Scalded-Baby Conviction Overturned in New York

     (CN) – A New Yorker convicted of scalding his girlfriend’s 3-year-old son in the bathtub was denied a fair trial, a federal judge found, ordering the man released from prison.
     U.S. District Judge Jack Weinstein ruled Tuesday that it was improper for the trial court to allow damning testimony from the child without calling that child to the stand so that attorneys for Michael Duhs could cross-examined him.
     Duhs, 41, had been serving a 20-year sentence for first-degree assault, but Judge Weinstein said he must be freed within 60 days unless the prosecution elects to retry the case.
     It has been nearly a decade since the child in question was scalded in the Staten Island home Duhs shared with the boy’s mother, Stacy Andersen.
     Duhs testified that he often stayed home to care for the child on days when Andersen had medical-assistant school and he did not have work.
     Andersen testified that she received a call from Duhs at about noon on one such day, Sept. 16, 2005, saying that her baby’s feet got burned in the bathtub.
     “From what I can remember, he said that he turned the hot water on and he ran out to smoke a cigarette or whatever he did and he heard the baby crying, came running in the house, that (the child’s) hands were stuck in the (overflow drainage) hole, he was trying to get his hand out of the hole, then he realized the water was so hot,” Andersen testified.
     The ruling emphasizes evidence in the record that three “had a loving, caring relationship” with no history of violence.
     Weinstein also included photos of the bathtub, which he noted posed a potential hazard because the water flowed quickly and was very hot.
     “The mother had a dispute with the landlord about the water going from warm to very hot without any warning,” Weinstein wrote.
     Andersen’s niece Barbaria testified that, as the family drove to the hospital, the child said that Duhs “put me in hot water.”
     The child suffered second- and third-degree burns to both legs, and the charges against Duhs stemmed from the lines separating the burned and non-burned skin, evidence that an expert said showed an “inflicted immersion burn injury.”
     “It means that somebody did this to a child,” Dr. Stephen Ajl testified. “Either a child is placed in hot water and not allowed to move or the child is placed into a tub, for instance, where there is no water and the child is held firmly so they can’t move and then the tub can be filled with water.”
     Dr. Tricia Jean Moriority Gold testified that, while treating the child’s injuries and asking what had happened, the baby replied, “he wouldn’t let me out.”
     Though the court had found the child competent to testify, at the prosecution’s request, the state did not call him as a witness. Duhs chose not to testify.
     He petitioned for federal habeas relief after exhausting his options in state court with regard to his conviction of first-degree assault and endangering a child.
     Weinstein found Tuesday that the record shows a violation of the Sixth Amendment.
     “The witness was available,” he wrote. “It was the obligation of the prosecution to call the boy, not the responsibility of the defendant.”
     Weinstein also noted that this was not a case in which an “angry or intoxicated” defendant has inflicted multiple, intentional injuries.
     “There is insufficient evidence of any attempt to hurt the child,” he wrote. “Without the resident doctor’s testimony relating the child’s declaration – which should have been excluded under the confrontation clause – a jury could not find intent.”

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