot at breakfast, as he had earlier in the

weekend. 279 She acknowledged that when Christopher was discharged from St. Anne’s

Hospital following his treatment for the clavicle fracture, his discharge instructions included

a list of symptoms to watch out for, but claimed she could not recall if seizures and vomiting

were among the listed symptoms. 280 For the very first time, Sneed acknowledged that

Christopher had missed a follow up appointment with his pediatrician that had been

scheduled for the morning of the day he died. Yet rather than take responsibility for failing to

take him to his follow-up appointment, she falsely claimed that it was Peixoto’s fault that

Christopher didn’t go, because it was scheduled at a time when she would be in school. 281 As

noted in Dr. Leimert’s post-conviction affidavit, Christopher’s pediatric records reveal that

the appointment was for 8:40 a.m., when Sneed was still home at Peixoto’s apartment, rather

than at 10:00 a.m., as Sneed claimed at trial. 282 However, the jury did not hear from Leimert,

nor were Christopher’s pediatric records admitted into evidence, thus the jury never learned

this important impeachment evidence.

Perhaps the most dramatic aspect of Sneed’s testimony, however, was her brand-new

rendering of the events immediately prior to Christopher’s collapse. In all of the prior

statements she had ever made, Sneed had always maintained that when Tarissa first called

279
Tr. 3/49-50.
280
Tr. 3/94.
281
Tr. 3/51-2, 96-7. Sneed’s testimony on this point was internally inconsistent. She testified that when they left
the house that morning, the plan had been to drop Christopher off at daycare, but that plan changed when
Sneed noticed that he was so tired that he kept falling asleep in her lap on the way. She claimed that, at that
point, Peixoto agreed to watch him while Sneed was at school, and he said that he would bring Christpoher to
the appointment if he had time, but he never did. Tr. 3/50-2. It should also be noted that when Sneed testified at
the probable cause hearing, she described Christopher’s lethargic morning car ride, but she said nothing about
his pediatric appointment. At that hearing, she testified that when they noticed Christopher’s condition in the
car, Peixoto said “that he was going to bring him back home and lay him down” because he was tired. PCH 91.
282
Leimert Aff. ¶6, RA1_0368-9. Although the Commonwealth secured the pediatric records via a release signed
by Sneed very shortly after Christopher’s death, and presumably provided them to trial counsel, neither side
confronted Sneed with the conflicting information about the appointment time.

67
out to say that something was wrong, both she and Peixoto were upstairs and Peixoto was

using the bathroom. 283 As noted supra, the precise timing of when she responded to Tarissa’s

call changed dramatically over time, as did her description of the banging noises she heard

after Tarissa’s call and of where she was when she heard the noise. 284 However, she never

wavered in her position that she and Peixoto were both upstairs when Tarissa first called

out, and that it was Tarissa’s call that prompted Peixoto to go downstairs. If true, this

supported the exculpatory inference that there was already something wrong with

Christopher before Peixoto ever went downstairs, which was critical to the theory of defense

that Peixoto was not the only one with access and opportunity to commit the crime. At trial,

however, Sneed changed her story about this detail too, sowing doubt about her credibility

and thus undermining the prosecutor’s central proof that Peixoto was alone with

Christopher:

On direct, Sneed testified she went upstairs for a cigarette; not even five minutes later,

Peixoto came upstairs, entered the bathroom for a few seconds, then returned downstairs

without saying a word to Sneed. Shortly after that, Tarissa called, “Mommy.” In this brand

new version, not only was Peixoto already downstairs when Tarissa first called out, but he

was only in the bathroom for seconds, eliminating any possibility that Sneed could have gone

downstairs and committed the “crime” herself. 285

On cross, Sneed falsely denied that this was “different from anything [she had] ever

said before about this case,” and she denied or claimed a lack of memory of every prior

283
See infra at 169-76.
284
See supra at 26-9.
285
Tr. 3/88.

68
inconsistent statement on this point. 286 Sneed then testified that she had given only two

accounts to police, explaining that “[a]t first, when they first interviewed me, I didn't tell

them everything I knew. Then when they told me what had happened to my son, and I seen

pictures of it… I told them what I knew.” 287 She did not explain why she initially withheld

information from police, nor was any explanation apparent from the rest of her testimony.

She insisted that she did not lie to the police, denied that the police told her that her story

didn’t make sense, and denied that they said anything to cause her to believe that she was

under suspicion. Despite having been confronted with numerous prior inconsistent

statements, most of which were documented in the report and the transcript that was shown

to her, Sneed continued to maintain that her account on direct – that Pexoto went downstairs

before Tarissa called out – was not different from any prior statements. 288

On redirect, although the prosecutor knew or should have known that Sneed’s claim

that Peixoto went downstairs before Tarissa called out was indeed a brand new claim, and

that Sneed made multiple statements to police, she failed to take any steps to correct the

false impression created by Sneed’s testimony on cross. Instead, the prosecutor questioned

Sneed in a manner that reinforced this false impression. She began by establishing that she

herself participated in the probable cause hearing, but “another attorney, not Mr. Veary,”

attended the hearing on Peixoto’s behalf, thereby suggesting that her portrayal of what

occurred at the hearing was more likely to be accurate than Veary’s. 289 She then invited

Sneed to assess her own credibility, asking, “what was your testimony on February 21st of

286
In particular, she claimed a lack of memory of her probable cause hearing testimony, where she conceded
having made the statements attributed to her in Sgt. Butler’s report, and the final account she gave to Sgt. Butler
on 1/24, which was the basis for the indictment. Tr. 3/135-8, PCH 132-142.
287
Tr. 3/162.
288
Tr. 3/168.
289
Tr. 3/180-1.

69
1996 with regard to what happened on January 22nd, 1996?” 290 Although Sneed had just

insisted on cross that she could not recall her prior testimony, she now claimed that it was

“the same as it is today.” 291 The prosecutor then sought to establish that not only was Sneed’s

trial testimony the same as her probable cause hearing testimony, which was false, but that

both versions were the same as the final account she gave to police when she decided to

“come clean” and tell the truth, which was also false:

Q. “Now, as of your second interview with Sgt. Butler on the 24th, it's at that time
that you've indicated that you told them what you knew; is that right?
A. Yes.
Q. Is that what you testified to at the preliminary hearing?
A. Yes. 292

The impression that the prosecutor created in this exchange – that Sneed “came clean” to

police and then said the exact same thing at the probable cause hearing and again at trial –

was unquestionably false, as the prosecutor knew or should have known. 293 The prosecutor

next invited Sneed to “describe what the differences were” between what she told police on

January 22 and what she told them on the 24th, sidestepping Sneed’s claim that she could not

remember anything she said on Jan 22. In response, Sneed falsely claimed that the only

differences were that she “didn’t tell them that Brian was downstairs alone with Christopher”

when she heard the banging noises and she “didn’t tell them how many” banging noises she

heard. 294 Sneed also went on to add another brand new claim, that Peixoto was downstairs

290
Tr. 3/181.
291
Id.
292
Tr. 3/184.
293
Tr. 3/183-4. Perhaps the clearest evidence that the prosecutor appreciated the falsity of Sneed’s testimony
was the fact that it conflicted with what the prosecutor herself had predicted (in her opening statement) that
Sneed would say about this point. Tr. 1/166-8.
294
Tr. 3/185-6. Sgt. Butler’s report of Sneed’s first police station interview indicates that on 1/22, Sneed
reported hearing “a loud banging that sounded like the television had fallen off the stand.” RA2_0026. Sgt.
Butler’s report of her second police station interview indicates that on 1/24, Sneed initially did not mention

70
alone for “7-10 minutes.” 295 This new claim directly contradicted her probable cause hearing

testimony that Peixoto was downstairs alone for “about 3 or 4 minutes, and her final account

to police that he was downstairs for “possibly 3 minutes.” 296 The prosecutor then actively

participated in Sneed’s deception by asking, “Why, when you were initially spoken to at the

hospital and by the state police on the 22nd, didn't you tell them?” creating the false

impression that Sneed had told the police that Peixoto was alone with Christopher for 7 to 10

minutes when she spoke to police on the 24th. 297

On re-cross, trial counsel had an even larger mountain to climb. Not only had the

prosecutor just allowed Sneed’s false testimony on cross exam to stand uncorrected, but she

had elicited a brand new false claim by Sneed about the critical issue of how long Peixoto was

alone in the basement with Christopher. His examination began as follows:

Q. Miss Sneed, are you saying to us today that you testified the same today as you
did back at this preliminary hearing?
A. Yes.
Q. Miss Sneed, you told us today, didn't you, that Brian went out of the bathroom
and went downstairs while you remained upstairs, that he was downstairs with
Christopher for what you now say, what, seven to ten minutes, and then Tarissa
called?
A. Yes. 298

When counsel correctly characterized Sneed’s testimony on this point as “exactly the

opposite” of her testimony at the earlier hearing, this drew an objection. At the bench, the

prosecutor continued to obstruct counsel’s efforts to expose the falsity of Sneed’s testimony,

hearing any banging sounds, then she reported hearing “2 loud bangs", and ultimately reported hearing “a few
bangs, about 5.” RA2_0034.
295
Tr. 3/186.
296
Id.; Sgt. Butler’s report of Sneed’s 1/24 interview reads as follows: “She stated that Peixoto went to the
basement in response to Tarissa's call. She estimated that she remained upstairs for possibly 3 minutes before
going to the basement.” RA2 -0034.
297
Tr. 3/186.
298
Tr. 3/187-8.

71
accusing him of “mischaracterizing the probable cause testimony” and suggesting that the

entire transcript be admitted so the jury could “determine for themselves whether or not it's

directly opposite. 299 When the objection was overruled, and counsel was able to confront

Sneed with her prior testimony on this point, she finally conceded that she had testified at

the earlier hearing that Peixoto was upstairs when Tarissa called out, and that he went

downstairs in response to the call. She also admitted that Peixoto had in fact been upstairs

when Tarissa called out, and she testified that“[w]hen Brian came out of the bathroom, he

was headed back downstairs. I think Tarissa did call for me while he was on his way down

the stairs, and he said, I got it, and went down the stairs.” 300 However, she continued to insist

that Peixoto was downstairs alone with Christopher for 7 to 10 minutes before Sneed went

downstairs herself.

Finally, on re-redirect, while holding up a transcript of the probable cause hearing, the

prosecutor got Sneed to agree that she specifically remembered testifying that Brian was on

his way downstairs when Tarissa called out, and that Brian was “downstairs for quite some

time,” and for “several minutes,” before Sneed went downstairs herself. She then asked, “Mr.

Veary didn’t point that out to you,” implying that his impeachment on her prior testimony

about the length of time was misleading. Yet in point of fact, at that prior hearing, Sneed

testified that Peixoto “was upstairs after the bathroom until my daughter called for me, and

then when my daughter called for me, he said he would go downstairs and he went

downstairs.” When asked a nearly identical question at that earlier proceeding, “How long a

period of time was the defendant downstairs alone with Christopher before you came

299
Tr. 3/189.
300
Tr. 3/193; PCH 101.

72
downstairs?” Sneed responded, “about three or four minutes.”

5. Reacting to trial counsel’s cross-examination of Sneed, the prosecutor called

Sergeant Kevin Butler and Detective Michael Roussel to rehabilitate its case.

The Commonwealth’s final two witnesses were Sgt. Kevin Butler and Det. Michael

Roussel. It was immediately evident that the prosecutor’s purpose in calling Butler was to

blunt the damage to its case resulting from counsel’s cross-examination of Sneed and to

explain why this purportedly loving and caring mother would have repeatedly lied to the

police about the circumstances surrounding her son’s murder. What was less evident, until

her redirect of Butler, was that she also intended to use both Butler and Roussel to

independently establish a brand new fact: that Peixoto expressly “admitted” to being alone

with Christopher immediately prior to his death. 301 In doing so, Butler effectively eviscerated

Peixoto’s only defense, leaving him no choice but to testify on his own behalf.

At the outset of his testimony, Butler explained how, in the interim between Sneed’s

first and second police station interviews, the autopsy revealed that the child had a skull

fracture and died of blunt head trauma that occurred “just prior to the moment when the

child went unconscious.” 302 When Sneed initially persisted in claiming that she and Peixoto

responded to the basement together, Butler testified that he confronted her with polaroid

photographs taken at the autopsy. 303 Sneed “really lost it” when she saw photographs of the

301
Significantly, this was the first time that the Commonwealth had ever claimed that Peixoto actually admitted
to police that he was the last person alone with Christopher before he collapsed. Tr. 4/82.
302
Tr. 4/15. As laid out more fully above, even this framing of the changes in Sneed’s statements was
misleading, because in point of fact Sneed had already begun to change her story when she first went in to the
station on the night that Christopher died, and every new incremental change she made put the blame more
fully on Peixoto.
303
Not only did Butler confront Sneed with the photographs, but he told her that her prior accounts of two
bangs “didn’t explain what those photographs were saying.” Tr. 4/71. However, when asked by Veary what
words he used to tell Ami that he didn’t believe her accounts, Butler pled a poor memory. Id.

73
top and back of Christopher’s head, 304 then told police that “what she had said prior to that

point was not quite exactly the truth.” 305 This testimony – elicited through a series of leading

questions 306 – introduced the counterfactual theory that Sneed “came clean” after viewing

the autopsy photographs and then told the same story ever since, which as laid out supra

could not be farther from the truth. Butler also described his interactions with Peixoto during

the search of his basement apartment, in particular highlighting that when he asked Peixoto

if he had ever seen Sneed discipline Christopher for wetting his pants, Peixoto told him that it

made him “bullshit” when Christopher would wet his pants. 307 But on direct, Butler did not

mention anything about Peixoto’s police station interview.

On cross, counsel established that, in all her prior statements to police, the one thing

that Sneed was “always clear” and consistent about was that Peixoto was upstairs in the

bathroom when Tarissa called out to say that Christopher was throwing up. 308 He also

established that Sneed had changed her story on numerous other points, including who

bathed Christopher on the night before he died. 309 Additionally, he got Butler to agree that, in

the course of questioning Sneed on January 24, he conveyed to her that her story about

hearing “two bangs” as she was traveling down the stairs did not make sense because it did

not explain the injuries depicted in the autopsy photos. 310 However, he insisted he did not

remember the exact words he used to convey this point to Sneed. 311

304
Tr. 4/25.
305
Tr. 4/42.
306
The prosecutor’s re-direct examination of Butler was so reliant on leading questions that she was
reprimanded by the judge, who did not even wait for counsel to object before interjecting, “Not in that form,
please. The form is a leading question. I’m sure you understand by now.” Tr. 4/85. However, as with any leading
question that is posed but not answered, the information desired had already been imparted to the witness.
307
Tr. 4/42-51.
308
Tr. 4/73-4.
309
Tr. 4/76-7.
310
Tr. 4/68, 71-2.
311
Tr. 4/71.

74
 On redirect, the prosecutor through a series of leading questions supplied Butler with

the very information he had just insisted he did not remember. In doing so, she introduced

new and highly damning evidence related to Peixoto’s interaction with the police that had no

reasonable factual basis in the police reports or any prior testimony:

Q: So you knew when you started talking with Miss Sneed that the defendant had told
the other officers312 that he was alone with Christopher –
A: Yes, I did. I was aware of that, yes.
Q: — immediately prior to his death?
A: That’s right.

*****
Q: Did you ever tell Miss Sneed that her story didn’t add up because you thought that
she killed him?
A: No.
Q: Why did you tell Miss Sneed about why her story didn’t add up?
A: I told her the story did not add up because of what I had been told by the doctors
concerning the timing of the injury and onset of symptoms, and that Brian had
told, during his interrogation, that he was alone with the child just prior to the
child becoming unconscious. 313

The prosecutor doubled down on this new “proof” that Peixoto was alone with Christopher

immediately before he died with her final witness, Det. Michael Roussel, who was present for

the station house questioning of Peixoto and had testified at the suppression hearing. At trial,

Roussel insisted that Peixoto not only told police that he was still in bed downstairs when

Tarissa called out to say that Christopher was throwing up, 314 but also told them that Sneed

was still upstairs when he went into the living room to check on Christopher, still upstairs

when he slapped and shook Christopher to try to get him out of his state, and still upstairs

312
On recross, counsel established that the “the other officer” he was referring to was Det. King, who wrote the
only existing report documenting Peixoto’s station house interview. Tr. 4/87.
313
Tr. 4/82-4.
314
Tr. 4/108-9. Significantly, this version of events – that Peixoto was still lying on his bed when Tarissa first
called out and he never went upstairs at all – is incompatible with all of Sneed’s pretrial statements to police and
others, her sworn probable cause hearing testimony, and the final version that Sneed testified to at trial, namely
that Brian left the basement and came upstairs to use the bathroom, that he was still upstairs when Tarissa first
called out, and that he went downstairs in response to the call. Tr. 3/202.

75
when he first saw Christopher banging his head. 315 The prosecutor’s underscored this point

in their final exchange, asking, “Can you tell the members of the jury what the defendant told

you about who was alone with this child immediately prior to his death,” to which Roussel

responded, “He was.” 316

On cross-examination, trial counsel confronted Roussel with the fact that he did not

take any notes during Peixoto’s interview or otherwise memorialize the statements he was

now attributing to Peixoto in that interview. 317 Counsel also established that, according to

the only report that documented Peixoto’s statement – which was written by Trooper King –

Peixoto said that “he and Ami arrived just about the same time.” 318 However, Veary was not

present for the suppression hearing and no transcript had been prepared, thus he lacked the

ability to confront Roussel with his prior testimony on this point. 319 Specifically, at the

suppression hearing, Roussell had testified that Brian told police that when Ami went

upstairs and had a cigarette, “[he] heard noises. Tarissa was complaining that

[Christopher]…was sick. Brian went to see what was wrong with him, and I believe Ami came

down at that time. And from that point, they determined that there was something seriously

wrong with Christopher. He cleared vomit from the child’s mouth and then began to do CPR

on the child himself.” 320 The prosecutor capitalized on counsel’s lack of knowledge of

315
Tr. 4/109-110.
316
Tr. 4/113.
317
Tr. 4/117-8.
318
Tr. 4/123. As noted elsewhere, the separately filed Motion for Post-Conviction Discovery specifically seeks
copies of the prosecutor’s notes from her pre-trial meetings with her witnesses, including Butler, Roussel, King,
Sneed, Affonso Sr. and Newberger. It also seeks a copy of Roussel’s notes, which were shown to counsel for the
first time at trial but not copied for his file.
319
Veary’s lack of access to the transcript of Roussel’s testimony at the suppression hearing also prevented him
from cross examining him about Roussel’s helpful observation, at that hearing, that the very first thing Peixoto
blurted out before being Mirandized at the station was not that it really pissed him off when Christopher wet his
pants, but, “I can’t believe this, I can’t believe that Christopher is dead.” SH1/21.
320
SH1/34-5.

76
Roussel’s prior inconsistent testimony in her closing, where she argued: “Mr. Veary's right.

On one little line, and I don't have the report, and I'll just defer to your memories, but in one

little line, in that huge, big report, yes, there is one little line where the defendant says Ami

and I came down together or arrived together or something like that. But what's the problem

with picking one little line out? Well, because then you don't see the whole statement in

context.” 321

Thus, through Butler and Roussel, the prosecutor succeeded in transforming Peixoto’s

statement that he was lying in bed before Tarissa called out into an “admission” that he was

alone with Christopher during the precise window of time when both sides agreed that

someone violently assaulted and killed him. In doing so, she directly contradicted what she

told the jury in her opening that they would hear about this issue, which was that: “[t]he

defendant, through Trooper Michael King and Detective Michael Roussel, will tell you what

happened on that day,“ and that “what he told Trooper King and Mike Roussel practically

mirrors what Miss Sneed said,” which is “that Ami Sneed was upstairs when he went

downstairs to see what was happening with Christopher Affonso. 322

6. Peixoto’s only recourse was to take the stand to testify on his own behalf and
dispute this brand-new spin on what he said to the police.

Peixoto’s only possible recourse, at the conclusion of the Commonwealth’s case, was

to take the stand and testify in his own defense, so that he could dispute the prosecutor’s

brand-new spin on what he told the police. And that is exactly what happened. After calling

321
Tr. 5/47.
322
Tr. 1/171-2.

77
Corey Oliveira to complete his impeachment of Sneed and establish what Sneed said to the

police in her presence at the hospital, 323 Peixoto took the stand.

On direct examination, as pertains to the instant motion, he testified as follows:

● Christopher’s history of prior injuries. Christopher had several injuries prior to

Jan. 22, including a broken collarbone and bruises on his head, arms, back and
legs. 324 He was not present when Christopher broke his collarbone, nor was he
responsible for any of the bruises. 325 He never struck or hit Christopher, and he
never slammed Christopher’s head against something that would have caused the
injuries depicted in the trial exhibit photographs. 326

● Sneed’s history of neglect. Sneed was an overwhelmed parent whose apartment

lacked heat or electricity, who lacked appropriate boundaries to discipline her
children, and who feared losing custody of her children. 327 During his first visit to
her home, he discovered that she had wrapped an extension cord around the
doorknob of a door to keep Christopher in the room so he would go to sleep. 328
When he removed the cord and opened the door, he saw that the room was in
“complete shambles.” 329 Over time, Sneed spent more and more evenings at his
apartment with her kids. He got along well with the children, but his relationship
with Sneed grew rocky due to her continued lack of parental discipline. He tried to
introduce her to “timeouts” as a form of discipline, 330 but remained troubled by
the fact that she was not teaching Christopher to use the toilet. 331 More than once,
including on the morning he died, Sneed expressed the concern that her mother
and Christopher Affonso Sr. were colluding to take custody of her children. 332

● Interactions with Christopher on the morning that he died. When he woke

Christopher up on the morning that he died, he discovered that Christopher had
wet the bed. Peixoto brought him down the hall to tell Sneed what he had done,
and Sneed pulled Christopher into the bathroom to clean him up. 333 When Sneed
later brought Christopher downstairs, Peixoto noticed that he was wobbly and
stumbling; he urged Sneed to call the pediatrician, which she agreed to do if he

323
Tr. 4/145-6. Oliveira was the only source of Sneed’s statements to police at the hospital, because the police
did not write a report about that interview.
324
Tr. 4/172.
325
Tr. 4/172-3.
326
Tr. 4/228.
327
Tr. 4/171. As noted infra, many of these points were actually corroborated by information contained in the
probate court records, but the jury never learned that this was so.
328
Tr. 4/160.
329
Tr. 4/161.
330
Tr. 4/160-5.
331
Tr. 4/166.
332
Tr. 4/170-1. As noted infra, this point could have been corroborated by the testimony of Sneed’s classmates,
but neither side called them to testify at trial.
333
Tr. 4/177-9.

78
 wasn’t better by the afternoon. 334 She also indicated that she couldn’t take him
back to daycare in his present condition, so Peixoto agreed to watch him for the
day. 335 He estimated that they left the house at around 9:00 a.m. to drop off
Tarissa and Sneed. 336

● Chronology of events immediately prior to collapse. Peixoto’s rendering of the

moments immediately prior to Christopher’s collapse was entirely aligned with
the one fact about which Sneed had been consistent up until trial, namely, that
they were both still upstairs when Tarissa first called out to say that something
was wrong with Christopher. He explained that when Sneed went upstairs to
smoke a cigarette, he followed shortly thereafter to use the first-floor bathroom. 337
As he was coming out of the bathroom, Tarissa called out to say that Christopher
was throwing up. 338 He and Sneed both proceeded down the stairs, and when they
arrived in the basement – at approximately the same time – they discovered
Christopher was convulsing on the floor, his arms flapping, his head “jumping up
and down” and vomit coming out of the side of his mouth. 339 Peixoto tried to
revive unconscious Christopher, then rushed him to the fire station. 340

● Interactions with police. Peixoto acknowledged that he did not specifically

mention being in the bathroom when Tarissa first called out, but he explained that
the reason he didn’t mention this was because he did not think using the bathroom
was relevant to their investigation. 341 When the police informed him that they
were investigating Christopher’s “suspicious” death, he told them that it made him
angry that Christopher seemed not to be toilet trained, but that he would never
want him dead. 342 He accompanied the police on a search of his basement
apartment. 343 During the search – which did not reveal any evidence whatsoever
of a violent assault 344 – he reiterated that he sometimes got upset when

334
Tr. 4/178.
335
Id.
336
Tr. 4/181-2. On cross-examination, Peixoto maintained that he was completely unaware that Christopher
had an appointment that morning, let alone that Sneed had asked him to take Christopher to the doctor. Tr.
4/255-6.
337
Tr. 4/200-1.
338
Tr. 4/203.
339
Tr. 4/204. Although the Commonwealth sought to portray this testimony as an attempt to explain away new
injuries on Christopher’s head, in point of fact Peixoto never told the police that he saw any new injuries on
Christopher, and he specifically testified that when he found Christopher convulsing on the floor, he did not see
anything unusual about his face or head. Tr. 4/210.
340
Tr. 4/205-8.
341
Tr. 4/223-4. As noted supra, this was entirely understandable from his standpoint, because when Peixoto
was interrogated by the police, the autopsy had not yet happened and no one was focused on determining his
and Sneed’s precise whereabouts in the moments immediately prior to Christopher’s collapse. It is also entirely
consistent with, and corroborated by, the new diagnosis and explanation for Christopher’s cause of death as
presented herein.
342
Tr. 4/291.
343
Tr. 4/95, 97.
344
Tr. 4/48.

79
 Christopher had toileting accidents. 345 However, at no point did he say that
Christopher had another toilet accident that night, nor did he say that Christopher
did anything to make him mad that night.

On cross-examination, the prosecutor aggressively sought to recast Peixoto’s

testimony as a self-serving disavowal of his earlier “admission” to being “alone” with

Christopher in the precise window of time when the fatal assault “must” have occurred. She

began by pointedly asking, “So then, Mr. Peixoto, who did harm Christopher?” to which he

responded, “I don’t know.” 346 In a later line of questioning, the prosecutor sought to establish

that if Peixoto had been upstairs in the bathroom for ten minutes immediately before Tarissa

called out – as he testified on direct examination – he naturally would have told that to the

police, and his failure to do so rendered his trial account not credible. 347 The prosecutor then

tried to establish that he must have known the significance of the moments immediately

before Christopher’s collapse (even though the police themselves were not focused on the

significance of these moments, and were not even certain that a crime had been committed,

when they interviewed Peixoto):

Q: Because both you and Ami were the only two who had custody of
Christopher just immediately before his death; right?

A: Well, I knew that Ami was concerned with people seeing marks on him, so I
immediately thought somebody must have seen all those bruises on
Christopher, and they're looking for whoever did those bruises. 348

More than once, she pressed Peixoto to explain why he did not tell the police that he went

upstairs to use the bathroom; more than once, Peixoto explained that he didn’t think it was

relevant to explain Christopher’s death. 349 She also asked him to comment on Lisa Morton’s

345
Tr. 4/50.
346
Tr. 4/230.
347
Tr. 4/230-1.
348
Tr. 4/285.
349
Tr. 4/231-2.

80
testimony about this topic, falsely implying through her question that he told Morton he was

downstairs when Tarissa called out, when Morton had repeatedly testified to the opposite. 350

The prosecutor also used her cross-examination of Peixoto to shape, and ultimately

distort, the evidence about what Peixoto said regarding Christopher’s toilet training. She

repeatedly and misleadingly insisted – contrary to Roussel’s prior sworn testimony at the

suppression hearing and the trial judge’s factual findings in his decision on the motion to

suppress – that the very first thing that came into his mind when he was talking to the

officers was that “it pissed me off when he peed in his pants.” When Peixoto tried to explain

that “the first thing that came to my mind was that I couldn’t believe that he was gone” –

which is exactly what Roussel testified to at the suppression hearing – she misleadingly

asked him, “But that’s not what you said to the police, is it?” 351

Finally, as the Supreme Judicial Court already found, the prosecutor committed

constitutional error by improperly commenting on Peixoto’s right to silence:

Q: And one of the first things you said to the detectives interviewing you is, I don't
know if I should talk to you or not; right?

350
Morton’s testimony was as follows: “Q: Did you have a conversation with him at that point about what had
happened to Christopher? A: I had asked him, and he said that he had heard that it was Tarissa who said
Christopher was sick. So he went downstairs, and he said he found him thrashing and banging his head on the
floor, and he was throwing up. Q: Do you recall where the defendant indicated to you Miss Sneed was when he
came downstairs and found Christopher banging his head and thrashing? A: They were upstairs. Q: So I get this
clear, the defendant said that both of them were upstairs? A: Yes. And Tarissa came up to say that Christopher
was sick. And I guess Brian went down there first." Tr. 2/161-2. This is consistent with Peixoto’s testimony.
351
Tr. 4/292-3. The exact exchange was as follows:” Q: So you’re down to the station, you’re going to talk to
these officers about Christopher’s death, and the first thing that comes into your mind is, it pissed me off when
he peed in his pants, but I didn’t want him dead.” A: The first thing that came to my mind was that I couldn’t
believe that he was gone, and I wasn’t going to be able to see him anymore. And the times that I got upset with
him for something as silly as peed pants, that it shouldn’t have been so important as just having the chance to
play with CAJ and spend time with Christopher…Q: But that’s not what you said to the police, is it? What you
said to the police was, he really pissed me off when he peed his pants, but I didn’t want him dead.” A: I don’t
even think I said that in response to anybody…” Q: …in answer to the question the first thing and the only thing
you said to the police about that particular subject was, he really pissed me off when he peed his pants, but I
didn’t want him dead, would that be a yes? A: “I didn’t say that to the police. I believe I said that mumbling to
myself.”

81
 A: Well, after they read me my rights, part of the rights says that I have the right not
to talk without an attorney present, and I thought that maybe I should have an
attorney present.

Q: But at least at that point you understood the seriousness of the situation; right?

A: Yeah, Christopher was gone.

Q: Christopher was dead, they were looking for whoever did it, and they were talking
to you?

A: I didn’t necessarily know that they were looking for somebody who did it. All I
know is Christopher was dead, and I didn't know how he died. I still was thinking
that he choked to death or had a seizure. 352

In her closing argument, the prosecutor powerfully and prejudicially tied these

strands of false and misleading evidence together. After unequivocally stating that, "it's clear

that he said, I was downstairs, we had a fight, Ami went upstairs to smoke a cigarette. The

next thing I knew or the next thing I heard prompted me to go into that room," the

prosecutor argued, "[s]o the defendant told you through Trooper King and through Detective

Roussel and through Lisa Morton that he was alone with that child." 353 She went on to argue,

“[n]ow, he gets on the stand and says, I never said that. I was never alone with that child. And

then he now adds in this big ten-minute gap that I was in the bathroom.” 354 With respect to

Peixoto’s statements about toilet training, she used them in conjunction with the now-

discredited evidence of Christopher’s genital injuries to argue that:

352
Tr. 4/285-6. It bears noting that this is not the only case in which the trial prosecutor was found to have
engaged in flagrant Doyle-type errors. See, e.g., Commonwealth v. Fowler, 431 Mass. 30 (2000) (prosecutor
committed multiple Doyle-type errors, first by soliciting improper testimony from the two officers who
questioned the defendant, and then by improperly using the defendant’s statement of his intention to remain
silent in her closing argument, but concluding that the errors did not create a substantial risk of a miscarriage of
justice); Commonwealth v. Brum, 438 Mass. 103, 120-121 (2002) (finding that prosecutor made three separate
improper references to defendant’s post-Miranda silence in her closing argument, but declining to grant relief
on this basis). Commonwealth v. Brum, 441 Mass. 199 (2004) (in separate co-defendant trial, prosecutor
through a series of leading questions of police officer, improperly solicited evidence that the defendant refused
to speak to police after receiving Miranda warnings).
353
Tr. 5/48-9.
354
Tr. 5/49.

82
 He left his mark on that baby like the Z from Zorro. Who is obsessed with this
child's genitals? Who's angry at that part of that child's body? His mother? No.
Who's the person who's going to twist and pinch and squeeze those genitals?
Mr. "I get bullshit when he pees his pants.'' Mr. "It pisses me off when he pees
his pants." That's who's angry at that boy's genitals. That's who twisted his
penis. That's who pinched his penis. That's who pulled it. That man. 355

E. In a case that was unquestionably tried as a credibility contest between Sneed

and Peixoto, the jury never learned about available impeachment evidence that
could have powerfully corroborated Peixoto’s version of events.

1. Countervailing evidence about whether Christopher even had a toilet accident.

As the instant motion reveals, there was no reliable evidence that Christopher had a

toilet accident at all that night, let alone that Peixoto discovered one and reacted in anger.

Although Peixoto openly acknowledged that it made him angry when Christopher wet his

pants, and both Peixoto and Sneed described how they discovered that very morning that

Christopher had wet his bed, neither of them ever claimed that Christopher had another

accident that afternoon or evening. And while the prosecutor elicited from several witnesses

that Christopher had or may have had a soiled diaper or pull-up when he arrived at the

emergency room 356 or at the medical examiner’s office, 357 EMT Legendre specifically recalls

that he opened and examined Christopher’s diaper in the ambulance en route to the hospital

due to his concern that the child appeared “extremely dehydrated.” He is confident that, if

asked about the diaper at the time of trial, he “would have made clear that the diaper

Christopher was wearing when he arrived at the fire department was clean and dry,” with

“no evidence of urination or defecation.” 358 This information directly undermined the

prosecutor’s motive theory, yet the jury never learned about Legendre’s exculpatory

355
Tr. 5/54-5.
356
Tr. 2/43.
357
Tr. 3/240.
358
Legendre Aff. ¶10, RA1_0365.

83
observations because neither side ever questioned him about it – and even the defense

accepted as fact that Christopher “messed his pants,” as counsel put it in his closing. 359

2. Favorable evidence of the circumstances of Peixoto leaving the hospital.

In her closing argument, the prosecutor painted a picture of Peixoto as a guilty,

desperate man who fled the hospital to avoid being blamed:

He bolts from the hospital... He goes over to Lisa and Steve Morton’s house to
hide out…He goes there to hide out, to lay low and find out exactly what
happened…He bolts out of that hospital and hides because he’s concerned
about his own neck.” 360

What the prosecutor knew full well – but the jury never learned – was that the hospital

chaplain, Deacon Michael Murray, told police that he heard Sneed ask Peixoto to take Tarissa

to her sister’s house and stay there with her, and also heard Mario DaCunha tell Peixoto to

leave before the biological father arrived. 361 And Murray was not the only one source of this

contradictory account of Peixoto’s departure. Steve Morton also told police that Sneed

approached him at the hospital on the night of January 22 and said “that when they got to the

hospital, she asked [Peixoto] to take Tarissa to a friend’s house.” 362 Yet neither side elicited

this information from him, thus the jury never learned this valuable, exculpatory evidence.

3. Sneed’s false claims about the doctor’s office.

Another central pillar of the prosecutor’s case was her portrayal of Sneed as a loving

mother with no reason to fear that she herself might be blamed for Christopher’s death.

However, there was important countervailing evidence that was known to the defense prior

to trial, including Sneed’s failure to bring Christopher to his scheduled appointment with the

359
Tr. 5/30.
360
Tr. 5/55-6.
361
RA2_0047.
362
RA2_0039.

84
pediatrician’s office and her failure to disclose to either medical personnel or the police that

Christopher missed this appointment. 363 At trial, as in prior statements to police, Sneed

asserted that she called her pediatrician’s office over the weekend after noticing that

Christopher was stumbling and wobbly. 364 She claimed that she described these symptoms

to a nurse, and that the nurse suggested that he was probably “off balance” due to his clavicle

fracture and that she should merely monitor him “for a couple of days” 365 and bring him in if

symptoms persisted. She also claimed that Christopher was scheduled to be seen at 10:00

a.m. on the morning that he died, but that she didn’t bring him in because the appointment

conflicted with her class schedule. This testimony went unchallenged by the defense, apart

from Peixoto’s assertion that he did not know about the appointment. 366

In 2023, Peixoto’s present legal team reached out to Dr. Jean Leimert, Christopher’s

primary care doctor in the pediatric practice, and provided her with a copy of his medical

chart. Leimert confirmed that, while the chart includes a notation indicating that the office

provided the prosecutor with a copy of Christopher’s medical chart on January 26, 1996, she

has no memory of the prosecutor or defense counsel ever speaking with her about Sneed’s

testimony summarizing her interactions with the practice. 367 She explained that, had they

done so, they would have learned that:

● No one in her practice would have advised Sneed to merely “monitor” her son,
because the symptoms Sneed claimed that she reported are “commonly associated
with complications following a head injury.” As a result, any member of her staff

363
As discussed in greater detail supra, two other important countervailing data points were the fact that
daycare providers had directly questioned Sneed about Christopher’s bruises on the Thursday before he died
and the fact that, early on in the investigation, one of the lead investigators (Mario Lewis) directly accused
Sneed of causing Christopher’s injuries.
364
Tr. 3/49-52; RA2_0028.
365
Tr. 3/96.
366
Tr. 4/181.
367
Leimert Aff. ¶11-12, RA1_0370.

85
 who took such a call would have taken Sneed’s call very seriously and directed her
“to take her child immediately to the emergency room.” 368

● If such a call had been placed by Sneed, both the fact of her call and the substance
of the symptoms she described would have been logged in Christopher’s pediatric
record, yet no such call appears in the record.

● According to Christopher’s pediatric record, Christopher’s appointment on

January 22 was scheduled for 8:40 a.m., not 10:00 a.m as Sneed claimed at trial.

Naturally, without a signed release from Sneed or Christopher’s father, Leimert would not

have been at liberty to speak with counsel. The prosecution, by contrast, could certainly have

spoken with Leimert, as Sneed signed a release less than 24 hours after Christopher’s death.

However, counsel apparently did possess a copy of the pediatric chart, 369 hence certain facets

of this evidence could have been presented by him at the trial.

Moreover, had trial counsel carefully examined the pediatric chart and hospital

records, he would have realized the true picture of Christopher’s physical health and history

prior to his tragic death. Quite contrary to the narrative the Commonwealth painted of

Christopher – as a healthy, flourishing, child well-cared for by his mother – his pediatric

records show a history of missed doctors appointments and hospital visits. In his three short

years of life, Sneed failed on five separate occasions to bring Christopher to scheduled

doctors’ appointments. 370 Christopher also had multiple emergency room visits, including

one for choking on an open safety pin 371 and another resulting in a three-day hospital

admission. 372 He tested positive for lead poisoning in September of 1995, 373 and at his three-

368
Id.
369
Leimert Aff. ¶11, RA1_0370; RA2_0350.
370
RA2_0340-5.
371
RA2_0284.
372
RA2_0300.
373
RA2_0368.

86
and-a-half month visit, Dr. Leimert provided Sneed with a written warning about the dangers

of exposure to secondhand smoke. 374 Together, these records paint a picture of a child with

chronic health emergencies whose caretaker repeatedly failed to bring him to follow-up

appointments, just as she did on the day of Christopher’s death.

4. Corroboration that Sneed’s fear of losing custody preceded Christopher’s collapse

and death.

As noted above, one of the central pillars of the Commonwealth’s case was the

contention that Christopher Affonso Jr. was healthy and well-cared for by his mother until

she met Peixoto. In addition to its presentation of this theme through the direct examination

of Sneed herself, the Commonwealth called Rhonda Franco, Sneed’s former neighbor, 375

Christopher’s aunt, Carol Frazier, 376 and Christopher’s biological father, Christopher Affonso

Sr., 377 who collectively testified that Sneed was a loving mother who never lost her temper,

abused, or even disciplined her son. In several respects, the prosecutor’s questions implied

facts that she knew or should have known were false pertaining to Tarissa’s custody status.

Although the jury learned that there was an ongoing probate court matter involving custody

of Tarissa, the prosecutor’s questioning invited the jury to infer that the custody dispute did

not arise until after Christopher’s death. 378 She also, through her questions, created the

impression that DSS took custody of Tarissa for only one night, as a “precautionary measure”

due to uncertainty about who had injured Christopher, when in fact a care and protection

petition had been filed in the Juvenile Court at least six months before Christopher Affonso

374
RA2_0284.
375
Tr. 3/5-17.
376
Tr. 3/292-300.
377
Tr. 3/272-290.
378
Tr. 3/179.

87
Sr. filed for custody in the probate court. 379 The prosecutor capitalized on this misleading

presentation of the evidence in her closing argument, where she highlighted Affonso Sr.’s

choice to portray Sneed in a positive light and observed that “it would be very easy” for

Affonso Sr. to testify that Sneed was a bad mother, given the pending probate court battle

over custody of Tarissa. 380

Peixoto’s testimony provided the lone counterbalance to this portrayal of the custody

dispute and its bearing on Sneed’s parenting. In his telling of events, Sneed was already

concerned about losing custody of her children well before the day of Christopher’s collapse

and death. 381 He explained that, on the morning of January 22, Sneed said that she could not

bring Christopher to daycare because she feared that she might lose custody of him given his

bruises and strange behavior. 382 However, Peixoto was aggressively cross-examined on this

topic, leaving the jury with the impression that his characterization was self-serving and

without corroboration.

Regrettably, while it appears that there were several witnesses who could have

corroborated Peixoto’s account of Sneed’s custody concerns, none of them were called to

testify at trial. For example, one of Sneed’s nursing school classmates – Rosemary Coutu –

told police that Sneed had discussed Christopher’s broken collar bone with her, as well as

expressing concern that Affonso Sr. wanted custody of Christopher because he suspected

abuse. 383 Another classmate, Jodi Fiola, told police that on the Friday before Christopher’s

death, Sneed told her Affonso wanted to talk to her about the kids when she got out of school.

379
RA2_0543.
380
Tr. 5/45.
381
Tr. 4/170-71.
382
Id.
383
RA2_0052.

88
Sneed also told her that Affonso Sr. was concerned about his son falling down the stairs and

wanted to take custody of both children. 384 Finally, Mario DaCunha reported to police that

his girlfriend Michelle Gonsalves – who was Sneed’s best friend – relayed that Affonso Sr. had

been complaining about bruising on Christopher and had stated that if he saw any more

bruises he would take Christopher away from her. 385 However, none of these witnesses were

called by either side to testify at trial.

Moreover, in the course of investigating the instant motion, Peixoto’s present legal

team obtained a copy of the probate court records related to the dispute over Tarissa’s

custody. 386 In the affidavit that he filed in support of the motion seeking custody of Tarissa,

Affonso Sr. explicitly questioned the veracity of Sneed’s varying explanations for how

Christopher fractured his clavicle. 387 He noted that when he last saw Christopher for an

overnight on January 14, 1996, he considered filing a 51A report with the Department of

Social Services because of the discrepancies, but decided not to do so after Sneed “begged me

to believe that Christopher had fallen down the stairs at maternal grandmother’s home.” 388

Thus, even if Affonso Sr. had not actually initiated any custody proceedings prior to the day

that Christopher died, Sneed was already well aware of his concerns about her parenting.

Had trial counsel obtained these records, which he evidently did not, it is easy to imagine

384
RA2_0051.
385
RA2_0042.
386
A copy of the records, subject to a motion to impound, is in Volume II of the Record Appendix. RA2_0526-1.
387
RA2_0534. Indeed, according to records contained in the probate file, Sneed gave Affonso Sr. a completely
different explanation for the clavicle fracture than the one she gave to the police and testified to at the probable
cause hearing and trial. According to Affonso Sr.’s pretrial memorandum, filed in the probate court, “[i]nitially,
Ami told Christopher Sr. that Christopher Jr. stayed overnight at maternal grandmother’s home. Ami stated that
Christopher got up by himself in the middle of the night and fell down a flight of stairs. Without waking the
grandmother, the three-year-old got back into bed and went back to sleep with a broken clavicle… Christopher
Affonso Sr. seriously questioned whether a child would break his collarbone and go back to sleep without
crying. However, when he questioned the grandmother, she endorsed Ami Sneed’s story.” RA2_0528. See also
Lynn Martin Aff., RA2_0542.
388
RA2_0534.

89
how he could have used them to develop new lines of cross-examination of both Sneed and

Affonso Sr. and to bolster Peixoto’s credibility. In a case that ultimately turned entirely on a

credibility contest between Peixoto and Sneed, because the medical evidence was not

questioned, these omissions proved deeply troubling.

II. THE DIRECT APPEAL AND PRIOR POST-CONVICTION PROCEEDINGS FAILED TO

REVEAL THE FUNDAMENTAL FLAWS IN THE COMMONWEALTH’S CASE

A. Mr. Peixoto’s lawyer on direct appeal failed to conduct an independent

investigation of the medical and autopsy issues in the case, even after Mr.
Peixoto specifically requested that he do so. As a result, he took no post-trial
steps to evaluate Dr. Newberger’s testimony or investigate the validity of the
Commonwealth’s other medical evidence.

Peixoto was represented on direct appeal by Attorney Dana Curhan, who was retained

for a flat fee by Peixoto’s father. 389 Tragically, Curhan took no steps at all to independently

evaluate the reliability of the Commonwealth’s medical evidence or investigate Newberger’s

role in the case, even after Peixoto explicitly requested that he do so. As Curhan has now

acknowledged in his affidavit:

● In his view, there was no way of getting around the fact that all the doctors agreed
that Christopher’s injuries were massive and caused by an application of
tremendous blunt force. Like Veary, Curhan also perceived no scientific basis to
challenge the timeline of when the injuries occurred. 390

● Peixoto specifically asked him to investigate Newberger’s role in the case, as well
as whether Attorney Veary had been ineffective in failing to explore the
discrepancies between Newberger and Weiner’s trial testimony. 391

● Aside from reading the trial transcripts and available medical and autopsy records
and reviewing the photographs that were admitted into evidence, Curhan took no
steps at all to investigate the medical issues. He did not consult with Dr. Sussman
or with another expert who could independently evaluate the medical records and
testimony. He made no copies of the police reports, medical records or autopsy

389
Curhan Aff. ¶2, RA1_0596.
390
Curhan Aff. ¶12, RA1_0598-9.
391
Curhan Aff. ¶13, RA1_0599.

90
 reports that he viewed in Veary’s file, because in his estimation, these documents
were not pertinent to the issues he intended to raise on appeal. For the same
reason, he did not copy any of the hospital and autopsy photographs that were
admitted into evidence at trial, although he viewed them at the courthouse. 392

● Curhan did not attempt to evaluate the reliability of Newberger’s trial testimony,
even though it was Newberger who supplied the Commonwealth’s central
evidence on “extreme atrocity or cruelty.” As he now acknowledges in his affidavit,
he never even spoke with Dr. Sussman, let alone provided him with a copy of
Newberger’s testimony to review.

● Curhan now acknowledges that “if he had known” that an expert reviewing
Newberger’s testimony would find the types of disparities between Newberger’s
testimony and that of Weiner that have been identified by Dr. Janice Ophoven in
the instant litigation, he would certainly have pursued this line of investigation.
Likewise, “if he had known” that an expert reviewing Newberger’s testimony
would find that he had affirmatively mischaracterized the medical evidence and
key findings in the ways that Dr. Ophoven now describes, he would have pursued
this line of investigation. He agrees that both areas of analysis would have
provided valuable information that could have been presented to the trial court in
a motion for new trial. 393

As Sussman’s post-conviction affidavit illustrates, a timely investigation could have

accomplished two critically important goals:

● First, Sussman could have explained that Newberger’s explanation for the child’s
cause of death – namely, “a massive rise in intracranial pressure caused by a large
subdural hematoma and brain swelling” – cannot occur instantaneously, as
Newberger claimed. 394

● Second, Sussman could have explained that, contrary to Newberger’s testimony,

“the subdural hematoma that was present in this case was not, and could not have
been, the immediate cause of the child’s death.” nor could his sudden collapse be
explained by a “massive increase in intracranial pressure, because (a) the amount
of blood that was present in his skull cavity (50ml) was not sufficient to cause fatal
brain stem compression and, (b) Weiner and Schoene found no evidence at all of
increased intracranial pressure. 395

392
Curhan Aff. ¶5, RA1_0597.
393
Curhan Aff. ¶¶¶19, 20, 21, RA1_0601.
394
Sussman Aff. ¶18(d), RA1_0583.
395
Sussman Aff. ¶21(a)-(d), RA1_0584-5.

91
Certain of the observations that Sussman makes in his affidavit reflect changes in his

understanding of the applicable science that likely would not have been available to

Curhan. 396 However, he also explicitly states that “[i]f I had been aware that Dr. Newberger

intended to testify that death was caused by increased intracranial pressure due to the

combined effect of the subdural hematoma and a ‘great deal’ of brain swelling, I would have

advised trial counsel that this is not correct.” 397 He further clarifies that he is confident that

Newberger’s pre-trial report “would not have put me on notice that Dr. Newberger had

determined that death was caused by increased intracranial pressure.” 398 Thus even if

Sussman had discussed the pre-trial report with trial counsel, “neither he nor I would have

had any reason to anticipate this line of trial testimony.” 399

Sussman’s affidavit also notes that, to the best of his memory, he “did not ever view

any of the tissue samples taken during the autopsy, neuropathology or surgical pathology

(ophthalmic) examinations,” 400 nor did he receive recuts of the microscopic slides collected.

He observes that “in any case where aging of injuries is an issue, a thorough and complete

examination includes an independent analysis of microscopic injury to tissue,” 401 which “can

reveal the presence/absence of certain blood products (such as hemosiderin) that reveal the

396
Specifically, Dr. Sussman notes that at the time of trial, it was his understanding that the type of skull fracture
that was present here would ordinarily require “great force” and is “usually an inflicted injury,” but post-trial
research has demonstrated that “skull base fractures can and do occur from accidental falls.” Sussman Aff. ¶17,
RA1_0582. He also acknowledges that, prior to reviewing a particular scientific study from 2016 that is
referenced by Dr. Ophoven, he was not aware that “a significant number of children who suffer isolated basilar
skull fractures – as well as children who suffer basilar skull fractures with other associated intracranial injury –
do not immediately lose consciousness and show a normal neurological examination on presentation.” Sussman
Aff. ¶23, RA1_0586-7.
397
Sussman Aff. ¶21(c), RA1_0585.
398
Id.
399
Id.
400
Sussman Aff. ¶11, RA1_0580.
401
Sussman Aff. ¶20, RA1_0583-4.

92
breakdown of red blood cells and can therefore help approximate the age of a bruise.” 402 He

notes that “trial counsel’s notes indicate that I advised him to more closely scrutinize

Weiner’s opinion regarding the aging of bruises, in light of reports by daycare providers and

others supporting the inference that a significant number of the bruises were older in

age.” 403 These observations – coupled with the post-conviction expert findings described in

further detail infra – make clear just how impactful further probing of the medical evidence

by Curhan could have been. 404

Curhan’s failure to investigate the medical evidence also prevented him from

uncovering valuable exculpatory information from Christopher’s pediatric chart. As

Leimert’s affidavit makes clear, Sneed’s testimony about her interactions with the

pediatrician was demonstrably false in several important ways. Where Curhan knew or

should have known that Sussman specifically asked trial counsel whether there had been a

follow up visit at the pediatrician’s office related to the diagnosis of the clavicle fracture, 405

he was on notice of the potential importance of the pediatric records. Yet he not only failed to

make use of them in his representation of Peixoto, but accepted it as truth that Sneed had

spoken with Christopher’s doctor over the weekend, who ostensibly “explained that the

[earlier shoulder] injury probably caused” Christopher’s wobbly behavior. 406

Curhan’s handling of the direct appeal was also deficient in several other ways,

including most notably his failure to adequately capitalize on the inconsistencies between

Sneed’s trial testimony and her prior statements to police and under oath at the probable

402
Id.
403
Sussman Aff. ¶20(b), RA1_0584.
404
It is evident that Dr. Sussman did not have a complete set of photographs, because many were not produced
until the middle of trial. Tr. 4/26-37.
405
Sussman Aff. ¶9, RA1_0579-80.
406
RA1_0090.

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cause hearing. In particular, he failed to highlight the significance of Sneed’s changed

testimony on whether Peixoto was upstairs or downstairs when Tarissa first called out, 407 as

well as her changed testimony on the timing of when Tarissa first called out to say that

Christopher was sick. 408 He also failed to correct several factual inaccuracies in the

Commonwealth’s recitation of Sneed’s testimony, declining to file a reply brief or to address

the points at oral argument. 409 Cumulatively, Curhan’s recitation of Sneed’s testimony

reflects an alarming failure to appreciate even the nuances that trial counsel had sought to

develop in his trial cross-examination, let alone to capitalize on the prosecutor’s overt

acknowledgment of Sneed’s credibility problems in her closing argument. 410

B. The lawyers who litigated Mr. Peixoto’s first two motions for new trial likewise
failed to independently investigate the medical issues or challenge Dr.
Newberger’s pivotal role in securing the conviction, even after Peixoto
specifically requested that they speak with Dr. Sussman.

Less than six months after Peixoto’s conviction was affirmed on appeal, he and his

family retained new counsel, Attorney Greg Schubert, to pursue his case in federal court.

From the outset, Peixoto remained focused on challenging the medical evidence that led to

his conviction. He reached out directly to Dr. Sussman, alerting him in writing that Schubert

would be contacting him; he also mailed a copy of that letter to Schubert, requesting that he

contact Sussman. 411 Recognizing that a further fact investigation would require resources

beyond his family’s means, he also sought to have Schubert appointed by CPCS to evaluate

407
RA1_0093, 0099.
408
RA1_0099.
409
For example, the Commonwealth misleadingly argued in its brief that, because Peixoto placed himself
downstairs alone in the basement, the jury could discount Sneed’s prior inconsistent statements as a misguided
attempt to cover for Peixoto, even though Sneed had consistently shifted the blame to Peixoto from her very
first stationhouse interview. RA1_0211.
410
Tr. 5/34-5.
411
Schubert Aff. ¶8, RA1_0606.

94
whether new factual evidence could be developed that would allow him to challenge his

conviction in state court. 412 Peixoto’s motion for appointment of counsel was approved by

the court, and Schubert was appointed by CPCS as screening counsel, with the assistance of

an attorney on the CPCS post-conviction panel, Jean Fielding.

Notwithstanding Peixoto’s focus on the medical evidence and his direct request that

Schubert speak with Sussman, Schubert and Fielding failed to take even the most minimal

steps to explore this facet of the case. As Schubert has now acknowledged in his post-

conviction affidavit, neither he nor Fielding reviewed any investigative reports, photographs,

pediatric records, hospital records, or records from the medical examiner’s office. 413 They

did not speak with trial counsel or with Sussman, nor did they take any other steps to

independently evaluate trial counsel’s strategic decision not to challenge the

Commonwealth’s medical evidence. Schubert’s only explanation for this failure is that he

held Sussman in such high regard (having consulted with him on several murder cases

involving child deaths) that he saw “no reason to question Attorney Veary’s reliance on Dr.

Sussman’s opinion” or to independently “question the validity of the medical evidence or to

conduct any further fact investigation.” 414

Schubert’s ostensible deference to trial counsel’s reliance on Dr. Sussman to justify his

own failure to investigate is undermined by Fielding’s screening memo to CPCS, in which she

states that “trial counsel’s strategy of trying to blame the mother for her child’s death was so

unsupported and so prejudicial that it amounted to ineffective assistance of counsel.” 415 It is

412
Schubert Aff. ¶2(c), RA1_0603.
413
Schubert Aff. ¶¶3(b) & (d), RA1_0604-5.
414
Schubert Aff. ¶7, RA1_0606.
415
Schubert Aff. ¶3(b), RA1_0604.

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further undermined by Schubert’s acknowledgment that, in light of Sussman’s recent critique

of several aspects of Newberger’s trial testimony, it would have been extremely helpful to

consult with Sussman and “could have made a tremendous difference in the outcome of the

case.” 416 While Schubert expressed “surprise” that “Attorney Veary did not ask Dr. Sussman

to sit in on the testimony of the Commonwealth’s experts” 417 – a request that he regularly

made in his own murder trial practice – he could readily have learned of this omission had he

spoken with either Veary or Sussman about the medical issues in the case. Likewise, while he

expressed “surprise” that Peixoto’s counsel on direct appeal “did not ask Dr. Sussman to

review the transcripts of the Commonwealth’s medical testimony as part of his

representation on direct appeal,” 418 this too was readily ascertainable at the time of his

involvement in the case. Yet rather than taking steps to objectively evaluate the wisdom of

appellate counsel’s choices on direct appeal, Schubert’s total neglect of the medical issues

only further compounded the harm.

To make matters worse, the motion that Schubert ultimately did pursue not only

lacked any factual support, but was filed without Peixoto’s knowledge, consent, or input. In

that motion, Schubert alleged, inter alia, that trial counsel was deficient in failing to

investigate a diminished capacity defense. 419 As he has now acknowledged, this strategy was

“admittedly a difficult avenue to pursue, given that Peixoto testified in his own defense at

416
Schubert Aff. ¶24, RA1_0610.
417
Schubert Aff. ¶25, RA1_0610.
418
Schubert Aff. ¶26, RA1_0610. Once again, Schubert could have learned of Curhan’s omission had he
communicated with Curhan in the course of his own representation of Peixoto.
419
The motion also alleged that trial counsel was ineffective in failing to present an expert on the effects of
Valium on Peixoto’s mental state during his police interrogation; failing to object to the admission of eight
separate recitations of Christopher’s injuries; eliciting harmful testimony on cross-examination of Newberger
about his opinion that it was highly unlikely that the child could have experienced seizures after receiving the
injuries he suffered; and failing to object to Butler’s repetition of what he characterized as prior consistent
statements by Sneed that unhelpfully corroborated her credibility.

96
trial, adamantly denied responsibility for the child’s death, and had no documented history of

mental illness that would support a lack of criminal responsibility defense.” 420 Not only was

the strategy doomed from the start, but he did not even discuss it with Peixoto before filing

the motion, let alone alert him that the “lead claim required him to recant his prior

statements to police and trial testimony and admit that he caused the child’s death.” When

the initial motion was denied without a hearing, due to the lack of any evidence to

substantiate the claims, Schubert strong-armed Peixoto into cooperating with a mental

health defense that he had never asked for or endorsed. As he put it, “[w]ithout mincing any

words, I made clear that talking to Dr. Ebert was Peixoto’s only option, and that he would die

in prison unless he cooperated with the mental health defense that we had already raised

and argued in the first motion.” 421

Beyond prejudicing Peixoto by forcing him to accept a doomed strategy that

positioned him as a perjurer, Schubert’s motion also had the effect of cementing an

erroneous and highly prejudicial view of the medical evidence. This was due in large part to

the trial judge’s heavy reliance on the misleading, unscientific, and demonstrably false

testimony of Newberger, which Schubert had not challenged. In particular, the trial judge

made the following observations about the state of the medical evidence, each of which

draws heavily or exclusively on Newberger and has now been shown to be false:

● That the jury “chose not to believe the defendant’s account, primarily because it
failed to explain the severity of Christopher’s crushing head injuries422 (which the
instant motion reveals did not exist) or the bruises on nearly every other part of
his body” 423(which the instant motion establishes were mostly older and in
various stages of healing).
420
Schubert Aff. ¶6, RA1_0606.
421
Schubert Aff. ¶14, RA1_0608.
422
RA1_0039. It further bears noting that, contrary to the trial judge’s characterization of the cause of death
testimony, Weiner and Newberger did not agree about the mechanism of death. See supra at 57-58.
423
RA1_0041.

97
 ● That the jury “determined that the defendant committed the killing with extreme
atrocity or cruelty” based on “inescapable physical and medical evidence of a
sustained, brutal and deadly beating of a child.” 424

● That “Dr. Newberger, in particular, described the massive amount of force needed
to inflict the crushing six-inch skull fracture.”

● That Newberger “pointed out that some of the injuries would have been
excruciatingly painful: the injuries to the testicles and scrotum; the injuries to the
shaft and head of the penis; the injuries to the mouth; and some of the face
injuries.”

Had Schubert obtained the underlying medical and autopsy records to compare to

Newberger’s testimony or provided these materials to Sussman for his review, he would

have learned that Sussman disagreed with several areas of Newberger’s trial testimony,

including his testimony that the cause of death as a massive crushing brain injury.

C. Although Mr. Peixoto’s 2012 new trial motion nominally sought to repudiate the
Commonwealth's medical evidence, it was doomed from the start, due to
counsel’s alarmingly deficient investigation and presentation.

In 2012, CPCS appointed Attorney Donald Harwood to evaluate whether there were

any new or different grounds for challenging Peixoto’s conviction. The initial focus of

Attorney Harwood’s work was whether Peixoto was deprived of his right to a public trial due

to the exclusion of the public from jury selection, an issue then regarded as on the cutting

edge of post-conviction practice. 425 However, Peixoto remained highly focused on the

medical issues in his case; within a short time after Harwood’s appointment, Peixoto alerted

him that his family had been in touch with Dr. Michael Laposata, a pathologist affiliated with

Vanderbilt University. 426 Harwood eventually spoke with Laposata and learned that, in his

424
Id.
425
Harwood Aff. ¶4, RA1_0612.
426
Harwood Aff. ¶5, RA1_0612.

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opinion, Christopher’s stairway fall some ten days prior to his death “provided the most

plausible explanation for his skull fracture, subdural hematoma, and subsequent

symptoms.” 427 Harwood believed that this opinion was highly exculpatory, insofar as it

provided “a completely different explanation of how the child died” and explained “the

child’s symptoms following the clavicle fracture, which the Commonwealth’s experts had

ignored entirely.” 428

Tragically, although Harwood was the first lawyer to accept Peixoto’s persistent and

urgent requests to revisit the medical evidence, his investigation and presentation of this

evidence were alarmingly deficient. Within only a few weeks after consulting with Laposata,

Harwood prepared and filed a motion for new trial. He took no independent steps, before

filing the motion, to verify whether Dr. Laposata had received and considered all of the

relevant records, photographs and other evidence that were potentially pertinent to his

opinion, or whether he had been provided with an accurate summary of the relevant facts. As

the instant motion reveals, it is painfully clear that this did not happen. Harwood also took no

independent steps, before filing the motion, to confirm whether Dr. Laposata possessed the

requisite qualifications and experience to opine about the cause of death. 429 As the instant

motion reveals, it is clear that he did not. 430 Lastly, Harwood took no independent steps,

before filing the motion, to consult with additional experts in adjacent or complementary

disciplines, either to verify Laposata’s findings or review the medical evidence and testimony

427
Harwood Aff. ¶10, RA1_0614-5.
428
Harwood Aff. ¶12, RA1_0615.
429
It appears that Harwood did not even understand Laposata’s field of expertise, as he repeatedly and
inaccurately referred to him as a forensic pathologist, which he is not.
430
Dr. Ophoven notes that while Dr. Laposata is a recognized clinical pathologist, he does not routinely perform
autopsies or examine live patients with brain injuries. She also notes that Laposata was provided with
inaccurate and incomplete information about the underlying case facts, lacking any of Christopher’s medical
records. Ophoven Aff. ¶26(a), RA1_0480-1.

99
from their own related disciplines. As the instant motion reveals, his failure to do so – and in

particular his failure to provide the pediatric neuropathologist with whom he eventually

consulted (Dr. Waney Squier) with a transcript of Newberger’s trial testimony –

unquestionably deprived Peixoto of powerful evidence in support of his request for post-

conviction relief.

Even more fundamentally, Harwood failed to recognize that the underlying science

that he was advancing in support of his medical theory had actually changed in the

intervening time since Peixoto’s trial. He alleged that trial counsel had been ineffective in

failing to present expert testimony to establish that short falls can cause fatal brain injury,

and that children with fatal brain injury can experience lucid intervals. 431 Yet Squier had

specifically noted in her affidavit that the majority of studies on these points post-dated

Peixoto’s trial. 432 Instead of framing the issue as one of newly developed science, since

neither of the key propositions he was advancing had been developed or accepted by experts

in the field at the time of Peixoto’s trial, Harwood chose to frame the issue as an ineffective

assistance of trial counsel claim. To make matters even worse, Harwood never spoke with

trial counsel before doing so, let alone secured an affidavit from him. 433

Harwood’s written presentation of the case was equally lacking. His motion, which

was filed without an accompanying memorandum of law, raised two issues: (a) that Peixoto

was deprived of his right to a public trial because members of the public were excluded from

the courtroom during jury selection; and (b) that Peixoto was denied his right to effective

431
RA1_0238-9.
432
RA1_0340.
433
The Commonwealth’s opposition capitalized on these deficiencies, pointing out that without an affidavit from
trial counsel or an explanation for the absence of an affidavit, the court could not assess whether his decision
not to call an expert was manifestly unreasonable. RA1_0178-81.

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assistance of counsel, who “failed to fully and adequately investigate Christopher Affonso Jr.’s

cause of death and whether it was attributable to a fall down the stairs ten (10) days before

the child’s death while in the mother’s care.” 434 With respect to the latter claim, Harwood’s

initial pleadings included only one affidavit (Dr. Laposata). 435 His recitation of the medical

evidence that led to Peixoto’s conviction consisted of a single sentence: “The Commonwealth

also presented testimony from the Commonwealth’s pathologist, James Weiner, and a child

abuse expert, Dr. Eli Newberger, that the cause of death was a six inch skull fracture, a severe

injury which both testified was the result of tremendous blunt force trauma that would have

immediately caused a coma and death very soon thereafter.” 436 This recitation not only

erroneously conflated the cause of death opinions of the Commonwealth’s experts, but failed

to address the many other areas of injury that were the focus of the Commonwealth’s case

against Peixoto at trial. Harwood’s discussion of Laposata’s opinion was equally troubling: it

consisted of a single, cursory paragraph asserting that “the child’s injuries are consistent

with his falling down a staircase” and that this fall “was associated with a fracture of his

clavicle and multiple fractures to his skull and bleeding inside the head.” 437

434
RA1_0237-8.
435
Harwood did eventually secure a second expert affidavit from a pediatric neuropathologist, Dr. Waney
Squier. Although Dr. Squier was eminently qualified to offer an opinion, her affidavit likewise suffered from
Harwood’s failure to provide her with a comprehensive set of medical and autopsy records or a copy of
Newberger’s trial testimony. Harwood also failed to provide her with a copy of Dr. Laposata’s affidavit, which
would have put her and Attorney Harwood on notice of several factual errors in Laposata’s assessment of the
medical evidence. Squier Aff. ¶9(j), RA1_0548. Moreover, the factual summary of the case provided to both
Squier and Laposata was inaccurate in several important respects, including they were both told that
Christopher fell down an entire flight of stairs during the incident when he fractured his clavicle, and that
witnesses had noticed he was stumbling and wobbly ever since that fall. Additionally, neither expert was told
that Sneed reportedly heard loud banging sounds while Peixoto was in the basement alone with Christopher.
These errors caused both experts to focus exclusively on that fall as the likely genesis of his fatal head injury,
completely unaware of a competing theory, all to Peixoto’s obvious detriment.
436
RA1_0232.
437
RA1_0238-9.

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 As the trial judge pointed out in his lengthy decision denying Peixoto’s motion

without an evidentiary hearing, Harwood’s motion was deficient in every possible respect.

Not only did he fail to secure an affidavit from trial counsel, but his experts relied on a

factually inaccurate summary of the stairway fall that Sneed claimed led to Christopher’s

clavicle fracture, and they ignored the many other areas of injury attributed to Peixoto at

trial. 438 In this last regard, the trial judge’s recitation of the medical evidence highlights the

magnitude of Harwood’s deficiencies in his understanding of the underlying factual record

and applicable science. From that recitation, it is clear that Harwood’s failure to address the

myriad of inaccuracies, misstatements of fact and scientifically invalid theories presented by

Newberger powerfully solidified the judge’s understandable, but mistaken, reliance on

Newberger’s explanation for what happened to Christopher, to Peixoto’s continued

detriment.

III. POST-CONVICTION ANALYSIS BY DRS. OPHOVEN, REIFSCHNEIDER, SQUIER, AND

VAN EE TURNS THE COMMONWEALTH’S MEDICAL EVIDENCE COMPLETELY ON ITS
HEAD, EXPOSES THE EXTENT TO WHICH NEWBERGER PROVIDED KNOWINGLY
FALSE EVIDENCE, AND REVEALS A COMPLETELY DIFFERENT PICTURE OF
CHRISTOPHER’S PHYSICAL CONDITION AS WELL AS THE TIMING AND CAUSE OF
HIS TRAGIC DEATH.

In 2015, shortly after the denial of Peixoto’s federal habeas petition, he secured the

assistance of new pro bono counsel, Attorney Jennifer Fitzgerald, who recognized that the

Harwood’s investigation and presentation of the complex medical and scientific issues in this

case were appallingly inadequate. As described in detail in Attorney Fitzgerald’s affidavit

filed herewith, the present new trial motion is the product of a painstaking, multi-year

process that entailed: (a) identifying and interviewing all witnesses with knowledge of

438
RA1_0064.

102
Christopher’s physical and medical condition prior to and on the day he died; (b) securing

copies of all investigative, medical and autopsy records and evidence; (c) conducting

multidisciplinary scientific research to understand the interrelated issues from the medical

and autopsy records that had previously gone unnoticed or ignored; (d) consulting with

clinical and forensic experts across a wide range of disciplines to review these materials and

– where appropriate – securing access to underlying medical data for their independent

analysis; and (e) interviewing Peixoto’s prior attorneys to assess the scope of what each

investigated and the basis for the litigation choices that they made. In furtherance of these

efforts, Peixoto’s present counsel filed motions to secure access to the trial exhibits and

biological evidence collected by the medical examiner and maintained by the Office of the

Chief Medical Examiner, as well as to obtain high quality, digital scans of the photographs

that were taken by state police at the hospital and during the autopsy procedure. The

Commonwealth and office of the OCME were cooperative with these efforts, enabling

Peixoto’s present legal team to develop a much fuller picture of the relevant medical and

autopsy data and findings that bear on the instant motion.

As laid out more fully in the Record Appendix filed herewith, Peixoto’s present legal

team eventually consulted with and secured affidavits from two highly qualified medical

experts who had never previously reviewed this case: pediatric forensic pathologist Dr.

Janice Ophoven and pediatric endocrinologist Dr. Kent Reifschneider. After independently

reviewing Christopher’s medical records and other relevant data, Ophoven and Reifschneider

each concluded that Christopher’s critically abnormal lab results – which were noted by

Arcuri in his medical report – reveal that at the time of his death, he was suffering from

extreme hypernatremic dehydration, a complication of a rare neuroendocrine disorder

103
known as Post Traumatic Diabetes Insipidus (PTDI) which went untreated. The significance

of this diagnosis cannot possibly be overstated: it definitively establishes that – whatever

happened to cause the impact to Christopher’s head that triggered this condition – it had to

have happened days earlier, and not within thirty minutes to an hour as the Commonwealth’s

experts alleged at trial.

Ophoven’s independent review of the death of Christopher Affonso Jr. also constitutes

the first ever comprehensive medico-legal analysis by any expert in this case. Unlike Weiner,

Newberger, or Sussman, she followed four steps that she explains are absolutely necessary to

– and ought to guide – any competent medico-legal investigation: 439 (1) comprehensive

evidence collection; (2) identification of all key findings that bear on the forensic analysis; (3)

development of the differential diagnosis; and (4) forensic determination of cause and

manner of death. These steps led Ophoven to be the first expert for either the

Commonwealth or the defense to expressly comment on, and likely the first to even consider,

the significance of Christopher’s lab results in developing a differential diagnosis. As

described herein, her review also revealed many glaring inadequacies in the medicolegal

investigation, as well as serious errors in the Commonwealth’s medical evidence at trial.

In addition to consulting with Ophoven and Reifschneider, undersigned counsel

secured new affidavits from two of the experts who submitted affidavits in support of

Peixoto’s prior legal challenge: pediatric neuropathologist Dr. Waney Squier, and

439
Ophoven Aff. ¶¶11-14, RA1_0457-67. While there are still no binding national standards or guidelines for
conducting death investigations, the National Association of Medical Examiners (NAME) and other
organizations have recognized the need for such standards, and starting in the late 1990s began making efforts
to establish them. It was during this time period that the Department of Justice first published a guide for crime
scene investigations and NAME published a set of minimum standards for conducting a medico-legal death
investigation. Technical Working Group on Crime Scene Investigation, Crime Scene Investigation: A Guide for
Law Enforcement, DOJ (2000).

104
biomechanical engineer Dr. Chris Van Ee. Squier – whose original affidavit was presented to

the trial court in support of Peixoto’s prior new trial motion – previously opined that

Christopher “was clearly not well prior to his collapse on January 22, 1996,” and that he

likely died as a result of his fall down the stairs ten days earlier, based on the description she

had received of that earlier traumatic impact. 440 Van Ee – whose original affidavit was

submitted in the federal court but never considered by the trial judge who denied the prior

new trial motion – agreed that Christopher’s earlier stair fall incident could have been an

important factor in causing the head injury. 441 However, undersigned counsel has since

determined that both experts received inaccurate and alarmingly incomplete information

about the relevant medical history, autopsy procedure, and trial evidence that led to

Peixoto’s conviction, and that their analysis as presented in the prior new trial motion was

seriously handicapped by these inaccuracies and omissions. Among many other deficiencies,

neither expert received copies of Christopher’s hospital records, and Squier did not even

receive a copy of Newberger’s trial testimony, which constituted the Commonwealth’s

principal trial evidence of the condition of Christopher’s brain. Both have now provided

supplemental affidavits that clarify, elaborate and significantly expand upon their prior

analysis, based on their review of the full set of available data, evidence and records. As laid

out more fully herein, their supplemental affidavits lend considerable strength to Ophoven’s

and Reifschneider’s differential diagnosis of PTDI, as well as Ophoven’s cause of death

440
Squier 2012 Aff. ¶10, RA1_0341.
441
Van Ee 2014 Aff. ¶9, RA1_0882. Van Ee’s prior affidavit also explained that – contrary to Newberger’s
hyperbolic testimony about the amount of force involved in Christopher’s head injuries, and contrary to
Weiner’s testimony that the skull fracture would have required a “massive application of force” – biomechanical
testing has demonstrated that falls of as little as 3-5 feet were sufficient to result in such skull and intracranial
trauma. Id.

105
analysis and her critique of the medicolegal investigation, analysis and testimony of Weiner

and Newberger.

Peixoto’s present legal team also conferred with Dr. Edward Sussman, 442 the forensic

pathologist hired by trial counsel to review the medico-legal investigation, and with EMT

Brian Legendre and Dr. John Arcuri, who both made first hand observations of

Christopher’s condition on the night he died. Finally, Peixoto’s team met with Dr. Jean

Leimert, Christopher’s pediatrician. All four provided affidavits in support of the instant

motion. As outlined infra, the post-conviction affidavits presented in the instant motion

cumulatively reveal a completely different explanation for what happened to Christopher,

one that directly contradicts the Commonwealth’s central assumptions about the timing and

mechanism of Christopher’s death. They reveal that the OCME’s death investigation – and in

particular the work of Drs. Weiner and Schoene – was woefully inadequate, with glaring

deficits in data collection and documentation as well as serious errors in the analysis of the

medical data and evidence. Lastly, they reveal that the Commonwealth’s star witness, Eli

Newberger, gave blatantly false and misleading testimony about Christopher’s injuries and

about the root cause of his collapse and death.

442
Dr. Sussman recently retired from practice as a forensic pathologist. Prior to retirement, he was board
certified by the American Board of Pathology in both anatomic and forensic pathology. Over the course of his
career, Sussman performed more than two thousand autopsies and he consulted as an expert witness in
criminal and civil matters. On the criminal side, he consulted with attorneys on behalf of both the prosecution
and defense, including public defenders and privately retained counsel. Sussman Aff. ¶¶1-2, RA1_0576.
Sussman’s credentials distinguish him from Weiner, who did not achieve board certification in either anatomic
or forensic pathology. The lack of standardized requirements for forensic pathologists has been cited in
numerous national studies of the field, including the 2009 NAS report, which recommended that board
certification in forensic pathology be a requirement for all medical examiners performing autopsies. Committee
on Identifying the Needs of the Forensic Sciences Community, Strengthening Forensic Science in the United
States: A Path Forward, National Research Council (2009).

106
 A. Drs. Ophoven, Squier and Reifschneider collectively provide a completely
different explanation for what happened to Christopher, one that accounts for
critical scientific and clinical data, including descriptions of his behavior in the
days prior to death, that was previously ignored by experts and that completely
undermines the Commonwealth’s theory about the timeline and cause of
Christopher’s tragic death.

The fundamental insight of the expert affidavits offered in support of the instant

motion is that although Christopher unquestionably received an impact to the head sufficient

to cause the skull fracture, there is no evidence that the impact that caused the fracture also

caused fatal, catastrophic injury to the brain itself. On the contrary, the evidence shows that

the impact which caused Christopher’s skull fracture injured him to the extent that he was

unable to produce the hormone that regulates sodium water balance, and because this

condition went untreated for days, he became profoundly dehydrated and died of

hypovolemic shock. 443 The degree of Christopher’s dehydration – revealed by previously

ignored lab results – makes clear that whatever impact triggered the onset of his PTDI, it

could not possibly have happened within thirty minutes to an hour of death, as both the

Commonwealth and the defense assumed at trial. 444 As all three of the medical doctors who

reviewed the medical and autopsy records in conjunction with the instant motion have

explained, the Commonwealth’s theory that Peixoto inflicted a fatal assault on the day that

Christopher died is “completely unsupported by the medical evidence.” 445 Contrary to

Weiner’s premise that Christopher was a perfectly “healthy” child up until he collapsed, 446

the evidence presented in the instant motion establishes that he had been suffering for days

443
Ophoven Aff. ¶7, RA1_0453; Reifschneider Aff. ¶5, RA1_0430-1.
444
Ophoven Aff. ¶8, RA1_0454; Reifschneider Aff. ¶5, RA1_0430-1.
445
Id. (concluding that the medical and autopsy records directly conflict with and are scientifically incompatible
with the Commonwealth’s theory about what happened to Christopher); Squier Aff. ¶10, RA1_0549 (similarly
stating that there is “no evidence to support the suggestion that Christopher died as a result of head trauma
occurring within minutes of his collapse as the Commonwealth repeatedly and forcefully opined.”).
446
PCH 17.

107
from a neuroendocrine disorder that caused him to become critically dehydrated, and his

actual cause of death was hypovolemic shock.

1. Medical basis and significance of the newly presented PTDI diagnosis

In their post-conviction affidavits, Drs. Ophoven and Reifschneider each describe the

process by which they determined that Christopher was suffering from PTDI-induced

hypernatremic dehydration at the time of his death. As they explain, laboratory testing of

blood drawn at the hospital – which was repeated to confirm the accuracy of the results –

revealed that Christopher was suffering from severe hypernatremic dehydration, “meaning

that his sodium level was so elevated that it was life threatening.” 447 According to both

experts, hypernatremia develops in only one of two ways: sodium gain or water loss. 448 In

their opinion, the clinical and medical data point exclusively to water loss as the cause of

Christopher’s high sodium levels. 449 They further agree that central diabetes insipidus is the

only medical condition that could account for Christopher’s dramatic loss of water and

retention of sodium, given the facts established by his medical records. 450 Moreover, the

extrinsic physical symptoms of dehydration that were observed in Christopher (cracked lips,

excessive urination, stumbling and falling down stairs) rebut Arcuri’s concern that the lab

results were somehow corrupted.

Drs. Ophoven and Reifschneider further opine that Christopher’s diagnosis

definitively contradicts the Commonwealth’s explanation for the timing of the head trauma

that triggered his collapse. They explain that “diabetes insipidus is a rare neuroendocrine

447
Reifschneider Aff. ¶15, RA1_0435-7.
448
Id.; Ophoven Aff. ¶20, RA1_0477-8.
449
Reifschneider Aff. ¶15(b), RA1_0436-7; Ophoven Aff. ¶21, RA1_0478.
450
Reifschneider Aff. ¶¶16, 19, RA1_0436-7, RA1_0438.

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disorder in which an interference with the body’s ability to regulate water balance causes the

body to excrete excessive amounts of solute-free urine.” 451 This disruption occurs when

either the hypothalamus (which produces the water-regulating hormone) or the pituitary

gland (which stores that hormone) are injured. 452 Significantly, basilar skull fractures, such

as the fracture that was present in this case, are a known risk factor for developing PTDI and

other endocrine disorders. 453 Regardless of the specific mechanism that damages the

pituitary or hypothalamus, the process that is triggered by the impact is progressive, meaning

that it would have taken several days after impact for Christopher’s sodium serum

concentration to reach the critically elevated levels detected at the hospital. 454

2. Corroboration of the PTDI diagnosis.

Drs. Ophoven and Reifschneider also point to collateral accounts of Christopher’s

appearance and mental status in the days leading up to his collapse that are clinically

significant and supportive of their opinion that Christopher’s PTDI had to have begun at least

several days prior to his death. These include: (1) reports of changes in Christopher’s mental

451
Reifschneider Aff. ¶16, RA1_0436-7.
452
Id.
453
Reifschneider Aff. ¶17, RA1_0437.
454
Ophoven Aff. ¶25, RA1_0479-50. When a PTDI patient is first injured, they become hormone deficient, losing
their ability to regulate water balance. Ordinarily, the third mechanism kicks in and the patient is able to
maintain a normal sodium level by drinking large quantities of water. However, when the condition goes
untreated and the person’s thirst mechanism does not activate or they do not have access to water, they cannot
replenish the water that they are losing, and the sodium level gradually increases over days. As Ophoven
explains, “A child who is suffering from PTDI gradually (through excessive urination) loses significant amounts
of water from the body; that water loss in turn gradually alters the sodium concentration in the bloodstream….
In this case, in order to reach a sodium concentration level of 183, the child would have had to lose liters of
dilute urine in the intervening period between the head impact and his collapse. It is physically impossible for
that amount of water loss to occur within thirty minutes, as alleged by the Commonwealth, thus the head
impact that triggered the onset of PTDI could not possibly have happened within thirty minutes of his collapse.”
Id. See, e.g., W Paiva et al. Serum sodium disorders in patients with traumatic brain injury, 7 Ther Clin Risk
Manag 345-9 (2011); (Median time to development of hypernatremia was 5 days); U Maggiore, et al., The
relation between the incidence of hypernatremia and mortality in patients with severe traumatic brain injury, 3
Crit Care 110 (2009). (hypernatremia takes several days to develop); S O'Donoghue, et al., Acquired
hypernatraemia is an independent predictor of mortality in critically ill patients, 64 Anaesthesia 514-20 (2009)
(3 day median time to development of hypernatremia).

109
status including reports of dizziness, lethargy, “acting drunk,” and stumbling, and falling

down stairs (as reported by both Peixoto and Steve Morton); (2) reports of dry, cracked,

bleeding lips, including by the EMTs and hospital staff who treated Christopher at the

hospital; and (3) reports of a recent and uncharacteristic pattern of daytime and nighttime

toilet training accidents and bedwetting. 455 EMT Legendre’s post-conviction affidavit further

underscores the neglected evidence of Christopher’s profound dehydration: “[i]t appeared to

me that the child was extremely dehydrated, and that his veins had collapsed.” 456

As Ophoven explains, the Commonwealth’s experts evidently failed to consider or

address how the critically elevated sodium levels detected in Christopher’s lab results might

explain his evident dehydration and other PTDI symptoms in the days leading up to death. 457

Likewise, Arcuri was never presented with the opportunity to revisit his initial concern that

Christopher’s abnormal lab results might be invalid or the result of contamination 458 in light

of the extrinsic physical symptoms of profound dehydration (cracked lips, excessive

urination, stumbling gait), because with the exception of Christopher’s lips, he did not even

learn about them until many decades later.” 459

B. Newly presented forensic analysis of the medical evidence debunks each and
every core assumption that produced Brian’s wrongful conviction and reveals
serious deficiencies in the original medico-legal investigation.

The newly presented forensic analysis of medical evidence by Drs. Ophoven, Squier,

Van Ee, and Sussman also debunks each and every core assumption of the Commonwealth’s

case against Peixoto. First and foremost, these experts collectively establish that there is no

455
Reifschneider Aff. ¶¶25-26, RA1_0440-1; Ophoven Aff. ¶¶23-24, RA1_0478-9.
456
Legendre Aff. ¶3, RA1_0364.
457
Ophoven Aff. ¶24, RA1_0479.
458
Arcuri Aff. ¶9, RA1_0412.
459
Arcuri Aff. ¶13, RA1_0414; RA2_0103.

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evidence at all of fatal injury to the brain substance or any other injury that would necessarily

have caused Christopher to lose consciousness or to be rendered comatose and suffer cardiac

arrest immediately after the impact that caused his skull fracture. 460 Second, these experts

also invalidate the Commonwealth’s claim that Christopher’s skull fracture and subdural

bleeding necessarily involved “massive” force (misleadingly described by Newberger as

equivalent to a two-story fall onto concrete), that it necessarily involved “multiple” impacts,

or that the injuries necessarily had to have been inflicted. Third, they invalidate the

Commonwealth’s claim that the “vast majority of Christopher’s bruises” – including those on

his upper arm, forehead and scalp – occurred at or about the time of death, in the course of a

single, traumatic assault. Fourth, they invalidate the Commonwealth’s evidence that

Christopher’s suffered injuries to his penis and scrotum. And fifth, they reveal Sneed to be an

unreliable historian, from the standpoint of the medical community.

1. Immediate coma and cardiac arrest.

At the time of trial, all three of the experts who reviewed the medical evidence

insisted that whatever caused Christopher’s skull fracture and subdural bleeding necessarily

caused him to immediately lose consciousness and/or triggered the immediate onset of a

coma and cardiac arrest. Broadly speaking, this comes as no surprise to Drs. Ophoven and

Squier. because, as Ophoven explains, “in the 1990s, it was widely assumed at that time that

when a child had a skull fracture and subdural hemorrhage, it necessarily meant that the

child also had diffuse axonal injury.” 461 As a corollary, experts at that time also believed that

460
Squier Aff. ¶31, RA1_0573; Ophoven Aff. ¶17(c)(ii), RA1_0475; Ophoven Supp. Aff. ¶2(c), RA1_0496.
461
Ophoven Aff. ¶17(c), RA1_0474-6; Squier Aff. ¶11(d), RA1_0552 (“when Dr. Weiner concluded that ‘the
blows that caused the fracture of the skull would definitely have rendered him unconscious instantly and
possibly caused him to die within minutes, he must have been assuming that whatever impact caused the skull
fracture must have also caused fatal microscopic brain injury, or diffuse damage to axons.”).

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any child who suffered an impact sufficient to produce a skull fracture and subdural

hemorrhage those injuries could not be lucid (conscious) for any significant period of

time. 462 In this way, Weiner’s invalid assumption that the child suffered an acutely fatal

axonal brain injury naturally led him to believe that immediate loss of consciousness

occurred, and the defense expert with whom trial counsel consulted assured him that Weiner

was correct on this point. 463

However, the combined review by Drs. Ophoven, Squier and Van Ee directly

contradicts these core assumptions by Weiner. Their affidavits make clear that pediatric

patients can and do suffer skull fractures and intracranial bleeding without losing

consciousness or suffering the kind of brain damage that triggers immediate coma, cardiac

arrest and death. 464 While injury to the brainstem could certainly lead to cardiac arrest

instantly or within minutes, neither Weiner nor Schoene found any obvious injury to the

brainstem, nor did they collect any slides or tissue samples from the brainstem that would

have enabled a more detailed analysis of this issue. Without an anatomical cause of death

that Weiner could point to, such as an injury to the brain stem, Weiner should have taken

steps to rule out all other possible causes of death before assuming that there must have

been a fatal brain injury, yet he failed to do so. After all, as Drs. Ophoven and Squier agree,

the only type of closed head injury that can result in immediate coma, or the type of loss of

consciousness that precedes death, is severe diffuse axonal injury (DAI). 465 Yet none of the

462
Ophoven Aff. ¶17(c)(ii), RA1_0475.
463
Id.; Sussman Aff. ¶18, RA1_0582-3 (observing that trial counsel’s notes from their pre-trial consultation
meeting “reflect that I advised him that the infliction of a skull fracture of the magnitude present in this case
would normally constitute a catastrophic event, resulting in the onset of a coma and cardiac arrest within
minutes after infliction.”).
464
Ophoven Aff. ¶17(c)(ii), RA1_0475.
465
Id.

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macroscopic or microscopic findings made at autopsy or neuropathology examination

establish that Christopher suffered this type of injury. 466 Weiner also should have been aware

that Christopher was suffering from fatal dehydration, as evidenced by his critically elevated

sodium levels and cracked, desiccated lips, since the child’s dehydration would have

explained Christopher’s death without having to speculate about a postulated invisible

catastrophic brain injury. But he evidently never learned about or considered this key

information.

The post-conviction review by Drs. Ophoven and Squier also reveals that Newberger’s

explanation for why Christopher lost consciousness shortly after impact – that he

experienced a sudden, massive rise in intracranial pressure – is preposterous and

counterfactual. Not only was Newberger wrong to say that there was “massive swelling” of

the brain (which there was not), but as Ophoven explains:

Absent an arterial tear (of which there was no evidence in this case), even the
most serious and ultimately fatal subdural hemorrhage takes at least some
time to develop. In order for a subdural hemorrhage to achieve the level of
intracranial pressure that will result in altered consciousness, a substantial
quantity of blood (well beyond that which was present here) must accumulate
inside the skull. Newberger’s testimony that the child suffered an acute trauma
that rendered him comatose within minutes reflects a basic lack of
understanding of this process.” 467

Sussman’s post-conviction affidavit mirrors this assessment. As he observes, “it takes at least

some time for blood to accumulate and for the brain to swell enough to cause a fatal rise in

intracranial pressure.” 468 In conclusion, the newly presented expert opinions of Drs.

Ophoven, Squier, Van Ee and Sussman collectively eviscerate both Weiner and Newberger’s

466
Squier Aff. ¶31, RA1_0573; Ophoven Aff. ¶17(c)(ii), RA1_0475; Ophoven Supp. Aff. ¶2(c), RA1_0496.
467
Ophoven Aff. ¶16(f)(i), RA1_0472.
468
Sussman Aff. ¶18(d), RA1_0583.

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explanations for the presumed timeline of Christopher’s collapse and death, as well as for the

actual cause of death.

2. “Multiple” impacts and “massive” force.

The Commonwealth’s experts also emphasized at trial that Christopher’s skull

fracture and subdural bleeding involved “multiple” impacts inflicted with “massive” force –

misleadingly described by Newberger as equivalent to a second story fall onto concrete. This

evidence was pivotal to the Commonwealth’s claim that Christopher’s injuries had to have

been intentionally inflicted, and beyond that to the theory that whoever inflicted that did so

with malice and/or extreme atrocity or cruelty. 469 However, as Van Ee comprehensively

explains, a substantial body of biomechanical science research firmly establishes that the

skull fracture in this case can occur from the impact force generated by a fall as low as 3-5

feet onto a hard residential floor surface, such as could occur in a domestic environment. 470

Put otherwise, the Commonwealth’s claim that Christopher’s injuries could only have been

caused by “massive” and inflicted force is belied by extensive scientific research to the

contrary.

Newberger and Weiner were equally forceful in their opinions that it required

“multiple (eight or more) impacts” to produce the injuries to Christopher’s head and scalp.

This claim also featured prominently in the Commonwealth’s closing argument, with a

dramatic, audible demonstration of the eight separate impacts she contended were involved

469
In the Commonwealth’s closing argument, the prosecution argued that “this murder of this little boy was
committed with extreme cruelty and atrocity.” Tr. 5/60.
470
Van Ee Aff. ¶19, RA1_0518. Van Ee also made this point in his 2014 affidavit, where he further observed that
a fall as low as 3-5 feet could generate sufficient force to cause the fracture, subdural hematoma and diffuse
axonal injury. Van Ee 2014 Aff. ¶18, RA1_0882-9. But this was not presented to the trial judge who denied
Peixoto’s 2012 new trial motion.

114
in causing Christopher’s death. 471 Yet as Drs. Ophoven and Sussman now explain, the most

that any forensic pathologist can reasonably opine is that there was at least one impact. 472

Van Ee agrees, noting that from a biomechanical standpoint, “the single linear skull fracture

identified at Christopher’s autopsy is consistent with a single impact.” 473

Ophoven makes a number of additional observations about the back of Christopher’s

scalp which bear on the Commonwealth’s theory that there were eight separate impacts.

First, the hospital and autopsy photographs of Christopher’s head and scalp do not reflect the

presence of any visible swelling or evidence of broken or disrupted skin. This is consistent

with the observational testimony of Drs. Arcuri and Weiner, neither of whom observed any

swelling in this area. It is also consistent with Arcuri’s medical record and Weiner’s autopsy

report, neither of which document any swelling in this area. And it directly contradicts

Newberger’s testimony about the condition of Christopher’s scalp. 474

Second, there are “stark differences” between the scalp photographs taken at the

hospital, which show little if any visible redness and no skin damage, and those taken at

autopsy, which show pooling of blood under the skin surface (lividity) that is visible even

before the head is shaved. In Ophoven’s view, these differences illustrate the danger of

Newberger’s exclusive reliance on the autopsy photographs to support his conclusions about

impact points and swelling. 475

Third, in Ophoven’s opinion the absence of any visible skin breakage or surface

damage to the back of Christopher’s scalp casts significant doubt on Newberger’s description

471
Tr. 5/59; Marsha Pobzeznik, Child Killer Gets Life, The Herald News (Mar. 8, 1997), RA1_0762-3.
472
Ophoven Aff. ¶17(c)(iii), RA1_0475.
473
Van Ee Aff. ¶19, RA1_0518.
474
Ophoven Supp. Aff. ¶4(a), RA1_0499.
475
Ophoven Supp. Aff. ¶4(c), RA1_0499-500.

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of what he claimed happened. As she explains: repeated, forceful impacts onto an unyielding

surface such as Newberger opined would “most probably cause damage to the surface skin

and soft tissues at the impact site[s]...[such as] laceration, abrasions and swelling.” 476 Yet no

such damage was detected at the hospital or autopsy. Van Ee further underscores this point:

“[i]f, as Newberger posits, there had been not one but eight separate impacts, each with the

force equivalent to a second story fall onto concrete, I would expect there to be a much more

complex fracture pattern and much more extensive injury to the scalp than what was present

and documented at autopsy.” 477

3. Interpretation and aging of Christopher’s bruises.

Both of the Commonwealth’s experts insisted at trial that the “vast majority of

Christopher’s bruises” – including the bruises on his upper arm, back of head, and two of the

three forehead bruises – occurred in the course of a single, traumatic assault that happened

at or about the time of death. Weiner purportedly arrived at this opinion after

microscopically examining the tissue samples that he collected at autopsy. As Drs. Ophoven

and Sussman explain, microscopic examination of sections of skin can show evidence of the

body’s reaction to injury in the form of inflammatory changes that follow a somewhat

predictable pattern. 478 However, Weiner’s analysis fell short for several reasons. First, his

conclusory statements about the age of the bruises in all but three of the tissues that he

sampled are highly misleading, as they appear to be based solely on the absence of markers

of inflammation in the slides that he examined. 479 As Ophoven explains, there are no markers

476
Ophoven Supp. Aff. ¶4(d), RA1_0500.
477
Van Ee. Aff. ¶24(b), RA1_0522.
478
Ophoven Supp. Aff. ¶4(f), RA1_0500; Sussman Aff. ¶20(b), RA1_0584.
479
Ophoven Supp. Aff. ¶4(h), RA1_0501.

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that would definitively show that hemorrhaging occurred at or about the time of death. 480

More importantly, Weiner’s reliance on the absence of inflammatory features ignores the fact

that inflammation can take hours or even days to be microscopically visible, hence “the

absence of such features does not establish that the injury was acute or had just

happened.” 481 Put otherwise, there is no way to reliably age a bruise to within less than a day

or two based on the absence of inflammatory features, let alone to determine that bruises

happened at or about the time of death, as Weiner purported to be able to do.

Second, according to Ophoven’s own microscopic review of slides prepared from

recuts of Weiner’s original tissue samples, many of the tissues that he characterized without

any documentation or elaboration as “acute” subcutaneous hemorrhages – including all three

forehead bruises 482 and all of the bruising in the occipital area of Christopher’s scalp –

actually do contain features of an ongoing inflammatory process consistent with bleeding

that began days earlier. 483 While Ophoven is careful to explain that these features do not

definitively establish the age of the bruises that were sampled, because it is never possible to

determine when the inflammatory process began, they do provide at least some microscopic

evidence to contradict Weiner’s testimony that the bruises were “acute.” 484 Unlike Weiner’s

testimony, Ophoven’s analysis of the bruise tissue slides aligns with the accounts of daycare

480
Id.
481
Id.
482
Weiner found that only one of the forehead bruises, on the center of Christopher’s forehead, was older –
based on the presence of early granulation tissue. However, he estimated that bruise to be 2-3 days old, not ten
days old as Sneed maintained, thus even Weiner’s findings contradicted Sneed’s explanation for that bruise.
483
Ophoven detected inflammatory markers of healing in Slides B (right upper arm), E (mid upper chest), F (left
forehead), I (right forehead), L (right occipital), N (left occipital) and O (mid occipital). Ophoven Aff. ¶14(f),
RA1_0462; Ophoven Supp. Aff. ¶4(g), RA1_0501. It should be noted that Weiner’s autopsy report actually
mislabels Slide F as “Left Forearm” when it was in fact “Left Forehead.” However, this error was not identified
until 2016, when present counsel obtained a complete copy of the OCME file which included Weiner’s
handwritten slide key correctly identifying the source of Slide F. Compare RA2_0376 with RA2_0512.
484
Ophoven Supp. Aff. ¶4(g), RA1_0501.

117
providers who – several days prior to Christopher’s death – noticed three areas of bruising

on his forehead, 485 as well as bruising on his right cheek, the top and middle of his right ear,

the fronts and backs of the upper parts of both of his legs, and in the center of his back. 486

Most importantly, as Ophoven explains, the only way to reliably date the skull fracture –

which was the crux of Weiner’s testimony – is to “microscopically examine the skull bone,

fracture and periosteal tissue over the bone at the fracture site.” 487 Yet Weiner failed to

collect such tissue and bone samples, so that examination did not happen here.

With respect to Newberger’s testimony about Christopher’s bruises, Ophoven

observes that, unlike Weiner – who at least ostensibly relied on microscopic examination to

evaluate the age of Christopher’s bruises – Newberger's opinion was based entirely on his

visual assessment of the color of these bruises as depicted in autopsy photographs which he

repeatedly pointed out were of limited quality. 488 Although Newberger had reviewed the

autopsy report and was aware of the findings of Weiner’s microscopic examination, he falsely

testified that the only source of information available to him to age the bruises was the

autopsy photographs. 489 Additionally, despite his extensive training as a pediatrician, he

485
Day care nurse Terry Copper described her observation of three bruises on Christopher’s forehead several
days before his death. RA2_0512. Significantly, Copper did not testify, and the two daycare workers who did
testify described seeing “a bruise” on the forehead, so the jury never learned that Copper saw three separate
forehead bruises and made a contemporaneous record of her observation in the daycare record.
486
It should also be noted that Weiner’s conclusory opinion that “all” of Christopher’s injuries (but for the three
he specified) occurred at or about the time of death far overstates what he could ascertain from his microscopic
examination, because he did not even sample any tissue from several areas including Christopher’s back, cheek,
or ear, yet he still claimed to be able to date each of those injuries to the time of death without any microscopic
support.
487
Ophoven Supp. Aff. ¶4(g), RA1_0501.
488
Ophoven Aff. ¶16(d), RA1_0471.
489
Tr 2/115. Referring to an injury that Newberger claimed was visible on the tip of the penis, Newberger
testified, “That line of discoloration looked, to me, from the photograph I saw, and that was the only source of
information I had available to me, to indicate an older collection of blood.” However, Newberger was fully aware
that Weiner had examined a section of tissue taken from that same location and that Weiner concluded it
showed “acute subcutaneous hemorrhage.”

118
failed to consider the accounts of daycare providers who saw Christopher within days of his

death, although he expressly acknowledged receiving them in his pre-trial report. 490 He also

failed to consider the descriptions of the bruises by the EMTs and hospital staff who oversaw

resuscitation efforts on the night he died, although he ostensibly reviewed the reports and

medical records containing this information. 491 In these ways, Newberger entirely “ignored

the limitations of the photographic data that was available to him as well as the documented

history of bruising.” 492

As Ophoven explains, Newberger’s analysis reflects an outdated understanding of the

reliability of coloration as a way to measure bruise age, one that had never been scientifically

validated but was still in common use among many testifying experts at the time of trial. 493

Arcuri confirms that “[a]t the time of my involvement in this case, the medical community

routinely relied on color to date or age bruises,” 494although it is now well understood that “it

is not scientifically reliable to pinpoint the age of a bruise based on its color.” 495 However,

Newberger went far beyond even these prevailing norms, implying that certain of

Christopher’s bruises could be aged to within an hour of death. 496 As Ophoven points out,

even when reliance on color as a basis to age bruises was thought to be reliable, no study

ever purported to show that bruises can be dated to within an hour. 497 Indeed, Newberger’s

testimony about the timeline of Christopher’s bruises is inconsistent with his own past

490
RA1_0766.
491
Id.
492
Ophoven Aff. ¶14(f), RA1_0462.
493
Ophoven Supp. Aff. ¶4(g), RA1_0501.
494
Arcuri Aff. ¶12(b), RA1_0413.
495
Id.
496
Tr. 2/114.
497
Ophoven Aff. ¶16(d), RA1_0471.

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academic writing about the color progression of bruises. 498 In short, it is now clear that

Newberger’s testimony on the age of Christopher’s bruises was patently unscientific and

unreliable. Yet the defense had no way of knowing, in advance of trial, that he would testify in

the manner that he did, because his pre-trial report did not refer to bruise coloration at all.

Newberger also separately maintained that he could discern a pattern of finger-

shaped bruising on the photographs of Christopher’s upper arms. He opined that this

“pattern” substantiated his theory that someone grabbed Christopher by his upper arm and

slammed the back of his head onto a hard flat surface using massive force. As Ophoven

explains, “to bear out that hypothesis, one would expect to find a configuration of multiple

bruises, on both arms, consisting of one larger (thumb) bruise and three or four smaller

bruises.” 499 Yet according to Weiner’s autopsy, as further documented in the autopsy

photographs, Christopher had only one cluster of bruises, on the right upper arm, and a

singular bruise on the front side of his left arm. 500 Additionally, Newberger was on notice

that, according to Ami Sneed, she had seen the right arm bruises 24-48 hours before

Christopher died. 501 Perhaps most importantly, according to Ophoven, “the configuration of

bruises on that arm – falsely described by Newberger as four triangular marks which were

laid out in a diamond shaped configuration – is not consistent with a grab mark.” 502

498
As discussed supra at 57 n. 223, Newberger testified that “for the most part,” the “great number of
[Christopher’s] bruises were blue, red and purple,” meaning that they were obtained “very recently.” However,
in an article authored by Newberger himself in 1981, he wrote that “[i]n the first 24 hours, a bruise may be
reddish-blue or purple,” while “from the first to the third day, the color becomes blue or blue-brown.”
499
Ophoven Supp. Aff. ¶5(b), RA1_0502.
500
RA2_0377.
501
Tr. 3/157.
502
Ophoven Supp. Aff. ¶5(b), RA1_502.

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 4. Condition of Christopher’s penis and scrotum.

Ophoven’s review of the autopsy photographs, autopsy report and microscopic slides

also completely eviscerates the crowning jewel of the Commonwealth’s colorful and

disturbing narrative: that, in a fit of rage, Peixoto deliberately injured Christopher’s penis

and scrotum, leaving his mark on Christopher’s body “like the Z from Zorro.” 503 Ophoven’s

affidavits – which are based on her own microscopic examination of the relevant tissue

slides, the accompanying hospital and autopsy photographs, and the fact that these “injuries”

were not observed by EMTs and hospital staff who carefully examined the child’s body, nor

by any of the law enforcement officers who viewed and/or photographed his body at the

hospital – directly contradict this evidence. As she explains in her first affidavit, “there is no

microscopic evidence at all of traumatic injury or bleeding into the penis and scrotal tissue

sections.” 504 In her supplemental affidavit, she elaborates that her examination of Slide A, the

only slide containing tissue from the penis and scrotum, “did not reveal any evidence of

extravasated blood. If there had been an injury to these tissues, the blood vessels would have

been disrupted and blood would have oozed out of the vessels beneath the skin in places

where blood should not normally be. In tissue slide A, all of the blood was located within the

blood vessels (described pathologically as “congestion”) is a normal finding and thus there

truly was no evidence of injury to the penis/scrotum tissue.” 505

Ophoven also comments on, and explains the significance of, EMT Legendre’s specific

recollection that he examined Christopher’s genital area but did not notice any bruising or

503
Tr. 5/54.
504
Ophoven Aff. ¶16(b)(i), RA1_0469-70. Ophoven supplemented her first affidavit after receiving and
analyzing additional slides received from the Commonwealth at the behest of Peixoto’s present legal team.
505
Ophoven Supp. Aff. ¶6(c), RA1_0504.

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injury to the genitals. 506 In Ophoven’s opinion, Legendre’s memory of this issue, coupled with

the fact that none of the medical professionals at the emergency room noticed any injuries to

that area, “supports the inference that – if there even was an abrasion to the scrotum, as

claimed by Drs. Weiner and Newberger but not confirmed microscopically – it must have

occurred after Christopher arrived at the hospital.” 507 As Ophoven explains, there is “no way

to rule out the possibility that whatever was seen on the scrotum by the medical examiner at

autopsy was a post-mortem artifact, such as scrotal drying.” 508

Significantly, Newberger is a clinician, not a pathologist, and thus he had no training

or experience with the interpretation of post mortem artifacts, such as scrotal drying. Indeed,

the involvement of medical professionals without forensic pathology training in autopsy

procedures was highlighted as one of the significant problems with the medicolegal death

investigation system nationwide in a 2004 report submitted to the Department of Justice by

the National Association of Medical Examiners (NAME). 509 This problem was also highlighted

in a systemic inquiry into pediatric fatal head injury investigations published in Canada in

2008 (the Goudge Inquiry), where it was noted that that there was a high risk of

misinterpretation of wounds found at autopsy when the person conducting the autopsy is

not a trained forensic pathologist. 510 And the problem was highlighted once again by the

National Academy of Sciences in the 2009 NAS Report. 511

506
Id.
507
Id.
508
Id. It should be noted that although Weiner’s autopsy report states that his external examination of the
scrotum revealed what he believed to be an”abraded contusion with underlying hemorrhage,” he found “no
acute changes” in the subsequent microscopic examination of scrotal tissue.
509
Matthew Hickman, et al., Medical Examiners and Coroners’ Offices, Bureau of Justice Statistics at 3 (2004).
510
Stephen T. Goudge, Inquiry into Forensic Pediatric Pathology in Ontario (2008).
511
National Research Council, Strengthening Forensic Science in the United States, A Path Forward at 30 (2009).

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 5. The controversy surrounding Ami Sneed’s account of Christopher’s clavicle
fracture and forehead bruise reveals her fundamental unreliability as a historian.

At trial, Sneed told the jury that she personally witnessed the fall that resulted in

Christopher’s clavicle fracture ten days prior to his death. She testified that, while descending

the stairs at his grandmother’s house, Christopher “jumped off the last two stairs, and he fell

and, like, hit head first.” 512 She elaborated that he “tried to jump the last two steps and he

stumbled, he fell and he banged his head in the middle of his forehead.” 513 This account went

essentially unchallenged by the defense at trial, except to the extent that counsel highlighted

that the fall occurred when Christopher was in Ami’s exclusive care. However, as Van Ee has

now observed, Sneed’s testimony does not adequately explain how Christopher’s clavicle

fracture happened. As he elaborates, “it is well established that clavicle fractures are most

commonly caused by a direct impact to the shoulder; most typically, direct impact to the

outer part of the shoulder…or – in rare cases – indirect impact to the clavicle via a fall onto an

outstretched arm.” 514 However “a single impact to the forehead, without direct or indirect

trauma to the shoulder, could not have caused the clavicle fracture.” 515 Sneed’s reliance on

the “stairway fall” ten days prior to death to explain how Christopher got a bruise in the

center of his forehead is also contradicted by the medical records from Christopher’s

treatment for the clavicle injury – which state that “no ecchymosis” (bruising) 516was seen by

medical providers when they examined him that day. Sneed’s explanation for the center

forehead bruise is also belied by all three doctors who testified for the Commonwealth at

trial: Weiner viewed a sample of the bruise under the microscope and determined that it was

512
Tr. 3/40.
513
Tr. 3/42.
514
Van Ee Aff. ¶11, RA1_0516.
515
Van Ee Aff. ¶13, RA1_0516.
516
RA2_0260.

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approximately two or three days old, not eleven or twelve days old, as Sneed claimed,

Newberger testified that he did not see any injuries that were more than a week old, and

Arcuri noted in his medical report that he believed all of the forehead bruises were three or

four days old.

Drs. Reifschneider, Ophoven and Squier echo and elaborate on Van Ee’s concern about

Sneed’s explanation for the fracture. In Reifschneider’s opinion, Sneed’s account ought to

have prompted the emergency room team that treated Christopher for the clavicle fracture

to “perform a complete skeletal survey at that time, to rule out a non-accidental trauma.” 517

He further calls attention to Sneed’s failure to bring Christopher back to the hospital even

after she observed “changes in the child’s behavior in the week leading up to his demise.” 518

As he explains, “[i]n my clinical experience, the parent or caretaker of a child who is

exhibiting symptoms of hypernatremic dehydration will ordinarily seek medical care long

before the symptoms have reached the critical, life-threatening levels seen here.” 519 Ophoven

and Squier take it one step further, concluding that Sneed’s pattern of inconsistent

statements surrounding Christopher’s prior injuries and his fatal collapse, coupled with her

false statements about her interactions with her son’s pediatrician’s office, together

demonstrate that “she would be deemed by any forensic pathologist to be an unreliable

historian whose statements would have to be viewed with extreme caution.” 520

As a pediatrician and self-professed child-abuse expert, Newberger must have known

that there were reasons to question Sneed’s reliability as a historian of her child’s physical

517
Reifschneider Aff. ¶20, RA1_0438-9.
518
Id.
519
Reifschneider Aff. ¶25 n. 15, RA1_0440-1.
520
Ophoven Supp. Aff. ¶8(d), RA1_0506; Squier Aff. ¶4 n. 2, RA1_0545. See Addendum B at 183.

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condition. Contemporary guidance from the Department of Justice directed investigators to

take certain steps in every case of suspected abuse: (1) review of all medical records,

including records of older injuries; (2) obtain a caretaker history and assessing whether it

adequately explains any injuries (which Sneed’s did not); (3) assess whether the caretaker

provides consistent accounts over time (which Sneed did not); and (4) determine whether

the caretaker changes his/her account when told of conflicting medical or forensic

information (which she did). The Department of Justice expressly cautioned that:

A major trait of abusive caretakers is either the complete lack of an explanation

for critical injuries or explanations that do not account for the severity of
injuries. The investigation must not be dictated solely by caretakers’ early
explanations, because once they learn those do not match the medical
evidence, they will come up with new ones…In nearly every case of actual
abuse, the caretakers will not be consistent in their explanations of the injuries
over time. Sometimes the changes are apparent from statements abusers have
made to others. Additional interviews may be needed to document the
changing explanations and to follow up on additional information that the
investigation uncovers.” 521

Yet despite being well aware of the many red flags that ought to have caused investigators to

question Sneed’s credibility as the primary caretaker of a child with a documented history of

prior injuries, Newberger persisted in pedaling the Commonwealth’s narrative that Peixoto,

and only Peixoto, could have committed this horrendous crime. While he did not directly

testify that Peixoto was guilty, his vivid unscientific profile evidence – which was based on a

toilet accident we now know did not happen and genital injuries we now know did not exist –

left the jury with no other reasonable explanation for the child’s death.

521
Office of Juvenile Justice and Delinquency Prevention, Battered Child Syndrome: Investigating Physical Abuse
and Homicide, U.S. Department of Justice at 4 (2002).

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 C. Newly presented expert review of the trial record and medical evidence also
reveals that Dr. Newberger gave demonstrably false and misleading testimony.

As described in detail in their post-conviction affidavits, Drs. Ophoven, Squier, Van Ee

and Sussman collectively establish that Newberger’s testimony was unscientific, grossly

misleading, and in many respects demonstrably false. As an initial matter, all three of the

forensically trained pathologists who provided affidavits in connection with the instant

motion agree that not only did Newberger lack the requisite training and expertise to opine

on cause of death, but his ultimate conclusion on this issue was definitively ruled out by the

autopsy and neuropathology findings. 522 Ophoven, Squier and Van Ee also highlight the

numerous ways in which Newberger embellished on findings made by other experts in order

to fit his theory of abuse 523 and even manufactured injuries that were not found by Weiner at

autopsy or seen by Arcuri at the hospital. 524 Additionally, with respect to Newberger’s

characterization of Christopher’s eyes, lips and genitals – the three areas he highlighted due

to their exquisite sensitivity to pain – Ophoven’s own analysis of the tissue slides, autopsy

photographs and autopsy findings by Weiner definitively disproves his testimony two of

these areas were even injured at all, let alone that they were injured in the course of the

same event that both sides presumed to have been a fatal assault occurring moments before

collapse. 525

522
Ophoven Aff. ¶16, RA1_0469-73; Squier Aff. ¶24, RA1_0565; Sussman Aff. ¶21(a), RA1_0584. As Ophoven
elaborates, Newberger failed to account for the total absence of any morphological markers for fatal
intracranial pressure, and he failed to acknowledge or account for any of the relevant scientific data and
research bearing on the timing of Christopher’s head trauma. Ophoven Aff. ¶16(e) & (f), RA1_0471-2. Indeed his
cause of death determination was itself based on manufactured findings about the condition of Christopher’s
brain, as described in further detail infra.
523
Ophoven Aff. ¶16(c), RA1_0470.
524
Ophoven Aff. ¶16(b), RA1_0469-70.
525
Ophoven Supp. Aff. ¶6(c), RA1_0504.

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 Additionally, with respect to Christopher’s head and scalp, Squier observes that

Newberger:

● Repeatedly, and falsely, claimed that there were “numerous” collections of blood
under Christopher’s skin or scalp that he claimed were evidence of multiple
impacts, when in fact there was only one collection of blood under the scalp – the
single subgaleal hemorrhage described by Weiner in his autopsy report. 526

● Substantially overstated the quantity of bleeding observed by Weiner, claiming

that one of the autopsy photographs (Exhibit 31) depicted a “huge area of
hemorrhage.” 527

● Falsely claimed that Exhibit 31 reveals that Christopher’s brain was “crushed”
within the skull, when neither Weiner nor Schoene found any evidence of the type
of swelling or anatomical changes that occur when a patient dies in the manner
alleged by Newberger, 528 and Squier’s own review of Exhibit 31 refutes his
characterization of the condition of the brain depicted in the photograph. 529

● Falsely stated that the bleeding depicted in Exhibit 31 is a “vivid example of

hemorrhage over and within the brain substance”, when in fact the only bleeding
that was found within the brain was located beneath the frontal lobes, in an area of
the brain which was not visible in the photograph. 530

● Falsely claimed that it was “highly unlikely that there would have been any
seizures” following his injuries, “because of the devastating impact on the brain
that was evident at autopsy,” when in fact there was no devastating injury to the
brain evident at autopsy or during the neuropathology examination. 531

526
Squier Aff. ¶20(a), RA1_0560. The autopsy report and its description of a single subgaleal collection of blood
was the only source of information available to Newberger on this issue. His testimony that there were
“multiple” collections of blood under the scalp was based on his view of a photograph depicting the back of
Christopher’s head. No photos were taken of the area directly beneath the scalp.
527
Squier Aff. ¶20(b), RA1_0560.
528
Squier Aff. ¶20(c)-(d), RA1_0560-2.
529
Squier Aff. ¶20(d)(vi), RA1_0561.
530
Squier Aff. ¶20(e), RA1_0562-3. Van Ee likewise observes that Newberger repeatedly, and wrongly, claimed
to be able to associate specific scalp bruises with the skull fracture, when Weiner himself made clear that it was
not possible to do so. Van Ee. Aff. ¶23(d), RA1_0522.
531
Squier Aff. ¶20(h), RA1_0564; Ophoven Aff. ¶16(h), RA1_0472-3. It should have been abundantly clear to Dr.
Newberger, based on the plain language of the autopsy and neuropathology reports, that Dr. Weiner did not
find any injury whatsoever to the substance of the brain itself, and that, apart from punctate (micro)
hemorrhages in the frontal lobes, Dr. Schoene found no other brain abnormality except slight brain swelling.

127
 In all of these ways, Newberger’s testimony painted an extraordinarily misleading

picture of Christopher’s condition at the time of his collapse and death. 532

LEGAL ARGUMENT

The Commonwealth’s entire case against Mr. Peixoto was built upon the premature

and misinformed assumption that Christopher’s death was due to a violent assault inflicted

with such massive force that it would have severely injured his brain and rendered him

comatose immediately after impact and dead within minutes. Both lawyers accepted that the

only open question for the jury to resolve was which one of the adults present, Ami Sneed or

Brian Peixoto, committed this heinous act. For nearly three decades, Mr. Peixoto has

steadfastly maintained – as he did in his sworn testimony at trial – that he did not assault

Christopher that night and does not know what happened to cause the child’s tragic collapse

and death. Yet it was not until the instant motion – developed as a result of the first-ever

comprehensive differential diagnosis and reexamination of the underlying medical findings

and testimony in the case that Peixoto finally had access to the full array of information

needed to demonstrate the complex web of injustices that led to his conviction and, more

fundamentally, to substantiate his factual innocence.

Under Rule 30(b) of the Massachusetts Rules of Criminal Procedure, a trial judge may

“grant a new trial at any time if it appears that justice may not have been done.” Mass. R.

Crim. P. 30(b). “The fundamental principle of this rule is that, where it appears that justice

may not have been done, the valuable finality of a conviction must yield to our system’s

reluctance to countenance significant individual injustices.” Commonwealth v. Brescia, 471

Mass. 381, 388 (2015). This is true even if there was no constitutional error at trial. Id. at

532
For a full list of Newberger’s false and misleading statements, see Addendum A, infra at 184-185.

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389; Commonwealth v. Epps, 474 Mass. 743 (2016). The Supreme Judicial Court has held that

a new trial is required in several enumerated circumstances, including: (1) where newly

discovered evidence “casts real doubt on the justice of the conviction” in the sense that it

“would probably have been a real factor in the jury’s deliberations”; (2) where “prejudicial

constitutional error occurred”; and (3) where the defendant demonstrates a “substantial risk

of a miscarriage of justice,” defined as a “serious doubt whether the result of the trial might

have been different had the error not been made.” Brescia, 471 Mass. at 389. See also

Commonwealth v. Cowels, 470 Mass. 607, 616-617 (2015) (newly available scientific

evidence); Commonwealth v. Martin, 467 Mass. 291, 316 (2014) (prejudicial constitutional

error); Commonwealth v. Childs, 445 Mass. 529, 530 (2005) (miscarriage of justice);

Commonwealth v. Randolph, 438 Mass. 290, 297 (2002) (serious doubt regarding result). A

new trial is also required where a defendant can establish that he was prejudiced by the

Commonwealth’s failure to disclose exculpatory evidence, Commonwealth v. Murray, 461

Mass. 10, 22-23 (2011), or deprived of an available ground of defense due to the deficient

performance of counsel. Strickland v. Washington, 466 U.S. 668 (1984); Commonwealth v.

Saferian, 366 Mass. 89, 96 (1974); Commonwealth v. Alcide, 472 Mass. 150, 151 (2015).

Additionally, a new trial is required where a defendant demonstrates that his federal and

state right to due process were violated because the Commonwealth presented, or failed to

correct, testimony which it knew or should have known was false. Commonwealth v. Ware,

482 Mass. 717, 721 (2019); Commonwealth v. Hurst, 364 Mass. 604, 608 (1974); Napue v.

Illinois, 360 U.S. 264 (1959).

Moreover, while appellate cases have collectively “crafted a latticework of more

specific standards to guide judges’ determinations in various types of situations,” these

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individual standards “have not eclipsed the broader principle that a new trial may be

ordered if it appears that justice may not have been done.” Brescia, 471 Mass. at 389–90. In

such situations, the “appropriate test” is whether a defendant has received a “fair trial,” and

the “question of fundamental fairness can only be determined on a case by case basis.” Id. In

applying this test, “a trial judge may need to [. . .] consider how a number of factors act in

concert to cause a substantial risk of a miscarriage of justice and therefore warrant the

granting of a new trial.” Commonwealth v. Rosario, 477 Mass. 69, 77–78 (2017); Epps, 474

Mass. at 767 (granting relief on basis of a confluence of interrelated claims of ineffective

assistance of counsel and newly discovered evidence).

As argued herein, many of the traditionally recognized circumstances supporting

post-conviction relief are present in Peixoto’s case. First, newly discovered evidence of

Christopher’s post-traumatic diabetes insipidus (“PTDI”) diagnosis conclusively invalidates

the Commonwealth’s theory about the timing of his traumatic head injury and demonstrates

that Christopher did not die in the manner alleged by the Commonwealth at trial, accepted by

the defense at trial, and treated as uncontroverted truth by every court that has ever

considered this case. This new diagnosis – coupled with a confluence of newly discredited

expert testimony by Weiner and Newberger, newly developed evidence demonstrating that

Newberger gave false and misleading testimony about Christopher’s condition, and newly

developed evidence exposing the egregious inadequacies of the medical death investigation –

powerfully supports Peixoto’s argument that justice was not done and that he is entitled to a

new trial. Second, the Commonwealth violated Peixoto’s federal and state right to due

process by knowingly presenting false evidence, capitalizing on the false evidence in the

closing argument, and failing to correct judicial findings that conflicted with documents and

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evidence contained in its own files. Third, in a trial that turned entirely on a credibility

contest between Ami Sneed and Brian Peixoto, prior counsel’s failure to investigate and

present powerful available evidence to impeach Sneed and to corroborate Peixoto created a

substantial risk of a miscarriage of justice. Separately and in combination, this confluence of

factors powerfully demonstrates that “justice may not have been done” and that Peixoto is

entitled to a new trial.

I. THIS COURT SHOULD GRANT MR. PEIXOTO A NEW TRIAL BECAUSE A

CONFLUENCE OF NEWLY DISCOVERED SCIENTIFIC EVIDENCE, NEWLY
DISCREDITED EXPERT TESTIMONY, AND SCIENTIFIC EVIDENCE THAT COULD
HAVE BEEN DEVELOPED BY COMPETENT APPELLATE AND POST-CONVICTION
COUNSEL DEMONSTRATES THAT JUSTICE WAS NOT DONE AND THAT THERE IS
A SUBSTANTIAL RISK OF A MISCARRIAGE OF JUSTICE.

To prevail on a motion for a new trial on the basis of newly discovered or newly

available evidence, a defendant must establish two things: (1) that the evidence was

unknown to the defendant or trial counsel and not reasonably discoverable at the time of

trial, and (2) that the evidence “casts real doubt on the justice of the conviction.”

Commonwealth v. Sullivan, 469 Mass. 340, 350-51 (2014); Commonwealth v. Grace, 397

Mass. 303, 305 (1986). To satisfy the first prong of this test, the defendant must establish

that “the evidence was not discoverable at the time of trial despite the due diligence of the

defendant or defense counsel.” Commonwealth v. Sena, 441 Mass. 822, 830 (2004). The same

standard applies regardless of whether the evidence at issue is “newly discovered” or “newly

available.” Sullivan, 469 Mass. at 350, n.6. The defendant need not show that it would have

been “impossible to have uncovered the new evidence before his trial,” only that “it was

unknown and unavailable at the time of trial despite the diligence of the moving party.”

Commonwealth v. Kobrin, 72 Mass. App. Ct. 589, 612-613 (2008). To satisfy the second

prong of the newly discovered evidence test, the defendant must demonstrate that the new

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evidence is “material and credible,” that it “carr[ies] a measure of strength in support of the

defendant’s position,” and that there is “a substantial risk that the jury would have reached a

different conclusion had the evidence been admitted at trial.” Cowels, 470 Mass. at 617, citing

Grace, 397 Mass. at 306. “The standard is not whether the verdict would have been different,

but whether the evidence probably would have been a real factor in the jury’s deliberations.”

Sullivan, 469 Mass. at 350-51 (emphasis supplied).

As argued herein, the expert opinions of Drs. Reifschneider and Ophoven that

Christopher Affonso Jr. was suffering from PTDI, and Ophoven’s further opinion that his

cause of death was hypovolemic shock due to profound hypernatremic dehydration caused

by untreated PTDI, constitutes newly available evidence that would probably have been a

real factor in the jury’s deliberations. In addition, a confluence of newly developed scientific

research repudiating bruise coloration as a reliable basis to age bruises and deficient

performance by prior counsel in not challenging the reliability of Dr. Newberger’s testimony

or securing an independent microscopic examination of the autopsy slides collected by Dr.

Weiner demonstrates that Peixoto was deprived of a substantial ground of defense. Finally,

where the prosecutor knew or should have known that Newberger’s testimony was false in

several important respects, the presentation of this evidence and failure to correct it on

appeal violated Peixoto’s federal and state right to due process. Collectively and in

combination with the other legal claims outlined in Part II, this newly presented medical

evidence establishes that Peixoto is entitled to a new trial.

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 A. The expert opinions that Christopher Affonso Jr. was suffering from post-
traumatic diabetes insipidus (“PTDI”), and Dr. Ophoven’s further opinion
that his cause of death was hypovolemic shock due to hypernatremic
dehydration caused by PTDI, constitute newly available evidence that
would probably have been a real factor in the jury’s deliberations.

1. The PTDI diagnosis was not known by trial counsel, nor was it discoverable with
the exercise of due diligence.

The PTDI diagnosis presented for the first time in the instant motion unquestionably

satisfies the first prong of the newly discovered evidence standard. The relevant inquiry is

what Peixoto and his attorney knew or could have known, by the exercise of reasonable

diligence, about his condition – as opposed to what was known or could have been known by

the medical profession at the time of trial about Christopher’s medical condition at the time of

death. The reasonable diligence inquiry “addresses the sufficiency of counsel’s actions, not

the actions of medical professionals retained by counsel,” Orndorff v. Virginia, 271 Va. 486,

503, 628 S.E.2d 344, 353 (2006), and “it would be a high hurdle indeed to expect counsel to

continue to search for an alternative diagnosis where he reasonably could not be expected to

know that one existed.” Commonwealth v. Rosario, 477 Mass. 69, 79 (2017), citing

Commonwealth v. Buck, 64 Mass. App. Ct. 760, 764 (2005). This is especially so where, as

here, trial counsel did consult with an expert prior to trial, that expert fundamentally

concurred with the medical examiner’s theory on the cause of death, and he did not alert trial

counsel to the abnormal lab results or recommend that he consult with an expert who could

have enabled him to discover the PTDI diagnosis. Rosario, 477 Mass. at 79 (holding that it is

especially clear that trial counsel could not be faulted for failing to develop evidence that the

defendant was suffering from delirium tremens, rather than psychosis, where several

different psychiatrists at the time of trial had concluded that the latter diagnosis explained

his condition during the interrogation). See also State v. King, 250 Ariz. 433, 454 (2021)

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(measuring the mental health professionals’ lack of understanding of the defendant’s

condition at the time of the trial against trial counsel’s efforts, the court did not abuse its

discretion by concluding that "[i]f the medical community did not understand the complex

nature of postpartum psychotic episodes brought on by a combination of disorders, surely

her counsel could not have been expected to do so.)"

As Peixoto’s trial counsel has explained, while he certainly had possession of the lab

results from the night that Christopher died, he “did not have the training to read and/or

interpret these results…[I]t was for this reason that [he] hired Dr. Sussman, to whom [he]

sent all such reports and medical records.” 533 To the best of counsel’s memory, Sussman

“never alerted [him] to the abnormalities detected by lab testing of the child’s blood.” 534

Moreover, he is “absolutely certain that neither Dr. Sussman nor anyone else ever alerted

[him] to the significance of Christopher’s abnormal electrolyte levels, i.e. that they were

incompatible with life and that it would have taken days, not minutes, for them to reach the

life threatening levels that were detected at the hospital.” 535

Counsel’s certainty is confirmed by Sussman himself, who explains that he is

“confident that [he] did not discuss the child’s laboratory results with counsel.” Not only does

Sussman lack any independent recollection of having done so, but he points out that his own

“knowledge of the diagnosis of post-traumatic diabetes insipidus was extremely limited, then

and now.” 536 As explains, even “[i]f I had focused on the lab results – and I see no evidence

that I did – I am confident I would have advised trial counsel to consult with an

533
Veary Aff. ¶10, RA1_0593.
534
Veary Aff. ¶11, RA1_0593-4. Counsel also correctly observes that, “to be fair to Dr. Sussman, neither Dr.
Weiner nor Dr. Newberger alluded to abnormal electrolyte levels in their pre-trial reports.” Id.
535
Veary Aff. ¶12, RA1_0594.
536
Sussman Aff. ¶22(a), RA1_0586.

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endocrinologist,” 537 which he did not do, consistent with being unaware of the results or

their significance.

Dr. Arcuri’s post-conviction affidavit sheds further light on the reasons why neither

the defense nor Commonwealth experts recognized or addressed Christopher’s PTDI

diagnosis at the time of trial. Arcuri agrees that “a sodium level of 183, if that lab result is

accurate, is not compatible with life.” 538 However, he notes that the lab results did not come

in until after he pronounced Christopher dead, and he was never made aware of the child’s

reported clinical history of acting “drunk” since the earlier fall and clavicle fracture, including

on the day he died. 539 Thus, from his perspective as a clinician, “there was nothing else to do

from a clinical standpoint,” and “no clinical reason…[to] consider post-traumatic diabetes

insipidus as a possible diagnosis.” 540

Moreover, as Dr. Reifschneider explains, the extreme progression of Christopher’s

diabetes insipidus might well have confounded efforts to correctly diagnose him, even if the

lab results had arrived while Arcuri’s resuscitation efforts were still ongoing. According to

Reifschneider, “central diabetes insipidus is seldom encountered in clinical practice outside

of moderate to severe traumatic brain injuries observed in intensive care settings…[and i]t is

even more unusual to encounter a patient whose diabetes insipidus has progressed to the

537
Sussman Aff. ¶22(b), RA1_0586. Dr. Sussman further observes that he has no memory of being made aware
of the reports of Christopher’s stumbling and wobbling in the days prior to his death. RA1_0579. It is also
noteworthy that the copy of the lab report that was provided in discovery (and later admitted into evidence as a
trial exhibit) warns in all caps that “this is not the official result!!!” It was not until 2016, when the defense
obtained a complete copy of the entire hospital record directly from St. Anne’s Hospital, with a release from
Christopher Affonso Sr., that the defense could see that the results listed in the preliminary report that had been
provided to trial counsel were the same as the results listed in the official lab report. Fitzgerald Aff.¶5(f)(i-iii),
RA1_0624. Regardless of the reasons, it is evident that neither trial counsel nor Sussman ever considered the
significance of the lab results.
538
Arcuri Aff. ¶10, RA1_0412-3.
539
Arcuri Aff. ¶8, RA1_0412. In fact, the mother’s report to him was that her son had been “doing well” ever
since he was seen on January 13 for the clavicle fracture. Id. at ¶7.
540
Arcuri Aff. ¶10, RA1_0412-3.

135
degree of this child’s presentation on January 22, 1996.” 541 In his 16 years of practice,

Reifschneider observes, he has “never treated a patient who presented with a sodium level of

183, and there are very few such examples in the literature.” 542 The very fact that

Christopher’s sodium level was so unusually high, because his condition went untreated for

so long due to his mother’s failure to have him seen by medical professionals over the

weekend or on the morning of his death, further contextualizes “why the diagnosis was

previously missed.” 543

For all of these reasons, it is understandable why Dr. Arcuri did not himself identify

PTDI as an explanation for the child’s unexplained collapse: he did not know what had caused

Christopher to go into cardiac arrest, and why the only preliminary impressions he included

in his report were to rule out shaken baby syndrome and internal bleeding. 544 He did,

however, take the additional precaution of flagging the critically abnormal lab results in his

report, in order to “draw the medical examiner’s attention to them.” 545 Yet this evidently did

not cause the medical examiner – or any other of the professionals involved in Christopher’s

death investigation – to focus on the lab results, let alone to consult with an endocrinologist

in order to understand their potential significance. 546 On the contrary, Weiner acknowledged

in his trial testimony that he never even read Arcuri’s medical report. Because Weiner never

541
Reifschneider Aff. ¶7, RA1_0431-2.
542
Id. (emphasis supplied).
543
Id. Dr. Reifschneider further elaborates that “[c]linically, it is worth noting that what makes this case even
more unusual is that no one brought the child to the hospital for observation in the days leading up to his death.
In my opinion, that is unusual because the type of injury that is typically associated with a skull fracture would
ordinarily prompt the concern of the caregiver and lead to hospital observation.” Id. at ¶19 n. 11, RA1_0438.
544
RA2_0104.
545
Arcuri Aff. ¶10, RA1_0412-3.
546
Arcuri Aff. ¶13, RA1_0414 (“I am certain that neither the medical examiner nor any other expert for the
Commonwealth or defense ever contacted me to ask me about my medical report or involvement in the child’s
emergency treatment. Additionally, I have no memory of ever speaking with anyone about the child’s lab results
until now.”).

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learned that Christopher’s lab results were critically abnormal, this information

unquestionably did not factor into his analysis.

Moreover, as explained herein, even if Weiner had reviewed the lab results that Arcuri

flagged, it is unclear whether he would have even known what he was looking at. As recently

as 2022, specialists in the field of endocrinology formed a working group to advocate for

changing the name of this rare diagnosis due to continued widespread lack of familiarity with

diabetes insipidus outside the field of endocrinology. In a position paper supporting the

name change, 547 the authors observed that, even when medical professionals encounter

patients who have already been diagnosed with DI and receive daily doses of synthetic

antidiuretic hormone, when they hear the word “diabetes,” many mistakenly assume they

are dealing with diabetes meletus, to the detriment of patients:

The confusion [of diabetes insipidus] with diabetes mellitus has been to the
detriment of patients with diabetes insipidus when they are under the care of
non-endocrine specialists. Some physicians and nurses do not appreciate the
difference between these two very different disorders. In several patients with
central diabetes insipidus, desmopressin treatment was withheld with serious
adverse outcomes, including death. This has led to high-profile litigation cases
and coroners’ inquests involving the police, with wide media coverage.
Subsequent to these unfortunate but avoidable cases, national safety alerts,
surveys among endocrinologists, and a global taskforce consisting of a wide
range of senior clinicians involved with the care of patients with diabetes
insipidus, have led to a strong impetus to change the name of the condition. 548

The authors go on to describe one particularly dramatic illustration of this problem,

stemming from the 2009 hospital admission for elective hip surgery of a 22-year-old patient

with an underlying diabetes insipidus diagnosis. Although the patient informed the staff of

547
H Arima, et al., Changing the name of diabetes insipidus: a position statement of The Working Group for
Renaming Diabetes Insipidus, 11 Endocr Connect 11(2022). See also M Prentice, Time for change: renaming
diabetes insipidus to improve patient safety, 88 Clinical Endocrinology 625–626 (2018).
548
Id.

137
his diabetes insipidus diagnosis, they erroneously assumed that the condition could be

appropriately monitored with testing of his sugar levels. Over the two-day period following

his admission, the patient became so profoundly dehydrated that at one point he called the

police in desperation, pleading for help and stating, “I am so thirsty and they are not giving

me anything to drink.” Yet when the police arrived, hospital staff merely reassured them that

the patient was receiving appropriate treatment. Because the hospital never administered

his needed hormone medical prescription, the patient ultimately died of a heart attack

caused by his extreme dehydration. By the time he died, 48 hours after his initial hospital

admission, his serum sodium level had risen from 149 mmol/L to 169 mmol/L. 549 The

Coroner’s inquest highlighted the failure of staff to consult with the endocrine team upon the

patient’s admission, noting that what doctors, nurses and pharmacists failed to understand

was that, without his hormone medication prescription (vasopressin), his body was unable

to properly regulate water levels. The concerns articulated in the 2022 position paper

suggest that, even if Weiner had familiarized himself with Arcuri’s hospital report – which he

evidently did not – he might well have dismissed the significance of Christopher’s elevated

sodium levels as invalid.

A further confounding factor stems from Dr. Weiner’s evident reliance on several

prevalent, but erroneous, beliefs among medical and forensic professionals about cases

involving skull fractures accompanied by subdural hematomas. At the time of trial, it was

widely believed that when a child suffered an impact sufficient to produce a skull fracture

and subdural hematoma, that necessarily meant the child had microscopic (e.g. diffuse

axonal) brain injury and that the child could not be lucid (conscious) for any significant

549
For context, Christopher’s serum sodium level was 183 mmol/L.

138
period of time after impact. Although Weiner did not explicitly make this claim, Drs. Ophoven

and Squier are confident that because Weiner found “no evidence of intracranial pressure,”

he ruled out the possibility that the subdural hemorrhage and/or brain swelling caused rapid

unconsciousness and death. They explain that when Weiner “concluded that the blows that

caused the fracture of the skull would have definitely rendered him unconscious, he must

have been assuming that whatever impact caused the skull fracture must have also caused

fatal microscopic brain injury or diffuse damage to axons.” 550 With this as his baseline

assumption, it is highly unlikely that Weiner would have seriously considered whether

Christopher’s collapse and death could be explained by an older, non-acute head trauma. 551

In the intervening years since trial, extensive clinical and biomechanical research

studies have established that pediatric patients can and do suffer skull fractures and

intracranial bleeding without losing consciousness or suffering the kind of brain damage that

triggers immediate coma or cardiac arrest and death. 552 To a large extent, it was this

revelation that formed the crux of Peixoto’s last new trial motion in 2012. 553 Citing an

extensive body of clinical and research studies, the vast majority of which were published

many years after Peixoto’s trial, Dr. Squier observed in her original affidavit that, contrary to

the assertions made by the Commonwealth’s experts at trial, babies or young children “may

550
Ophoven Aff. ¶17(c)(2), RA1_0475; Squier Aff ¶11(d), RA1_0552. To an extent, Dr. Sussman’s advice to trial
counsel appears to have been in line with these same prevalent assumptions. Sussman Aff. ¶17, RA1_0582.
However, Sussman also failed to alert counsel to the fact that for a head injury to render a patient instantly
comatose and dead within minutes – as Weiner opined – it would have to involve damage to the brainstem,
which was not present in this case.
551
Randy Papetti, Chapter 3, The Forensic Unreliability of the Shaken Baby Syndrome (2017). (explaining that in
the 1990’s and even today, in cases where a child is reported to be symptomatic in the hours and days before
collapse, medical experts who subscribe to the SBS/AHT hypothesis often believe that the history is immaterial
given that the injuries would necessarily render the child unresponsive or comatose immediately after shaking
or impact.)
552
J. F. Geddes et al., Neuropathology of inflicted head injury in children, 124 Brain 1290-8 (2001).
553
Attorney Harwood inexplicably chose to frame the issue as one of ineffective assistance of counsel rather
than as newly discovered evidence.

139
suffer a serious head injury – like here – and experience extended lucid periods

afterwards.” 554 Squier went on in that affidavit to highlight a research series published in

2002 indicating that traumatic head injury associated with subdural hemorrhage does not

necessarily produce immediate symptoms. 555 As she pointed out, this insight unquestionably

cast doubt on the baseline presumption that Christopher would have necessarily lost

consciousness and/or been rendered comatose immediately after impact, yet researchers

had only begun to examine this issue at the time of trial. In this way, the evolution of

scientific understanding of lucidity further contextualizes Dr. Weiner’s failure to consider

whether any non-acute head trauma – such as a days old head impact that triggered the onset

of post-traumatic diabetes insipidus – could explain Christopher’s collapse and death.

For all of the above reasons, the evidence of Christopher’s PTDI diagnosis satisfies the

first prong of the newly discovered evidence test. To the extent this court finds that prior

post-conviction counsel could have developed evidence of this diagnosis, this Court should

nevertheless consider the newly presented diagnosis under the confluence of factors analysis

articulated in Epps. 474 Mass. at 767. As discussed in greater detail infra, the Epps court

found that the defendant was deprived of a substantial ground of defense by the confluence

of counsel’s failure to secure an appropriate expert at trial and evolving scientific research on

shaken baby syndrome that was available at the time of trial but not developed by counsel.

The Court there emphasized that where a defendant is deprived of a substantial ground of

defense, a new trial is required “regardless of whether the cause of the deprivation is

554
Squier 2012 Aff. ¶¶9-15, RA1_0340-3.
555
KB Arbogast, et al., Initial neurologic presentation in young children sustaining inflicted and unintentional
fatal head injuries, 116 Pediatrics 1 at 180-4 (2005).

140
counsel’s performance alone, or the inability to make use of relevant new research findings

alone, or the confluence of the two.” Id.

2. The PTDI diagnosis “casts real doubt” on the conviction

Peixoto also readily satisfies the second prong of the newly discovered evidence test.

The foundational assumption of the Commonwealth’s case – which the defense accepted as

uncontroverted fact – was that Christopher suffered a fatal head impact that had to have

been inflicted during the narrow window of time immediately prior to his basement collapse.

The diagnosis of PTDI definitively establishes that whatever traumatic impact triggered the

onset of Christopher’s metabolic disorder, it “absolutely did not and could not have

happened within the window of time alleged by the Commonwealth,” and “had to have

occurred day(s) prior to death.” 556 As Dr. Reifschneider plainly states, the “medical and

autopsy records directly conflict with, and are scientifically incompatible with, the

Commonwealth’s theory… [that] the child suffered a fatal basilar skull fracture within one

hour of his death.” 557 While Christopher indisputably did suffer a traumatic head impact – as

evidenced by his skull fracture – it is now clear that that impact also damaged either his

pituitary or hypothalamus, the two organs responsible for regulating water balance. 558 Even

more importantly, it is clear – from the advanced state of his hypernatremic dehydration at

the time of death – that that impact had to have happened “at least days prior to his death.” 559

Moreover, contrary to Dr. Weiner’s baseline presumption, in his cause of death analysis,

Christopher was not a healthy, well-cared for child up until the moment of his collapse. He

556
Reifschneider Aff. ¶5, RA1_0430-1.
557
Id.
558
Reifschneider Aff. ¶18, RA1_0437-8 .
559
Ophoven Aff. ¶6-7, RA1_0453.

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was a victim of neglect by a mother who for reasons known only to herself declined to seek

out medical treatment in the days leading up to his death despite being well aware of

numerous warning signs that he was not well, then lied to the jury to cover up for that ill-

fated decision.

The new PTDI diagnosis also casts doubt on the justice of the conviction because,

unlike the Commonwealth’s trial evidence on the timing and cause of Christopher’s death or

any of the post-conviction expert affidavits filed in support of Peixoto’s 2012 new trial

motion, the new diagnosis harmonizes the absence of any of the typical medical findings that

would “interfere with vital signs and lead to cardiac arrest” 560 – such as severe increased

intracranial pressure, severe cerebral edema, large volume subdural hematoma, or damage

to the brain stem – with the presence of many previously unexplained warning signs that

Christopher’s health had actually been declining for several days prior to his collapse and

death.

● It explains why, according to both Sneed and Peixoto, Christopher’s lips were dry,
cracked and bleeding in the days leading up to death.

● It explains why multiple daycare workers expressed concern about what they saw
when they first met Christopher four days before he died, why they pulled Sneed
aside to ask her about Christopher’s condition, and why they asked the nurse to
examine his forehead the following day despite Sneed’s attribution of that injury
to a ten-day-old fall.

● It explains why Christopher was wobbly and acting drunk throughout the
weekend before his death. It explains why, on the morning that he died,
Christopher was so lethargic that he could not stay awake on the short ride to
daycare and why Sneed decided not to send him to daycare that day.

● It explains his recent onset of urinary incontinence.

560
As Ophoven explains, “[w]hen evaluating head injury, it is important to identify the presence or absence of
findings that would interfere with vital signs and lead to cardiac arrest, such as severe increased intracranial
pressure, severe cerebral edema, large volume SDH, or damage to the brain stem,” none of which were present
in this case. Ophoven Aff. ¶18, RA1_0476-7.

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 ● It explains why EMT Legendre’s immediate impression was that Christopher
appeared profoundly dehydrated, so much so that decades later, he still vividly
recalled checking the diaper to see if it was wet or dry.

● It explains Legendre’s and Arcuri’s overarching impression that Christopher

appeared to be a chronic abuse victim, not someone who had just had his head
violently and repeatedly slammed against a wall, floor, or other hard flat surface.

● It explains why Tarissa told police that nobody hurt Christopher, and that he
wouldn’t wake up.

● It explains why Tarissa merely said “my brother is sick” and did not run out of the
room in terror.

● It explains why the “crime scene” photographs do not depict a state of disarray or
violent struggle.

● It explains Christopher’s abrupt collapse and seizures on the night he died.

● It explains his death.

Most importantly, the PTDI diagnosis explains and confirms what Peixoto has always

steadfastly maintained: that there was already something wrong with Christopher before

Tarissa called out to say that he was throwing up, and before either Peixoto or Sneed

responded to her call, and that there is every reason to believe that Christopher was having a

seizure that night, because not only are seizures a well-known symptom of subdural bleeding

(despite Newberger’s claims to the contrary), but they are also closely associated with severe

electrolyte disturbances such as those caused by PTDI.

One need look no further than trial counsel’s post-conviction affidavit to appreciate

just how impactful the PTDI diagnosis would have been, had it been known to him at the time

of trial. As Attorney Veary unequivocally states, this diagnosis:

…would have had a pivotal effect upon the defense…[It] would have completely
upset the Commonwealth’s timeline and theory about how the child
died…opening a host of opportunities seemingly not earlier available. For
example, I could have invited the jury to question the spatial and temporal

143
 confinements of the Commonwealth’s theory of the case right at the outset of
the case. I could also have taken full opportunity, during my cross-examination
of Drs. Weiner and Newberger, to get each to admit that they concluded and
pronounced in writing for all to see – including the police and prosecutors –
that Christopher died of multiple blunt-force injuries inflicted on the night he
died without ever considering or attempting to explain the child’s critical lab
results. Additionally, I could have cross-examined the Commonwealth’s experts
with their failure to explain or even consider why Christopher was exhibiting
symptoms of an altered mental state (wobbly, acting drunk) for several days
prior to his collapse. To the extent that I could have found an expert with the
requisite knowledge of post-traumatic diabetes insipidus at the time of trial, I
could also have put that expert on my witness list and presented their
testimony to establish that Christopher’s condition and symptoms were
consistent with that diagnosis. 561

The exculpatory value of the new diagnosis is further strengthened by the fuller findings of

Drs. Ophoven, Squier and Van Ee, who together conducted a comprehensive, independent,

multi-disciplinary review of the Commonwealth’s entire death investigation. Their review

cumulatively debunks each and every other facet of the Commonwealth’s expert testimony

on the timing and mechanism of Christopher’s fatal injuries. It establishes that there is no

evidence at all of the type of fatal injury to the brain substance that would necessarily have

rendered Christopher instantaneously comatose or caused him to go into cardiac arrest. It

invalidates the Commonwealth’s claims that Christopher’s skull fracture and subdural

bleeding could be timed to within minutes of his collapse and death, that the fracture and

subdural bleeding necessarily involved “massive force,” that they necessarily required

“multiple” impacts, or even that these injuries were necessarily inflicted. Moreover, as

outlined in Part B, it also invalidates the Commonwealth’s overarching theory that the “vast

majority of Christopher’s bruises'' occurred at or about the time of death, in the course of a

single, violent assault.

561
Veary Aff. ¶¶12-13, RA1_0594.

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 Collectively, these revelations turn the Commonwealth’s investigation and trial

strategies completely on its head. They explain why it was entirely reasonable that Peixoto

was not focused on explaining exactly where he was in the moments right before

Christopher’s collapse, because – just like the police – he had no reason to believe that those

moments were especially relevant to how Christopher died. They explain why, in retrospect,

the parties’ focus at trial on establishing which one of these two adults was alone with

Christopher in the moments before he collapsed was completely misplaced. And they

demonstrate that Peixoto’s explanation at trial for why he did not mention going to the

bathroom – that he did not believe it was an important detail – is completely reasonable, and

that the Commonwealth’s deceptive and misleading efforts at trial to frame his statements to

police as an “admission” to being alone with Christopher in the basement is irrelevant to the

question of what happened to cause his death.

The post-conviction analysis by Drs. Ophoven and Squier also exposes several

fundamental, but previously unchallenged, features of the Commonwealth’s evidence of

Christopher’s cause of death. First, it establishes that Dr. Newberger and Dr. Weiner did not

agree on the cause of death, and that Newberger’s theory – that Christopher died of a

crushing brain injury due to massive bleeding and swelling – was definitively ruled out by the

autopsy and neuropathology findings. Second, it makes clear that Dr. Weiner’s opinion on the

cause of death – that Christopher must have died of invisible microscopic brain injury – was

based in large part on the absence of any other explanation for the child’s sudden collapse

and death, rather than on the presence of any affirmative evidence of brain damage that

explained his death. And third, it reveals that Dr. Weiner’s autopsy examination was grossly

inadequate, and that due to his own myopic belief about the timing of Christopher’s fatal

145
head impact, he and other specialists failed to collect essential data, such as bone tissue, that

might have shed additional light on Christopher’s condition and the timing of his injuries. 562

Yet the jury never learned about the diametrical conflict between Weiner and

Newberger’s opinions on the cause of death, nor did they learn about the actual basis for Dr.

Weiner’s opinion or the deficiencies in the medico-legal investigation. Even worse, it was

Newberger’s flawed and erroneous testimony that ultimately supplied the prevailing

narrative of what “really” happened:

● At trial, the prosecutor filtered all of the key medical and autopsy findings through
the lens of Newberger’s testimony, presenting him first in the order of her expert
witnesses and then failing to adduce Dr. Weiner’s conflicting opinion on the child’s
cause of death when he took the stand the next day.

● On direct appeal, Peixoto’s own lawyer, Dana Curhan – evidently unaware of any
conflict between Newberger and Weiner – wrote that “[t]he injuries to the skull
crushed the brain and would have rendered him comatose almost immediately”
and “hemorrhaging of the brain ultimately caused his death.” 563

● In denying Peixoto’s first new trial motion, the trial judge stated that “[t]he jury
chose not to believe the defendant’s account primarily because it failed to explain
the severity of Christopher’s crushing head injuries or the bruises on nearly
every other part of his body.” 564

● A full ten years later, in denying Peixoto’s third new trial motion, the trial judge
reiterated this same understanding of the facts, stating that in Newberger’s
opinion, what killed Christopher was “recent trauma to the head [that] caused
hemorrhage over and within the brain and injur[ed] the brain (part of the
central nervous system)” and “Dr. Weiner had the same opinion.” 565

As the above examples illustrate, neither the parties nor the court perceived the

Newberger/Weiner conflict, so fundamentally, how could the jury? In these ways, the insights

revealed by Drs. Ophoven and Squier strike at the very core of the Commonwealth’s theory

562
For a discussion of the tests which were not conducted but which could have established whether the
fracture was new or days old, see supra at 114.
563
RA1_0106-7.
564
RA1_0041.
565
RA1_0062.

146
about Christopher’s cause of death, and they would unquestionably have factored into the

jury’s deliberations.

B. A confluence of evolving scientific research repudiating bruise coloration to age

bruises and deficient performance by prior counsel in not challenging the
reliability of Dr. Newberger’s testimony or investigating the adequacy of the
autopsy procedure, including by securing an independent microscopic
examination of the autopsy slides, demonstrates that justice may not have been
done.

In addition to the newly discovered medical diagnosis, a confluence of other factors

related to the scientific evidence presented at trial further underscores and demonstrates

that justice may not have been done. First, the post-trial repudiation of bruise coloration as a

reliable basis to age bruises – which formed the crux of Dr. Newberger’s testimony on this

issue – constitutes newly discovered evidence that would probably have been a real factor in

the jury’s deliberation. Second, prior counsel’s failure to investigate the validity and accuracy

of Newberger’s testimony in many other key respects deprived Peixoto of a substantial

ground of defense. Third, prior counsel’s failure to investigate the adequacy of Dr. Weiner’s

autopsy procedure, including by securing an independent examination of the tissue slides

that collected at autopsy, deprived Peixoto of a substantial ground of defense.

1. The post-trial repudiation of bruise coloration as a reliable basis to date bruises

constitutes newly discovered evidence that would probably have been a real
factor in the jury’s deliberations.

Scientific shifts in bruise interpretation powerfully invalidate the testimony by Drs.

Newberger and Weiner that the “vast majority of Christopher’s bruises” occurred at or about

the time of death, in the course of a single, traumatic assault. As described in greater detail

supra, Newberger arrived at his opinion about this issue based solely on his naked eye

observation of the hospital and autopsy photographs he reviewed. He confidently asserted

that the ”great number of [Christopher’s] bruises were blue, red and purple,“ which told him

147
that they were obtained “very recently.” He also claimed to be able to discern multiple impact

sites within several of the bruises, based solely on the variation of color seen within the

photographic images, and he insisted that in some areas of Christopher’s body he could tell

that there were new bruises layered over older bruises.

The fundamental premise of Newberger’s opinion on the age of Christopher’s bruises

– that it was possible to reliably age bruises based on naked eye observation of their color

and appearance – was very much in line with contemporaneous practice norms. 566 Indeed,

Dr. Arcuri and EMT Legendre also relied on naked eye assessments of the color and

appearance of Christopher’s bruises, and Arcuri has since expressly acknowledged that, “[a]t

the time of my involvement in this case, the medical community routinely relied on color to

date or age bruises.” 567 While histologic microscopy was available at the time of trial, and

ostensibly provided the basis for Dr. Weiner’s opinions on the age of Christopher’s bruises, it

was still widely believed at that time that age-dating of bruises can be determined by looking

at the color of the bruise. Contemporaneous textbooks classically “suggested that bruises

undergo a clearly defined course of color changes with age.” 568 For example, a twenty-eight

page “portable guide to investigating child abuse” published by the Office of Juvenile Justice

and Delinquency Prevention of the Department of Justice in 1996 instructs:

It is important to determine the age of bruises to see if their ages are consistent
with the caretaker’s explanation of the times of injury. Age dating of bruises
can often be determined by looking at the color of the bruise. The ages and
colors of bruises may therefore show if more than one injury is present. Table
1 shows the ages associated with the colors of bruises. 569

566
Langlois, The science behind the quest to determine the age of bruises – a review of the English language
literature, 3 Forensic Sci. Med. Pathol. 241-251 at 242 (2007). (“Observation of a bruise, either directly or from a
photograph, has been the traditional method by which the age of a bruise may be estimated.”)
567
Arcuri Aff. ¶12(b), RA1_0413-14 (emphasis supplied).
568
E. Bariciak, Dating of Bruising in Children: An Assessment of Physician Accuracy,112 Pediatrics 4 (2003).
569
Office of Juvenile Justice and Delinquency Prevention, Recognizing When A Child’s Injury is Caused by Abuse,
Dep’t of Justice at 5 (1996).

148
 TABLE ONE:
Color of bruise Age of bruise
Red (swollen, tender) 0-2 days
Blue, purple 2-5 days
Green 5-7 days
Yellow 7-10 days
Brown 10-14 days
No further evidence of bruising 2-4 weeks

In keeping with this guidance, it was not uncommon for medical professionals and even

many forensic pathologists to render an opinion on the age of a bruise based largely or

entirely on the visual appearance of the bruise itself, even in cases where histologic slides were

made and available for expert analysis, as occurred here. 570

In the years surrounding Peixoto’s trial, scientists had just begun to investigate the

reliability of bruise color as a basis for aging bruises. Two studies, published in 1991 and

1996, expressly cautioned against practitioners stating that a particular bruise is “consistent

with” a particular age based solely on its color; these studies concluded that the age of

bruises cannot be determined consistently from color alone, and that color is a far less

precise proxy for bruise age than suggested by pathology textbooks. 571 There was also an

emerging recognition of the unreliability of using photographic evidence of bruise color to

570
Indeed, when Dr. Weiner testified at the PCH about his opinion about the age of Christopher’s bruises, he still
had not examined the tissue slides under the microscope, making clear that his opinion was based primarily on
a naked-eye assessment, rather than on what he saw under the microscope. PCH 18-20.
571
NE Langlois, et al., The aging of bruises: a review and study of the colour changes with time, 50 Forensic Sci
Int. 227-238 (1991); T Stephenson, et al., Estimation of the age of bruising, 74 Arch Dis Child 53-55 (1996);
(finding that with the exception of the yellow bruise,which may be considered to be more than 18 hours old,
coloration of bruises in progress and changes in color patterns cannot be used to time an injury, and cautioning
that, “[e]ven for the practitioner to state...that a particular bruise is ‘consistent with’ a particular age [based on
color] implies a level of certainty not supported by the literature.”) It bears noting that Dr. Arcuri and EMT
Legendre both relied in large part on the presence of yellow bruises as evidence of older bruising, and that
yellow was the only color considered to be reliably associated with older (18 hours or more) bruising.

149
assess age, with more than one contemporaneous study emphasizing that estimation of

bruise age from color photographs is imprecise and should not be relied upon. 572

Nevertheless, the foundational premise of Newberger’s testimony about bruises – that “[t]he

coloration of the bruises over a period of time gives you a reasonably precise estimate of

their ages,” and that it was permissible to make a naked eye assessment of bruise color on

the basis of photographic evidence – was very much in line with then-prevailing norms. As

Dr. Ophoven explains in her supplemental affidavit, while it is now widely accepted that

“predicting a bruise’s age based on its color and appearance to the naked eye is no more

accurate than chance…it was not until the beginning of the 21st Century…that the known or

potential error rate” 573 was well understood. Moreover, “industry-wide acceptance of this

research did not come about until well after Peixoto’s trial, through the proliferation of

scholarly, peer-reviewed articles of research and meta-analyses challenging – and ultimately

invalidating – the practice of estimating a bruise’s age by solely relying upon its color to the

naked eye.”

Indeed, in Dr. Ophoven’s opinion, the repudiation of aging of bruises by color was not

clearly reflected within the relevant forensic pathology community until at least 2005, with

the publication of the first comprehensive meta-analysis by Maguire. 574 She further

emphasizes that this repudiation by the scientific community was not acknowledged by the

572
Stephenson & Bialas, supra (cautioning against estimation of bruise age from color photographs because
“[p]hotographs of a bruise … depending on available light and technique, may not represent color accurately. A
standard color wheel in the photograph may help,” and the author observes that “[r]etrospective opinions on
the age of injuries from photographs may be less reliable than a contemporaneous opinion from an experienced
paediatrician, particularly since the eye witness may see other clues to age such as abrasions and swelling.” See
also AJ Schwartz, et al., How accurately can bruises be aged in abused children? 97 Pediatrics 254-257 (1996).
573
Ophoven Supp. Aff. ¶5(d), RA1_0502-3.
574
Maguire, et al., Can you age bruises accurately in children? A Systematic Review, 90 Archives of Disease in
Childhood 2 at 187-189 (2005).

150
law enforcement and prosecution communities until much later, in 2014, when the

Department of Justice formally retracted its earlier guidance on aging of bruises 575 and

acknowledged in writing that:

[n]o one can precisely assess the age of bruises based on their color. Even
physicians do not agree on how to determine the age of a bruise by its color,
and their predictions of age are no more accurate than chance because the
color changes that occur as a bruise heals are not as predictable as once
thought, and may not provide an accurate timeline of injury. In fact, color
changes are quite variable. The earliest color (yellow) is seen about 18 hours
after onset; red, blue, purple, and black can be seen any time from onset to
resolution. Bruises sustained at the same time on different parts of the
person’s body may also change color at different rates. Thus, the investigation
should not rely on opinions that assign an age to bruises. 576

As Dr. Ophoven observes, the formal repudiation by the DOJ of the practice of aging bruises

by color “mirrors the advancement and transformations in the field of pediatric forensic

pathology regarding what practices are now scientifically acceptable.” 577

Additionally, scholarly research criticizing Newberger’s method of interpreting the

color variation within bruises to establish multiple impact points and the presence of older

bruises overlaid with newer ones did not fully emerge until well after his trial testimony. For

example, a 2002 study by Munang et al found that age estimations based on bruise coloration

can be further confounded by the fact that many bruises exhibit multiple colors at the same

site despite being caused at the same time. 578 Where Newberger confidently asserted, based

on the variation of color present within an area of bruising, that there were actually multiple

impact sites within that bruise area, the Munang study and others like it that were published

575
Recognizing When a Child’s Injury or Illness Is Caused by Abuse, DOJ Office of Juvenile Justice and Delinquency
Prevention (1996-2002).
576
Id. at 7.
577
Ophoven Supp. Aff. ¶5(e), RA1_0503.
578
L.A. Munang, et al., Lack of agreement on colour description between clinicians examining childhood
bruising, 9 Journal of Clinical Forensic Medicine 4, 171-174 (2002).

151
conclusively invalidate Newberger’s testimony on this point. Yet his testimony was aligned

on this point with the state of the science at the time of trial.

Where it was still accepted practice at the time of trial to rely on bruise color as

evidence of age, it is reasonable to infer that trial counsel would not have had the tools to

challenge Newberger’s testimony on this issue. After all, there was no “pre-existing debate”

or established challenge “already present in legal and scientific circles.” Commonwealth v.

Schuman, 445 Mass. 268, 175-176 (2005); Commonwealth v. LeFave, 430 Mass. 169, 181

(1999). For these reasons, trial counsel cannot be faulted for failing to develop this issue in

his examination of Newberger, Rosario, 477 Mass. at 79, and the shift in scientific

understanding on the reliability of color to age bruises is unquestionably “new.” Moreover, as

discussed infra, the Commonwealth’s pre-trial notice of Newberger’s testimony did not make

a single reference to his reliance on color as the basis for aging Christopher’s bruises. Thus

even if trial counsel had been aware of the emerging scientific controversy about the

reliability of this technique, he would have had no way of anticipating the need for cross-

examination on this topic.

However, given the complete post-trial repudiation of Newberger’s methodology by

the relevant scientific community, it is self-evident that his testimony on the age of

Christopher’s bruises would be inadmissible were the case to be retried today.

Commonwealth v. Cowels, 470 Mass. 607, 617-18 (2015) (granting relief where the newly

discovered evidence would remove from the jury’s consideration evidence admitted at the

original trial). See also Commonwealth v. Lykus, 451 Mass. 310, 330-331 (NAS report

invalidating voice spectrography and bullet analysis techniques such as those presented at

trial constituted “newly discovered evidence”). One need look no further than the trial

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judge’s summary of the evidence of Christopher’s injuries in his decision on Peixoto’s 2012

new trial motion to appreciate the importance of Newberger’s now-repudiated testimony:

At the time of his death, Christopher had a large number of injuries widely
distributed on his body (citing Weiner and Newberger). Christopher had both
old and new injuries (citing Newberger). Most of the bruises on Christopher’s
body were blue, red and purple, meaning that they were obtained very
recently (citing Newberger). There were also older bruises based on their
brown, grey or green color (citing Newberger). 579

The exclusion of Newberger’s testimony on the age of Christopher’s bruises would remove a

key feature of the Commonwealth’s case from the jury’s consideration, one that the trial

judge himself clearly found to be persuasive. For all of these reasons, it is clear that the

repudiation of coloration as a reliable basis to age bruises constitutes newly available

evidence that would probably have been a real factor in the jury’s deliberations.

2. Prior counsel deprived Mr. Peixoto of an available ground of defense by failing to

investigate the validity and accuracy of Dr. Newberger’s testimony and to discover
that many of the most significant aspects of his testimony were demonstrably false
and/or scientifically invalid even applying contemporaneous scientific norms.

The prejudice resulting from the admission of Dr. Newberger’s now-repudiated

testimony on bruise age was undeniably compounded by the failure of Peixoto’s prior

attorneys to investigate the veracity and scientific reliability of Newberger’s testimony as a

whole. To prevail on a claim of ineffective assistance of counsel, a defendant must show two

things: (1) that there has been a “serious incompetency, inefficiency, or inattention of

counsel – behavior of counsel falling measurably below that which might be expected from

an ordinary fallible lawyer;” and (2) that counsel’s poor performance “likely deprived the

defendant of an otherwise available, substantial ground of defense.” Saferian, 366 Mass. at

96. The question is not whether the case against the defendant “is a strong one,” but whether

579
RA1_0060.

153
an effective attorney’s “better work might have accomplished something meaningful for the

defense.” Alcide, 472 Mass. at 151 (granting new trial for failing to investigate, discover, and

present exculpatory evidence of an alternative perpetrator). Unless the court is

“substantially confident” that the jury would have returned the same verdict with or without

effective counsel, a new trial is required. Commonwealth v. Sena, 429 Mass. 590, 595 (1999).

The right to effective assistance of counsel includes the right to counsel that

independently investigates the case and comes to trial adequately prepared. See

Commonwealth v. Ly, 454 Mass. 223, 229 (2009) (granting new trial for failure to obtain

records for impeachment); Commonwealth v. Baran, 74 Mass. App. Ct. 256, 274 (2009)

(granting new trial where counsel’s failure to investigate and prepare adequately was

exacerbated by counsel’s “failure to master the materials the Commonwealth had provided to

him”); Commonwealth v. Haggerty, 400 Mass. 437, 441 (1987) (granting new trial due to

counsel’s “failure to investigate fully and pursue” defense raised at trial); Commonwealth v.

Garcia, 66 Mass. App. Ct. 167, 171 (2006) (granting new trial for failure to interview and call

a witness). “Defense counsel has a professional obligation to investigate all potentially

substantial defenses,” Epps, 474 Mass. at 758, and a defendant is deprived of a fair trial when

counsel fails to “investigate and develop the evidence” and fails to “challenge important

inculpatory evidence of questionable reliability.” Alcide, 474 Mass. at 160. Moreover, even

where counsel has investigated properly, “counsel’s failure to pursue some obviously

powerful form of impeachment available at trial” can constitute ineffective assistance.

Commonwealth vs. Cox-Bush, Docket No. 14-P-1888, Rule 1:28 opinion (Jan. 6, 2017) (citing

Commonwealth v. Fisher, 433 Mass. 340, 357 (2001)). Moreover, when a defendant alleges

that he was deprived of a substantial ground of defense by the failure of appellate or post-

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conviction counsel to develop favorable evidence, “ineffectiveness is presumed if the

attorney’s omission created a substantial risk [of a miscarriage of justice], and disregarded if

it did not.” Commonwealth v. Randolph, 438 Mass. 290, 295-96 (2002).

a. Deficient performance by trial counsel.

As a preliminary matter, it must be acknowledged that trial counsel’s ability to

investigate and challenge Dr. Newberger’s testimony was unquestionably hindered by the

prosecutor’s delay in providing timely notice of her intent to call Newberger, as well as by

the inadequacies in the scope of expert notice she provided. As of January 6, 1997, the date

that trial was scheduled to commence with Attorney Garth as counsel, the Commonwealth

had not yet given any notice of its intent to call a second expert. When Attorney Garth moved

to withdraw on that date, the Commonwealth vigorously objected on the grounds that this

would unduly delay the trial. Garth was permitted to withdraw, and Veary to enter an

appearance, with the express understanding that the case proceed to trial within 60 days.

Knowing that new counsel was already constrained by the extraordinarily tight schedule set

by the trial judge, the Commonwealth waited until February 27, 1997 – one business day

before trial – before disclosing Newberger’s February 18, 1997 report.

Moreover, the report itself provided precious little detail about the substance of

Newberger’s intended testimony. Although it nominally placed the defense on notice of his

opinion that Christopher was a victim of chronic abuse, as well as his opinion that he suffered

an acute assault shortly before arriving at the hospital, Newberger’s report failed to explain

with any specificity the factual basis for these opinions. As pertained to his opinions about

Christopher’s bruising, the report did not in any way alert trial counsel to the fact that

Newberger was relying exclusively on the color of the bruises as depicted in the autopsy

155
photographs as the basis for his opinion about their age. It also failed to alert trial counsel

that, in his opinion, it was possible to discern based solely on those photographs – and

without any documentation of supportive findings by the medical examiner who actually

observed Christopher’s body in person – all of the following:

● That there was an “impact point” and what appeared to him to be evidence of
“focused trauma” directed toward Christopher’s left eye.

● That there were multiple impact points within the bruises on Christopher’s
forehead and left shoulder/ scapula.

● That there was a pattern of finger-shaped bruising on both of Christopher’s upper

arms, consistent with grab marks.

● That there were multiple impact points and an extensive area of bruising inside
Christopher’s lower lip, which "derived from trauma of being struck from the
outside with pressure directly over the teeth" and "didn't come from the child
biting himself." 580

● That there was swelling and hemorrhaging on the shaft of Christopher’s penis, and
that when incised it showed a substantial collection of blood.

● That “Dr. Weiner described” a line-shaped injury to the penis, which Newberger
discerned to be older due to its color.

As noted supra, the above assertions substantially exaggerated or falsified Weiner’s autopsy

findings, yet trial counsel would have had no way of knowing in advance of trial that

Newberger held these opinions. Even more significantly, Newberger’s report failed to put the

defense on notice of any of the following areas of testimony related to the cause of death, all

of which are shown by the instant motion to be false, scientifically invalid, or both:

● His demonstrably false assertion that Christopher’s brain was “massively swollen,”
which directly conflicted with the findings of the medical examiner and
neuropathologist.

● His demonstrably false assertion that Christopher’s death was caused by a huge
amount of bleeding in the area around the brain and a “great deal” of brain

580
His pre-trial report stated only that there were “injuries to Christopher’s lips.” RA1_0766.

156
 swelling, which together caused a significant rise in intracranial pressure
sufficient to “crush” the brain within the skull vault. This directly conflicted with
the medical examiner’s finding that “there is no evidence of increased intracranial
pressure.” It was also flatly contradicted by the neuropathologist’s finding of only
“slight” brain swelling, no herniation, and by the actual, measured weight of the
brain at autopsy (1280 g), which was within normal limits for a three year-old
male child. 581

● His claim that the presence of a crushing brain injury proves that the head trauma
happened within minutes of his collapse and death, 582 which as trial counsel’s own
expert (Dr. Sussman) has pointed out is not only unsupported by the physical
evidence, but scientifically invalid.

● His demonstrably false assertion that there was massive swelling on the back of
Christopher’s head, just above the hairline.

● His demonstrably false assertion that “Dr. Weiner found” that the greatest number
of traumatic impacts were “just above the hairline on the back of Christopher’s
head, directly over a massive skull fracture.

Trial counsel could have taken steps to mitigate the prejudice caused by the

Commonwealth’s late, inadequate discovery notice of Newberger’s testimony. He could have

moved for a continuance, although doing so would inevitably have met with vigorous

objection, and the court’s already articulated determination to proceed to trial with alacrity.

He could have requested a pre-trial voir dire of Newberger to flesh out the substance of his

anticipated testimony, and/or objected to any testimony that exceeded the scope of the pre-

trial notice. Additionally, he could have arranged for Dr. Sussman to attend the portion of the

trial when Newberger testified, in order to advise him of areas of potential cross-

examination. Any or all of these steps could have positioned him to mitigate the undeniable

prejudice of Newberger’s false and misleading testimony at the trial. However, any

581
His pre-trial report, by contrast, stated that the "cause of death was attributable to extensive injuries to the
central nervous system." RA1_0766.
582
His pre-trial report stated only that the “assault occurred shortly before his being brought to St. Anne’s
Hospital,” without specifying the basis for this opinion. RA1_0766.

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evaluation of trial counsel’s performance must acknowledge the Commonwealth’s

substantial contributing role in creating these deficiencies. 583

b. Deficient performance by appellate and post-conviction counsel.

Appellate and post-conviction counsel, by contrast, have no such excuse for the

deficiencies in their performance. As an initial matter, it is evident that none of Peixoto’s

prior post-conviction attorneys developed the necessary mastery of the medical evidence to

investigate whether there was a scientific basis to challenge Peixoto’s conviction. None took

even the most basic steps of obtaining and reviewing copies of the medical and autopsy

records, let alone attempting to secure broader access to the photographs, tissue samples, X-

rays and other evidence collected at autopsy, as counsel in the instant motion have now

done. As a result, they lacked the most basic tools to assess whether Newberger accurately

summarized Weiner’s autopsy findings, which he did not, whether he fairly characterized the

photographs of Christopher’s body that he was shown at trial, which he did not, and whether

his opinion on the cause of death was in accord with Weiner’s, which it was not.

Moreover, neither Attorney Curhan nor Attorney Schubert even considered securing

the assistance of an independent expert to review the materials that they did have –

including Newberger’s trial testimony – to assess its accuracy and scientific validity. Curhan’s

only explanation for this failure is that he did not believe anything material could be

accomplished by investigating the medical evidence or consulting with an expert, because

there was no basis to dispute the Commonwealth’s theory about the timeline of when

583
In a separately filed Motion for Post-Conviction Discovery, Peixoto seeks access to any and all
correspondence, notes, reports or documentation pertaining to the prosecutor’s pretrial consultation with
Newberger.

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Christopher’s injuries occurred. 584 Schubert’s explanation is that he held Sussman in such

high regard that he saw “no reason to question Attorney Veary’s reliance on Dr. Sussman’s

opinion” or to independently “question the validity of the medical evidence or to conduct any

further fact investigation.” 585 However, as Sussman himself has now made clear, had either

one of these lawyers bothered to contact him about Newberger’s testimony, he would have

advised them that Newberger’s explanation for the cause of death – that there was “a

massive rise in intracranial pressure caused by a large subdural hematoma and brain

swelling” – was not supported by the underlying medical evidence, and cannot occur

instantaneously, as Newberger confidently claimed at trial. 586

Moreover, Curhan’s stated pessimism about whether there was any possible basis to

challenge the Commonwealth’s timeline for the cause of death does not explain his failure to

investigate the details of Newberger’s trial testimony that pertained to the issue of extreme

atrocity or cruelty (“EAC”). After all, Newberger was the lynchpin of the Commonwealth’s

proof of EAC, and unlike trial counsel – who was hampered by the lack of specificity in the

Commonwealth’s pre-trial expert notice – Curhan could have scrutinized Newberger’s

testimony and compared it to the testimony and reports of Arcuri and Weiner. Curhan

acknowledges that, “if he had known” that an expert reviewing Newberger’s testimony would

find the types of disparities between Newberger’s testimony and that of Weiner that have

been identified by Ophoven and Squier in the instant litigation, he would certainly have

pursued this line of investigation. He also states that, “if he had known” that an expert

584
Curhan Aff. ¶12, RA1_0598-9.
585
Schubert Aff. ¶7, RA1_0606.
586
Sussman Aff. ¶18(d), RA1_0583. It would appear that neither lawyer compared Newberger’s report with his
trial testimony to gauge what Dr. Sussman could have provided trial counsel, given his lack of advance notice
about the vast majority of what Newbnerger would actually testify to.

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reviewing Newberger’s testimony would find that he had affirmatively mischaracterized the

medical evidence and key findings in the ways that Ophoven and Squier now describe, he

would have pursued this line of investigation. Yet he took no steps at all to master the then-

existing medical and autopsy records and compare them to Newberger’s testimony. To make

matters even worse, his appellate brief affirmatively adopted several of the false statements

made by Newberger at trial, including Newberger’s false claim that Christopher’s brain was

crushed within the skull, 587 his false claim that Weiner found a combination of new and older

injuries to Christopher’s penis, 588 and his false claim that Christopher suffered impact

injuries and swelling to the lips. 589

Attorney Schubert’s stated explanations for his total neglect of the medical issues in

the case are equally baffling and unavailing. While Schubert expresses “surprise” that neither

Veary nor Curhan took available steps to evaluate Newberger’s testimony, he could readily

have learned of these omissions had he taken the time to speak with Veary or Curhan in the

course of preparing Peixoto’s motion for a new trial. Having now reviewed Sussman’s post-

conviction critique of several aspects of the Commonwealth’s medical evidence, Schubert

acknowledges that it would have been extremely helpful to consult with Sussman and that it

“could have made a tremendous difference in the outcome of the case.” 590 Yet he took no

more steps than did Curhan to evaluate whether there was any basis to challenge

Newberger’s critically important testimony.

587
RA1_0106.
588
RA1_0105.
589
Id.
590
Schubert Aff. ¶24, RA1_0610.

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 While Attorney Harwood at least nominally sought to challenge the medical case in

his 2012 new trial motion, his efforts also fell far short of what was necessary to obtain the

mastery of the underlying medical record, as outlined in more detail supra at 96-100. Like

predecessor counsel, he too failed to secure copies of the pediatric and hospital records.

While he did obtain a copy of the autopsy records that had been provided prior to trial, he

made no independent effort to secure fuller access to the OCME file, including the additional

autopsy photographs, tissue slides, brain slides, X-rays, or other underlying data. He also

failed to seek access to the fuller set of the photographs taken by the state police at the

hospital and autopsy that present counsel was able to secure. Perhaps most egregiously, he

failed to provide his own neuropathologist, Dr. Squier, with a copy of Newberger’s trial

testimony. Had he done so, Dr. Squier could have pointed to all of the many flaws that she

now lists in her supplemental affidavit, which unquestionably shaped the trial judge’s

reasoning in denying Harwood’s motion for a new trial.

c. Peixoto was clearly prejudiced by the deficient performance of his prior

counsel, who collectively deprived him of a substantial defense.

To succeed on a claim of ineffective assistance of counsel, Peixoto must also show

that counsel’s deficient performance prejudiced him by depriving him of a “substantial

ground of defense.” Saferian, 366 Mass. at 96. Where, “but for [counsel’s] error, the jury’s

verdict may very well have been different,” the deprivation is substantial. Commonwealth v.

Egardo, 426 Mass. 48, 53 (1997). This does not mean that the evidence must be so powerful

as to guarantee a different outcome; rather, the question is whether the “other side of the

evidentiary ledger, namely the evidence of the defendant’s guilt [. . .] could have looked

different if the defendant had received reasonably effective assistance from his counsel.”

Alcide, 472 Mass. at 164. Where a court “cannot say with confidence that this evidence would

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not have accomplished something material for the defense,” a new trial is warranted.

Nwachukwu, 65 Mass. App. Ct. at 116–17.

In this case, the collective failure of all of Peixoto’s prior attorneys to master the

Commonwealth’s medical evidence sufficiently to probe the veracity of Newberger’s

testimony deprived him of powerful available impeachment of the Commonwealth’s theory

about what happened to Christopher. Newberger’s importance to the Commonwealth’s case

cannot possibly be overstated. As described supra at 55 and illustrated more fully in the

chart included in the Addendum, his vivid descriptions of the condition of Christopher’s

body, face, lips, eyes, scalp and brain – coupled with his colorful claims about the pattern of

abuse associated with toilet training accidents – were foundational to the Commonwealth’s

theory at trial, and encompassed every important element of the Commonwealth’s case.

Not only did the prosecutor fail to correct any of these false statements by Newberger,

but she expressly relied on his testimony in her closing argument, including on several of his

demonstrably false claims. She referenced him by name four separate times, in contrast with

Weiner whom she did not mention at all. She highlighted his false claim that Christopher had

“grab marks” on his upper arms that were inflicted in the course of the basement assault. She

twice repeated his testimony equating the force involved in Christopher’s head injuries to a

fall from a second story window onto concrete. And she wholeheartedly adopted his spin on

the genital “injuries,” graphically arguing that “most importantly…he left his mark on that

baby like the Z from Zorro.” 591

In all of these ways, the prosecutor’s heavy reliance on Newberger powerfully

illustrates why Peixoto was prejudiced by this evidence. If the jury had understood the extent

591
Tr. 5/54.

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to which Newberger either exaggerated or manufactured evidence out of whole cloth, its

deliberations over whether to accept his version of what happened to Christopher

unquestionably “could have looked different.” Alcide, 472 Mass. at 164. Moreover, the briefs

and court decisions on appeal and in the prior post-conviction proceedings make clear that

the trial judge, the SJC justices who reviewed the case on direct appeal and in the two prior

gatekeeper petitions, and even Peixoto’s own attorneys, all presumed Newberger’s testimony

to be both accurate and persuasive. As noted supra at 92-96, counsel on direct appeal

affirmatively relied upon a number of Newberger’s false claims, and the trial judge

reproduced them in considerable detail in denying Peixoto’s prior new trial motions.

Newberger’s false and misleading testimony not only influenced the jury in its deliberations,

but also unquestionably influenced the resolution of Peixoto’s case on appeal and in prior

post-conviction proceedings, further manifesting how he was deprived of a substantial

ground of defense. For all of these reasons, Peixoto has demonstrated that there is a

substantial risk of a miscarriage of justice and that he is entitled to a new trial.

3. Prior counsel was also ineffective in not investigating the adequacy of the autopsy
procedure, including by securing an independent microscopic examination of the
bruise tissue samples collected by Dr. Weiner.

Prior counsel were also deficient in their failure to investigate and expose the

deficiencies in the autopsy procedure identified by Drs. Ophoven and Squier. As an initial

matter, trial counsel failed to heed the advice of his own expert to “more closely scrutinize

Dr. Weiner’s opinion regarding the age of Christopher’s bruises” by having Sussman

independently examine the slides and tissue samples collected by Weiner. Trial counsel’s

correspondence with Sussman reveals that Sussman specifically advised him to “more

closely scrutinize Dr. Weiner’s opinion regarding the age of Christopher’s bruises, in light of

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reports by daycare providers and others supporting the inference that a significant number

of the bruises were older in age.” 592 The two also discussed the possibility of having Sussman

independently examine the slides and tissue samples. 593 As Sussman recently explained, “in

any case where aging of injuries is an issue, a thorough and complete examination includes

an independent analysis of microscopic injury to tissue…[which] can reveal the

presence/absence of certain blood products…that reveal the breakdown of red blood cells

and can therefore help approximate the age of a bruise.” 594 Referring to Weiner’s autopsy

report, Sussman observed that while it “does contain descriptions of what was seen during

the microscopic tissue analysis…[his] descriptions are expressed in conclusory terms and do

not provide sufficient information to enable me to form an independent conclusion as to the

age of each of the sampled injuries.” 595 Yet trial counsel evidently did not pursue this line of

investigation – likely because he did not believe he had a basis to challenge the underlying

premise that a fatal assault took place that night – leaving Peixoto without the tools to

challenge Weiner’s testimony about the age of the bruising.

Peixoto’s appellate and prior post-conviction attorneys compounded trial counsel’s

deficient probing of the bruise evidence by failing to take any steps at all to independently

evaluate the veracity and reliability of either Newberger’s or Weiner’s testimony about the

bruises. Both Curhan and Schubert evidently – and erroneously – presumed that Weiner’s

claims about the age of Christopher’s bruises and his characterization of the condition of

Christopher’s genitalia were beyond reproach. While Harwood did at least nominally seek to

592
Sussman Aff. ¶20(b), RA1_0584
593
Sussman Aff. ¶20, RA1_0583-4.
594
Id.
595
Sussman Aff. ¶20(a), RA1_0584.

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challenge the medical evidence, he too failed to secure access to the tissue slides and samples

collected by Weiner for independent analysis.

It is equally clear that Peixoto was prejudiced by the failure of his attorneys to more

closely scrutinize the age of Christopher’s bruises and to challenge whether they necessarily

occurred at or about the time of death. As Ophoven has observed, not only was Weiner’s

documentation of his findings seriously inadequate, but his conclusory statement that

Christopher’s bruises happened simultaneously with the skull fracture that caused his death

was highly misleading and unsupported by the data he collected. According to Ophoven,

“[t]he only way to reliably estimate the timing of the fracture and any bleeding that can be

associated with the fracture is to microscopically examine tissues sections of the skull bone

itself, including the fracture and periosteal tissue over the bone at the fracture site,” which

was not done. 596 Not only did Weiner fail to explain the basis for his conclusion – as Sussman

pointed out to trial counsel at the time of his original consultation – but he failed to collect

any of the necessary data that would be needed to support it.

By far the most significant source of prejudice stems from the failure of any of

Peixoto’s prior counsel to investigate the veracity of the Commonwealth’s evidence of

Christopher’s so-called genital “injuries.” Not only was Newberger’s testimony about these

injuries demonstrably false – insofar as he attributed to Weiner several findings that Weiner

did not make – but according to Dr. Ophoven’s re-examination of the photographs and

microscopic slides, there is no evidence at all of traumatic injury to the penis and scrotal

tissue. 597 As Ophoven explains, the slide containing tissue from the penis and scrotum did

596
Ophoven Supp. Aff. ¶4(g), RA1_0501.
597
Ophoven Aff. ¶16(b)(i), RA1_0469-70.

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not show any evidence of extravasated blood, which would have been apparent if the blood

vessels had been disrupted in any way. 598 These conclusions are also supported by the fact

that EMT Legendre specifically remembered looking at the child’s genital area but finding no

bruising or injury, as well as the fact that none of the medical team at the ER noted any

injuries to the area. Ophoven concludes that if there even was an injury to the genital area it

must have occurred after Christopher arrived at the hospital and that whatever was seen on

the scrotum at the autopsy was possibly a post-mortem artifact. 599

C. The Commonwealth violated Mr. Peixoto’s federal and state due process rights
by presenting and then failing to correct Dr. Newberger’s blatantly false and
misleading evidence at trial.

It is well established that “the Commonwealth may not present testimony ‘which [i]t

knows or should know is false.’” Commonwealth v. Ware, 482 Mass. 717, 721 (2019), quoting

Commonwealth v. Forte, 469 Mass. 469, 490 (2014), Commonwealth v. Sullivan, 410 Mass.

521, 532 (1991), 469 Mass. 340 (2014). Likewise, the Commonwealth may not, “although not

soliciting false evidence, allow it to go uncorrected when it appears.” Commonwealth v.

Hurst, 364 Mass. 604, 608 (1974), quoting Napue v. Illinois, 360 U.S. 264, 269 (1959). In this

case, the post-conviction review of Newberger’s testimony reveals not one but several

instances of evidence that the Commonwealth knew or should have known was false, which

the trial prosecutor failed to correct at trial and which the appellate prosecutor then

capitalized on in the appeal. Specifically, as illustrated by the chart included in Addendum A,

Newberger gave false or misleading testimony the following topics, all of which were integral

to the Commonwealth’s theory of the case:

598
Ophoven Supp. Aff. ¶6(c), RA1_0504.
599
Id.

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 ● The condition of Christopher’s brain (“crushed” within the skull due to “massive”
hemorrhaging and swelling);

● The condition of Christopher’s scalp (“massive swelling” and “greatest number of

impacts found just above the hairline”);

● The condition of Christopher’s upper arms (pattern of finger-shaped grab marks

on both upper arms);

● The condition of Christopher’s penis (older, line-shaped injury on the shaft of the
penis), lips (multiple impact points) and eye (focused trauma directed toward
eye).

In each of these instances, Newberger not only claimed to be able to discern these injuries

himself (based on his review of photographs taken by others), but he insisted that Dr. Weiner

made these findings in the course of the autopsy. The prosecutor knew or should have known

that this was false, and that Weiner’s autopsy findings directly contradicted Newberger’s

testimony. Yet she not only elicited this false testimony from Newberger on direct

examination, but failed to correct it through Weiner’s testimony and then affirmatively relied

on it in her closing argument. The appellate prosecutors then compounded the problem by

expressly relying on Newberger’s false testimony in the Commonwealth’s brief on direct

appeal. 600

Moreover, Newberger’s pre-trial report failed entirely to place trial counsel on notice

of the many false statements that he ultimately made at trial. Moreover, he did not even

receive many of the crucial autopsy photographs that Newberger testified about – including

exhibits 31 and 32 – until after the trial started, which prevented him from discussing what

these photographs depicted with his own expert, let alone challenge Newberger’s testimony

about what was depicted in them. To the extent that it may be argued that either he or

600
RA1_0197 (“crushed brain”); RA1_0197-8 (“old and new” penis injuries); RA1_0198 (“impact points” to lips
and eyes).

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successor counsel could have discerned and developed this evidence, “where testimony is

blatantly false and pertains to an issue central to the Commonwealth’s case, a defendant’s

ability to discern the statement’s falsity does not absolve prosecutors of their duty to

correct.” Ware, 482 Mass. at 725. That is particularly so “where [as here] the government not

only fails to correct materially false testimony but also affirmatively capitalizes on it.” Id.,

quoting United States v. Stein, 846 F.3d 1135, 1147 (11th Cir.) cert. denied, 538 U.S. 1039,

138 S.Ct. 559 (2017). See also Sivak v. Hardison, 658 F.3d 898, 899 (9th Cir. 2011), quoting

Northern Mariana Islands v. Bowie, 243 F.3d 1109, 1122 (9th Cir. 2001) (“It is ‘irrelevant’

whether the defense knew about the false testimony and failed to object or cross-examine

the witness, because defendants ‘c[an]not waive the freestanding ethical and constitutional

obligation of the prosecutor as a representative of the government to protect the integrity of

the court and the criminal justice system’”). For all of these reasons, it is clear that the

Commonwealth’s misconduct in its handling of Newberger’s testimony at trial and on appeal

violated Peixoto’s federal and state rights to due process and warrants a new trial.

II. A CONFLUENCE OF FACTORS CAUSED A SUBSTANTIAL RISK OF A MISCARRIAGE OF

JUSTICE BY DISTORTING THE PRESENTATION OF EVIDENCE BEARING ON THE
CREDIBILITY CONTEST BETWEEN AMI SNEED AND BRIAN PEIXOTO THAT WAS AT
THE HEART OF THIS CASE AS PRESENTED BY BOTH SIDES AT TRIAL.

The scientific evidence presented for the first time in this motion more than amply

demonstrates why Mr. Peixoto is entitled to a new trial. However, to fully evaluate the

injustice of his conviction, Mr. Peixoto urges this court to also examine the fundamental

unfairness of the trial that produced his conviction and to recognize how “a number of

factors act[ed] in concert to cause a substantial risk of a miscarriage of justice.” Rosario, 477

Mass. at 77-78, citing Epps, 474 Mass. at 767-768. To be clear, the claims described herein

are unquestionably waived, as they could have and should have been addressed by appellate

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counsel in the course of the direct appeal. However, it is Mr. Peixoto’s contention that this

court can and should consider even the waived claims described herein, because this is one

of those extraordinary and rare cases, like Rosario and Epps, where it is necessary to

examine the full confluence of factors that contributed to Mr. Peixoto’s unjust conviction for a

crime he has always maintained he did not commit.

The newly presented science unquestionably transforms the landscape of the case

against Peixoto. However, it is axiomatic that, at trial, the case turned entirely on the jury’s

resolution of three basic questions: (1) who was alone in the basement with Christopher

during the window of time when the assault purportedly occurred? (2) who had the motive

to commit this purportedly heinous assault? (3) whose story made more sense? To fully

evaluate whether justice was done, it is necessary to examine how unfairly and deceptively

the evidence pertaining to each of these three questions was presented to the jury and

argued by the parties on appeal. This examination reveals that the jury’s resolution of the

credibility contest at the heart of its evaluation of this case was hopelessly corrupted by a

combination of prosecutorial misconduct and deficient performance by counsel, and that the

resulting prejudice was significantly compounded by the litigants who handled the direct

appeal and prior new trial motions, none of whom marshaled and presented the exculpatory

evidence described herein.

A. The Commonwealth’s misleading presentation of the evidence that Peixoto was

alone with Christopher immediately before his collapse and death, which
appellate counsel failed to correct, rendered the trial fundamentally unfair.

At the outset of the trial, the prosecutor expressly told the jury that it was through

Sneed’s testimony – which she also said would be closely mirrored by Peixoto’s statements to

police – that she would prove that Peixoto was alone in the basement with Christopher in the

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pivotal moments prior to his collapse. She previewed Sneed’s testimony on this point as

follows:

She went upstairs to smoke a cigarette. He came upstairs, Miss Sneed will tell
you, and went into the bathroom. After he came out, her daughter called for her
from downstairs. The defendant walked down the stairs into the apartment
where Christopher Affonso was watching TV…what the evidence will show you
is that after he went downstairs, he beat that baby to death.” 601

This was unsurprising, because until trial, Sneed had always maintained that Peixoto was

upstairs in the bathroom when Tarissa first called out. She had also always maintained, until

trial, that Peixoto was in the bathroom for a period of minutes, not seconds. 602 And she had

always maintained, as she continued to maintain at trial, that she heard nothing unusual

between the time she went upstairs to smoke and the time Peixoto went upstairs to use the

bathroom. Prior to trial, the details that had changed in Sneed’s account all related to what

happened after Tarissa called out: whether she and Peixoto responded together or separately

to Tarissa’s call; how long she waited before following Peixoto down the stairs; what noises,

if any, she heard en route; and what she saw when she arrived in the basement. And while

Peixoto’s pretrial statement, as documented by King’s report, could reasonably have been

interpreted as contradicting Sneed (insofar as he did not say anything about using the

bathroom and he told police he was lying in bed when Sneed went upstairs to smoke), he

also told police that Sneed responded to Tarissa’s call at essentially the same time he did.

601
Tr. 1/167-8. She also predicted that the defendant, through King and Roussel, would tell them that “Sneed
was upstairs when he went downstairs to see what was happening with Christopher.” Tr. 1/171-2.
602
See RA2_0026; RA2_0032; PCH 95, 101; Tr. 3/85. At the hospital on Jan 22, Sneed told police that she went
upstairs to smoke a cigarette and Peixoto went upstairs to take a shower. Sneed gave a more detailed statement
to police at the station several hours later. According to Butler’s report “Sneed stated that 15 - 20 minutes before
they found [Christopher] unresponsive, she went back upstairs for a cigarette and Peixoto came upstairs to use
the bathroom.” When Sneed testified at the probable cause hearing a month later, she confirmed that this part
of her original account was true. PCH 135.

170
 However, when Sneed took the stand at trial, even these previously consistent aspects

of her story changed, so much so that, by the end of her testimony, the record was hopelessly

confusing. The confusion was due not only to Sneed’s obfuscation of counsel’s efforts to

impeach her, but more importantly to the prosecutor’s distorted and misleading efforts to

resuscitate Sneed’s credibility through her examinations of Sneed and Butler. As described in

greater detail supra, the prosecutor encouraged Sneed to falsely state that her testimony at

the probable cause hearing was “the same as it is today,” when in fact, that prior testimony

directly contradicted what she initially said at trial about where Peixoto was when Tarissa

first called out. She also promoted Sneed’s false statement that she only told two versions of

events – at her first and second police station interviews – and that the sole differences

between those statements were that she “didn’t tell them that Brian was downstairs alone

with Christopher” when she heard the banging noises and she “didn’t tell them how many”

banging noises she heard.” But in fact, Sneed had given a myriad of different versions of

events, at the hospital, during her first and second stationhouse interviews, at the probable

cause hearing, and even from the stand at trial. And her story had changed on a myriad of

details beyond the two that Sneed pointed to in her testimony.

The prosecutor’s “proof” that Peixoto was alone with Christopher right before he died

became even more distorted and misleading when she called her last two witnesses, Butler

and Roussel. Through a series of leading questions posed to Butler on redirect, she got him to

agree that: (a) when Butler sat down to meet with Sneed on Jan. 24, he already “knew” that

”the defendant had told the other officers that he was alone with Christopher immediately

prior to his death;” and (b) Butler had communicated to Sneed that her story did not add up

because “Brian had told, during his interrogation, that he was alone with the child just prior to

171
the child becoming unconscious.” 603 However, whether deliberately or recklessly solicited by

the prosecutor, not only was this latter claim premised on inadmissible hearsay, it had no

basis whatsoever in the record. Neither King’s report of Peixoto’s statement nor Butler’s

report of Sneed’s second station house interrogation made any reference to this putatively

damning admission by Peixoto, or to Butler saying anything of the sort to Sneed. Moreover,

Butler, King and Roussel had all testified under oath at the suppression hearing, yet none of

them had attributed this damning admission to Peixoto at that proceeding. On the contrary,

the trial judge made detailed fact findings at the conclusion of the suppression hearing, and

he did not find that Peixoto “admitted” that he was alone with Christopher right before he

collapsed. 604 And when King himself testified, on the first day of trial, he did not attribute this

admission to Peixoto, nor did he testify that he conveyed such an admission to Butler. 605

Finally, through her examination of Roussel, the prosecutor perfected this deceptive

reframing of the “proof” that Peixoto was alone with Christopher right before his collapse

and death. For the first time ever, Roussel insisted that not only did Peixoto tell police that he

was still in bed downstairs when Tarissa called out to say that Christopher was throwing up,

but Peixoto also supposedly told them that:

● Sneed was still upstairs when he went to the living room to check on Christopher.
● She was still upstairs when he slapped and shook Christopher.
● And she was still upstairs when he first saw Christopher banging his head. 606

603
Tr. 4/82.
604
Moreover, if one or more of the officers had informed the prosecutor of this brand new “admission” at some
point since the prosecutor gave her opening statement, she had a clear duty to disclose this information to the
defense.
605
All King said about this aspect of Peixoto’s statement was that he told police he was downstairs at some point
while Ami smoked upstairs and that when Tarissa told him Christopher was throwing up, Brian, “went into the
area where Christopher was.” Tr. 1/212.
606
Tr. 4/109.

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Not only was this testimony not in any police reports, but it was contrary to Roussel’s

testimony on this very point at the suppression hearing, and contrary to what the prosecutor

told the jury Roussel would testify to when she discussed this topic in her opening statement.

At the suppression hearing, which the prosecutor (but not trial counsel) was present for,

Roussel summarized the exact same moment in Peixoto’s statement as follows: “Brian heard

noises. Tarissa was complaining that [Christopher]...was sick. Brian went to see what was

wrong with [Christopher] and I believe Ami came down at that time. And from that point,

they determined that there was something seriously wrong with Christopher.” 607

The prosecutor then deployed the perjured testimony evidence she had elicited

through Sneed, Butler and Roussel to undermine Peixoto when he took the stand. Through

her cross examination of Peixoto, in which she deliberately and repeatedly misstated prior

evidence, the prosecutor invited the jury to disbelieve his testimony about where he was

when Tarissa first called out because – if he had really been upstairs in the bathroom for ten

minutes before Tarissa called out – he naturally would have mentioned this detail to the

police. 608 She also pressed Peixoto to “admit” that he knew the significance of the moments

immediately before Christopher’s death, asking pointedly, “you and Ami were the only two

who had custody of Christopher just immediately before his death.” 609 And she “confronted”

Peixoto with his statements to Lisa Morton, falsely implying that Morton testified that

Peixoto told her he was already downstairs when Tarissa called out, when Morton had

repeatedly testified to the opposite. 610 Yet the prosecutor knew full well that, in every

607
SH1/35.
608
Tr. 4/230-2.
609
Tr. 4/285.
610
Tr. 4/279-80.

173
version that Sneed had ever told before taking the stand at trial, she herself maintained – as

Peixoto testified at trial – that Peixoto was in the bathroom when Tarissa first called out. And

indeed, the prosecutor ultimately conceded in her closing argument that Peixoto “probably”

did go upstairs to use the bathroom, 611 even as she continued to maintain that Peixoto’s

failure to inform the police about this fact was evidence of a guilty conscience.

Finally, in her closing argument, the prosecutor tied all of these strands of evidence

together. First, relying on Butler’s utterly baseless assertion that Sneed’s “thought process”

after viewing the autopsy photos was that “he lied to her, the man she loved killed her baby,

it was obvious from those pictures…from that point on she wanted to come clean.” Second,

relying on the misleading testimony that the prosecutor had solicited from Sneed and Butler,

and Sneed’s stubborn obfuscation of defense counsel’s impeachment efforts, the prosecutor

falsely promoted that Sneed: (a) initially lied to the police to cover for Brian, 612 (b) changed

her story after seeing the autopsy photos and realizing that Brian “lied to her,” and (c) “told

the exact same thing since that time.” Third, knowing that her own star witness had

previously and consistently maintained (until her direct, cross, and redirect at trial) that

when Tarissa called out, Peixoto was in the bathroom where he had already been for ten

minutes, she spuriously argued that the jury should disbelieve Peixoto when he “adds in this

big ten-minute gap that I was in the bathroom.” Finally, she repeatedly and untruthfully

611
Her verbatim argument was as follows: “So what really really happened in this case?...Does he go upstairs to
go to the bathroom? Probably. He comes back downstairs, and whatever it is that Christopher does, if he peed his
pants or he's throwing up, he goes into that room, and he’s mad…he goes crazy.” Tr. 5/58.
612
In fact, Sneed did not make this claim at trial, nor did she ever say that she had initially lied to the police to
cover for Peixoto. Although at trial, she explained her inconsistencies by testifying that she did not initially tell
the police everything she knew, she did not coherently explain why she withheld information. And at the
probable cause hearing, when she was directly asked to explain why her story changed, she claimed that she
tried to tell the police everything she knew – to the best of her ability – but that she was confused. PCH 107.
Thus the only factual basis for the prosecutor’s argument on this point was Sgt. Butler’s unfounded suspicion
about Sneed’s motive when first questioned, which she supplied to him through a leading question.

174
argued that even if the jury disbelieved Sneed’s testimony, the evidence clearly and

unequivocally established that:

● “The defendant told the police I was alone downstairs.”

● ”The defendant told the police that he was alone with this baby, so you’ve got to
decide who did it.”

● “The question here is whether or not she's a murderer. She's not. He is. And how
do you know that? Well, first of all, Ami told you. But, okay, you've got some
problems with Ami, so let's just ignore Ami for a while. How else do you know it?
The defendant told the police that. The defendant told not just Detective Roussel,
who was one of the last witnesses to testify, but told Trooper King, who was the
first witness to testify.”

● “[I]t's clear from the context of [King’s] report and from what Trooper King and
from what Detective Roussel and from what Lisa Morton told you, that he was
downstairs for a period of time, albeit a short period of time, with Christopher just
before he died. So the defendant told you through Trooper King and through
Detective Roussel and through Lisa Morton that he was alone with that child.”

This characterization of Peixoto’s “admission” was not only deceitful, but highly prejudicial.

The prosecutor knew or should have known that Roussel had given contradictory testimony

under oath at the suppression hearing, but that trial counsel was unable to impeach him with

that testimony because no transcript had been prepared. She also knew or should have

known that neither King nor Morton had testified that Peixoto admitted he was alone with

Christopher right before he died, yet she falsely asserted that their testimony corroborated

Roussel’s on this point. While counsel certainly could have, but did not, timely object to these

arguments, Peixoto urges this court to still consider how the prosecutor’s misconduct

contributed to the profound unfairness of his trial.

On appeal, Peixoto’s lawyer utterly failed to exploit the serious discrepancies between

the testimony adduced at trial and the underlying record on the question of whether Peixoto

was alone with Christopher in the moments right before he died or to argue that the

175
prosecutor’s closing was improper. Even worse, he unquestioningly embraced the

prosecutor’s spurious framing of this evidence. In summarizing the case against Peixoto,

Curhan failed to make any reference to trial counsel’s extensive efforts to cross-examine

Sneed about her brand new claim at trial (which she maintained on direct, cross, and

redirect) that Peixoto returned downstairs before Tarissa first called out, and only seconds

after using the bathroom. 613 He then adopted as true the prosecutor’s false assertion, in her

closing argument, that Sneed told only two versions of what happened. 614 In doing so, he

completely ignored Sneed’s contradictory testimony at the probable cause hearing, with

which trial counsel had painstakingly and meticulously confronted her at trial. He also

disregarded the topics as to which Sneed had been impeached by the testimony of Corey

Oliveira, who was present when the police first spoke to Sneed at the hospital. Moreover,

when appellate counsel addressed the inconsistencies between her various statements to the

police, he adopted the prosecutor’s false narrative – carefully curated through her leading

examination of Butler – that Sneed was covering for Peixoto until she was confronted with

the autopsy photos. 615 He also inexplicably argued that Sneed’s “final” account at trial

“eliminate[d] the 3 minute delay in going downstairs,” when in point of fact her “final”

testimony actually doubled the length of her delay, from 2-3 minutes to 7-10 minutes. 616

As argued supra, it is well established that the Commonwealth may not present

testimony “which [i]t knows or should know is false,” Ware, 482 Mass. at 721, nor may the

Commonwealth, “although not soliciting false evidence, allow it to go uncorrected when it

613
RA1_0093.
614
RA1_0101-2.
615
RA1_00127-9.
616
Id.

176
appears.” Hurst, 364 Mass. at 608. With respect to closing arguments, it is equally well

established that, while prosecutors may “argue strenuously, and even with a flourish, that the

jury should credit certain testimony or draw certain inferences consistent with the evidence

before them,” they may not misstate the evidence in closing argument, nor may they argue

facts that they know to be false. Commonwealth v. Merry, 453 Mass. 653, 666-667 (2009),

citing Commonwealth v. Coren, 437 Mass. 723, 730-731 (2002) (misstating evidence). See

also Commonwealth v. Kozec, 399 Mass. 514 (1987). In this case, the prosecutor plainly and

repeatedly violated both rules, first by suborning perjury through her examinations of Sneed,

Butler, Roussel, and Peixoto, and then by capitalizing on that perjured evidence in her closing

argument. These errors went to the core of the Commonwealth’s case against Peixoto –

whether he or Sneed was alone with Christopher right before he died – thus creating a

substantial risk of a miscarriage of justice.

B. The prosecutor’s misleading presentation of the “proof” that Peixoto alone had
a motive to commit this purportedly violent assault, coupled with the
admission, without objection, of Newberger’s improper profile testimony
further contributed to the fundamental unfairness of the trial.

Without a doubt, the most damning evidence against Peixoto was the one-two punch

of Newberger’s testimony about the “pinching” injuries to Christopher’s genitals and the

evidence of Peixoto’s purportedly incriminating statement that it would “piss him off” when

Christopher would wet his pants. What the jury never learned, and no court has ever

previously considered, is that the prosecutor’s presentation of the evidence on this topic was

alarmingly specious and unquestionably contributed to the fundamental unfairness of the

trial proceedings.

It began at the very outset of the trial, when the prosecutor stated in her opening that

the very first thing that Peixoto said to the police, before they advised him of his Miranda

177
rights, was that Christoper “really pissed me off when he wet his pants, but I didn’t want him

dead.” 617 This was mendacious, as the prosecutor knew or should have known: according to

Det. Roussel’s testimony at the suppression hearing, which the prosecutor handled on behalf

of the Commonwealth, the first thing Peixoto said before being Mirandized was actually, “I

can’t believe this. I can’t believe Christopher is dead.” 618 The trial judge’s findings of fact in

denying Peixoto’s motion to suppress adopted this sequence:

Trooper King told the defendant that they were investigating the death of
Christopher Affonso Jr. The defendant seemed quite remorseful about the
death and kept shaking his head. Trooper King was about to explain the
Miranda rights of the defendant when the defendant said: “I can’t believe this. I
can’t believe Christopher is dead.”The defendant continued and said that he
sometimes “got pissed off when Christopher wet his pants, but I did not want
him to be dead.” 619

Against the backdrop of this record, the prosecutor failed to establish through Roussel that,

before Peixoto said anything at all about how he felt when Christopher would wet his pants,

he first expressed his shock and disbelief that Christopher was dead. 620 To make matters

worse, she elicited from Roussel a far more inculpatory version of Peixoto’s comment than

what Roussel had testified to at the suppression hearing: that Peixoto “was pissed off because

he wet his pants, but he did not want him dead.” 621 The prosecutor knew or should have

known about Roussel’s prior inconsistent statement on this point – after all, as the transcript

of that hearing reveals, she had gone to great lengths at that proceeding to “refresh”

Roussel’s memory on this point with King’s report. 622 However, lacking a transcript or other

617
Tr. 1/171.
618
SH1/19.
619
RA1_0024.
620
Tr. 4/95-6.
621
Tr. 4/96.
622
At the suppression hearing, Roussel initially testified that Peixoto did not say anything at all before King gave
him the Miranda warnings. When the prosecutor asked, again, whether Peixoto said anything before the

178
means to impeach Roussel with his prior inconsistent statement, trial counsel did not

confront him with either discrepancy.

The prosecutor then capitalized on the misleading evidence she had elicited from

Roussel when she cross-examined Peixoto on the topic. First, she repeatedly insisted in her

questioning that the very first thing he said to the police was that, “it pissed me off when he

peed his pants.” 623 When Peixoto tried to explain the context of his statement – which was

that he could not believe that Christopher was dead and regretted “all the times [he] got”

upset about something so silly as peeing in his pants624 – she sarcastically mocked his

answers. 625 And when he tried to explain that, actually, “the first thing that came to my mind

was that I couldn’t believe that he was gone,” she misleadingly asked him, “But that’s not

what you said to the police, is it?” 626 In fact, that is exactly what he said to the police.

warnings, Rouseel responded, “The main thing that he did say is I can’t believe this. I can’t believe Christopher is
dead.” She then asked him for a third time whether Peixoto said anything else prior to the Miranda warnings,
and Roussel answered, “not that I recall.” Finally, the prosecutor “refreshed his recollection” with King’s report.
Only then did Roussel testify that Peixoto also said that Christopher "used to piss him off because he would wet
his pants, but he did not want Christopher dead." SH1/18-21.
623
Tr. 4/290.
624
Tr. 4/170. It was clear in context that Peixoto was referring to all the times in the past when he had gotten
upset about Christopher peeing his pants, not to being upset that night.
625
As one news article reporting on the final day of evidence reported, the prosecutor “sharply attacked
Peixoto’s testimony, often laughing at his responses and questioning him with a great deal of sarcasm. She
asked why, on the day police first interrogated him, Peixoto made a comment about hating the fact that
Christopher wet his pants, but that he didn’t want him dead. ‘When I made that comment, I was in shock,’
Peixoto said. ‘I realized Chris was dead.’” Michael W. Freeman, Peixoto Says Boy Had Seizure, The Herald News
(Mar. 7, 1997). RA1_0761.
626
Tr. 4/292-3. The exact exchange was as follows: Q: “So you’re down to the station, you’re going to talk to
these officers about CAJ’s death, and the first thing that comes into your mind is, it pissed me off when he peed
in his pants, but I didn’t want him dead.” A: The first thing that came to my mind was that I couldn’t believe that
he was gone, and I wasn’t going to be able to see him anymore. And the times that I got upset with him for
something as silly as peed pants, that it shouldn’t have been so important as just having the chance to play with
CAJ and spend time with CAJ…Q: But that’s not what you said to the police, is it? What you said to the police
was, he really pissed me off when he peed his pants, but I didn’t want him dead.” A: I don’t even think I said that
in response to anybody…” Q:…in answer to the question the first thing and the only thing you said to the police
about that particular subject was, he really pissed me off when he peed his pants, but I didn’t want him dead,
would that be a yes? A: “I didn’t say that to the police. I believe I said that mumbling to myself.”

179
 The prosecutor then capitalized on these errors in her closing argument by misstating

the testimony about what Brian said and falsely implying that he told the police he was angry

that night because Christopher wet his pants. 627 This was absolutely essential to the

Commonwealth’s case against Peixoto, because the prosecutor needed the jury to believe

that something happened that very night that caused Peixoto to fly into a murderous rage.

Significantly, the prosecutor’s distortion of the evidence about Peixoto’s statement about

Christopher’s toilet accidents bears an alarming resemblance to her conduct in another

homicide case, Commonwealth v. Pavao, 34 Mass. App. Ct. 577 (1993). There, the Appeals

Court found that the prosecutor intentionally and prejudicially misstated a witness’s

testimony about what the defendant said to him in order to establish that the defendant

possessed an intent to kill. Id. at 580, 583. Specifically, the Appeals Court found that the

prosecutor deliberately misquoted the witness as having said that the defendant “was going

to kill” the victim, when in fact the witness repeatedly testified that the defendant said he

was “going to get” the victim. Id. at 583. Likewise in this case, the prosecutor transformed the

defendant’s far more innocuous, general statement that he would get upset when Christopher

wet his pants into an explicit admission that he was upset that night because Christopher wet

his pants, when there was no evidence that Christopher wet his pants that night.

The prejudice arising from this misleading presentation of this evidence was greatly

exacerbated by the admission, without objection, of what amounted to improper profile

evidence by Dr. Newberger offered, and then expressly argued, to establish Peixoto’s identity

as the perpetrator. On direct examination, Newberger testified that Christopher’s genital

“injuries” are “the sort of thing that, unfortunately, we do see in cases of child abuse involving

627
Tr. 5/53.

180
three-year-old kids whose toilet training has been a problem, where sometimes adults will

pinch the penis.” 628 On cross-examination, Newberger elaborated that, “with a kid three

years old, [the genital injury] was almost certainly in the setting of an adult who was angry

with the child because he could not or would not contain his urine.” 629 This testimony

constituted improper criminal profile evidence. Six years earlier, in a decision overturning

another child death case secured with testimony by Newberger, the SJC ruled that

Newberger’s testimony about the “family characteristics” and “patterns” of a child batterer

constituted improper profile evidence that lacked probative value and was “inherently

prejudicial.” Commonwealth v. Day, 409 Mass. 719, 724 (1991). The Court went on to explain

that, [i]n the circumstances of this case, where there was evidence that the mother and the

defendant argued on the night before the child was found dead, and that the defendant was

questioned by the police regarding injuries suffered by the mother, a reasonable jury could

have inferred that the evidence was introduced to establish who abused the child, not

whether the child was abused.” Id. at 726. “The fact that Dr. Newberger did not specifically

state that the defendant fit the profile is not significant, since a reasonable jury could have

inferred that the Commonwealth was implying that the defendant fit the ‘child battering

profile,’ and, as a result, that the defendant was responsible for the child's fatal injuries.” Id.

at 725.

The prejudice analysis is even clearer in this case than in Day. After all, in this case,

the prosecutor did more than merely imply that Newberger’s testimony established who

628
Tr. 2/99-100.
629
Tr. 2/116-7.

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abused Christopher, as opposed to whether Christopher was abused. She expressly told the

jury that Peixoto was the only person who could possibly fit that profile:

And most importantly, ladies and gentlemen, the injuries to the genitals. He left
his mark on that baby like the Z in Zorro. Who is obsessed with this child's
genitals? Who's angry at that part of that child's body? His mother? No. Who's
the person who's going to twist and pinch and squeeze those genitals? Mr. "I
get bullshit when he pees his pants.'' Mr. "It pisses me off when he pees his
pants." That's who's angry at that boy's genitals. That's who twisted his penis.
That's who pinched his penis. That's who pulled it. That man. 630

Tragically, as we now know – but the jury never learned – Christopher’s diaper was

completely dry and clean when he was in the ambulance with EMT Legendre. And tragically,

as we now know – but the jury never learned – there is no reliable evidence that

Christopher’s genitals were injured at all, as the redness and discoloration observed at

autopsy can readily be explained as a post mortem artifact, rather than as evidence of a pre-

death inflicted injury. Thus not only did the prosecutor prejudicially rely on inadmissible

profile evidence that the jury should never have heard, but we now know that it lacked any

reliable factual basis.

CONCLUSION

For twenty-eight years, Brian Peixoto has steadfastly maintained that he had no role

whatsoever in the tragic collapse and death of Christopher Affonso Jr. and that the trial that

produced his wrongful conviction was profoundly unjust. The evidence presented in support

of the instant motion powerfully supports this position and shows that justice was not done.

It also demonstrates that Mr. Peixoto truly never stood a chance at trial, due to a disturbing

confluence of discovery delays and omissions, trial by ambush tactics, and misconduct by the

prosecutor in the presentation of the evidence and in her closing argument. He also never

630
Tr. 5/54-5.

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stood a chance on direct appeal, or in any of his prior motions for new trial, because not a

single one of his attorneys after trial took the time to master the factual record sufficiently to

recognize and address these issues, let alone to develop the medical evidence that was

needed to substantiate his innocence.

For all of the above reasons, Mr. Peixoto respectfully requests that this Court grant

him an evidentiary hearing and allow his motion for a new trial.

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 ADDENDUM A: Chart of injuries fabricated by Dr. Newberger

Topic Newberger’s testimony Weiner and Arcuri’s observations

"Swelling" Testified that there was massive swelling on Weiner did not note any swelling on the back
on back of the back of Christopher’s head, just above the of head, and Arcuri looked and felt for, but
head hairline. 631 did not find, any swelling/ hematoma in this
area.
"Greatest Testified that Weiner "found" that the greatest Weiner did not make that finding. On the
number" of number of traumatic impacts were just above contrary, his diagram shows that the
traumatic the hairline on the back of Christopher's head, fracture traveled across the base of the skull,
impacts directly over a massive skull fracture. 632 not the back of the head, thus there was no
directly over area of scalp bruising overlying the fracture
the skull line.
fracture
Inflicted Testified that there was a dark area just to the Weiner did not find any impact points or
injuries to right of one of Christopher's eyes, which injuries to either eye.
eye appeared to be an "impact point" of some kind
of "focused trauma" directed toward the eye. 633

Right Testified that the bruise on Christopher's right Weiner found a single half-inch bruise. 636
forehead forehead was actually four separate bruises, The autopsy report does not describe the
bruising and that they were all "fresh.” 634 Based this color of the bruise, nor did Weiner testify at
claim in part on coloration of the bruises, which all about how it appeared to him during the
he said might look brown in the photograph autopsy.
but appeared "red blue" to the medical
examiner, consistent with a recent collection of
blood. 635
Left Weiner described this bruise as half that size
Testified that there was a prominent bruise
forehead (1.25 x 1.25 in.). 638
over the left eye which the medical examiner
bruising
measured as 2.5 inches by 1.5 inches with two
points of abrasion. 637
Left Weiner found a single bruise, and did not
Testified that the bruise over Christopher's
shoulder find that it contained multiple impact
shoulder blade on the upper part of the left side
blade and points. 640
of his back was a "complex" bruise with
scapula
"multiple impact points." 639

631
Tr. 2/85-6, 90.
632
Id.
633
Ex. 34, Tr. 2/80.
634
Tr. 2/68-70.
635
Tr. 2/70.
636
Tr. 3/214.
637
Tr. 2/63-4.
638
Tr. 3/214, RA2_0377-8.
639
Ex. 38, Tr. 2/91-2.
640
Tr. 3/212-3, RA2_0377-8.

184
Bruising Testified that there were multiple bruises to Weiner only found a single bruise on the
pattern on the upper left arm, which he pointed to as upper left arm. 642
upper left evidence of grab marks proving that someone
arm grabbed Christopher by both arms and
repeatedly slammed his head into a hard
unyielding surface. 641
Multiple Testified that Weiner "found" multiple "fresh" Weiner did not find any impact points on
fresh impact impact points to lips. He also said that when Christopher's lips, and he did not draw any
points and you look carefully at the photograph of the conclusions about how the bruising inside
swelling to lower lips, you can see multiple impact the lip could have happened.
the lips* points. 643 He went on to claim that there was an
extensive area of bruising inside the lip, which
"derived from trauma of being struck from the
outside with pressure directly over the teeth"
and "didn't come from the child biting
himself." 644
Injury to the Testified that there was swelling and Weiner did not find any bruising at all on the
shaft of the hemorrhage on the shaft of the penis, and that shaft of Christopher's penis, only on the very
penis* when the penis was incised it showed tip and distal portion of the glans of the
substantial blood collected underneath the penis. 646 Moreover, there is no evidence that
upper part of the shaft. 645 the tissue section collected by Dr. Weiner
was from this part of Christopher's penis.
“Line Testified that Weiner's autopsy report Weiner's report does not describe any line-
shaped” describes a line shaped injury to the penis. He shaped injury to the penis, nor does it note
older opined that this was older than the "ground of any ground of red, purple discoloration.
“pinch” red, purple discoloration noted by the medical
injury on examiner." 648
penis 647
Bruise and Testified that there was a bruise and abrasion Weiner found a very small ⅛ inch abrasion
abrasion to on the back of Christopher’s left ear which he on the back of the left ear.
back of left believed was caused by “traction force” (pulling
ear caused the ear). 649
by traction

641
Id.
642
Id.
643
Tr. 2/54-5.
644
Ex. 35, Tr. 2/81.
645
Tr. 2/98-9.
646
RA2_0377.
647
*Trooper King testified to numerous false injuries, including bruising on the shaft of penis, bruising to the
eye and eyelid, and bruising, chafing, and “cutting” of the lips. Tr. 1/188-9, 241, 244-6; Ex. 3, 26, 28, 35, 36. Sgt.
Butler also corroborated Newberger’s false testimony about the condition of the lips; he testified (without a
photo) that when he saw Christopher at the hospital, he saw that “his lips and the inside of his lips were bruised
and cut.” Tr. 4/7.
648
Tr. 2/59.
649
Tr 2/83.

185
 ADDENDUM B: Changes in Ami Sneed’s Account of Bruises

Evolution of Ami Sneed’s Statements Re: Bruising

Statement Date 1/22/96 1/22/96 1/24/96 2/21/96 3/5/97
and Location Hospital Police Police Probable Trial
Statement Station Station Cause Testimony
Statement Statement Testimony
Thigh Bruise: Bruise on mid- Faded bruise Bruise on No injury No injury
right thigh on right thigh right thigh mentioned; mentioned
only saw 2
forehead
bruises
Ear: Bite Bitemark Not Not Ear bite
Mark/bruise right ear mentioned mentioned; mark (from
behind right (from only saw 2 Tarissa)
ear (from Tarissa) forehead
Tarissa) bruises
Center Forehead: Not mentioned Center Right-center side/corner Right
forehead forehead of forehead Forehead
bruise (fall on bruise (fall lump bruise(fall
stairs on on stairs (fall down down stairs
1/13) 1/13) stairs on on 1/13)
1/13)
General Not Mentioned Left forehead Did not see See above See above
Forehead: bruise bruise on
left forehead
Back: Not Mentioned Bruise on Did not see Not Bruise on
center back bruise on mentioned; lower center
(saw 2 ½ back only saw 2 back
weeks earlier forehead
from fall off bruises
bed)
Arm: Not Mentioned Red Marks on Not Not On right arm
right arm Mentioned Mentioned; 24-48 hours
only saw 2 prior to
forehead death
bruises
Genitals: Not Mentioned Not Specifically Not Denied
Mentioned denied Mentioned; seeing any
seeing any only saw 2 bruises
bruises forehead
bruises

186