The lawyer acting for the Irish nanny Aisling McCarthy Brady accused of assaulting a one-year-old baby in her care in a Boston suburb has claimed prosecutors used United States immigration enforcers to keep her client in jail.
Prosecutors said in new court filings that a criminal homicide investigation is still ongoing into the 34-year-old nanny over her alleged assault and battery of Rehma Samir while the child was in her care in January.
The prosecution said that they still “fully and firmly” expect to upgrade the charges to murder.
They claim that the nanny caused head injuries to the child on January 14th at an apartment on Ash Street in Quincy, a suburb of Boston, causing head injuries that led to the death of the child two days later. Ms McCarthy Brady, who has been living illegally in the US since 2002, vehemently denies the charges.
The nanny's defence lawyer Melinda Thompson yesterday denied a claim by prosecutors that there was no harm being caused to Ms McCarthy Brady in jail while a postmortem report on the baby's death was completed.
Ms Thompson sought but the judge refused to hear an application to have Ms McCarthy Brady’s $500,000 bail reduced during a hearing in a court in the Boston suburb of Medford.
In a heated exchange with Middlesex county district court judge Roann Sragow, Ms Thompson said prosecutors contacted US Immigration and Customs Enforcement after bail was set at $5,000 following her arrest in January and had them detain her in police custody for 48 hours.
Prosecutors used the 48 hours to ask a judge the following day to set bail at $1 million, she said. The judge subsequently set bail at $500,000, a sum the Co Cavan nanny has been unable to pay.
Awaiting postmortem report
Ms Thompson said her client has been behind bars for 65 days while awaiting a postmortem report that will determine the charges against her. She said that prosecutors claim there is no harm to the defendant in jail.
“Well, I beg to differ. There’s an innocent person sitting in jail and how dare the commonwealth say there’s no harm to the defendant,” she said.
The judge said there was “no need for personal attacks” and prosecutors were “clearly doing their job”.
“Your honour, this is not personal,” said Ms Thompson, to which the judge replied: “And don’t argue with me.”
Judge Sragow refused to hear a review of the bail, saying it would be "inappropriate" and that the original bail judge would have to re-hear the matter or an application would have to be made to the Superior Court.
The court adjourned a hearing of circumstantial evidence, known as a probable cause hearing showing that the matter is ready for trial, until April 22nd.
"There are some pretty substantial and complex medical issues associated with this case," said assistant district attorney Patrick Fitzgerald.
He asked for the probable cause hearing to be delayed by four weeks as the medical examiner had not made a final ruling on the cause of death and that was an “essential piece of evidence” to determine charges.
The prosecution said in court filings that an active ongoing grand jury investigation into the child’s death should be considered as a factor in the delay and that further microscopic examination of the baby’s brain and eyes were necessary to complete a thorough investigation.
The judge rejected a request from the defence that the hearing be held in 15 rather than 30 days.
Ms Thompson told reporters outside the court afterwards that she couldn’t understand why prosecutors could not have carried out their investigation before charging Ms McCarthy Brady.
“They owe it to my client and frankly to any defendant to investigate a charge before arresting someone and putting out there that she is about to be charged without having the results of an autopsy which could frankly change the charges,” she said.
Pre-existing injuries
The lawyer said there were "a lot of people" with the child during the day and the night before police were called to the Rehma home and that the child had pre-existing injuries dating back two months before her death.
“My client wasn’t alone with the child alone for more than a week during that period,” she said. Ms Thompson agreed with a suggestion that prosecutors have been playing games with Immigration and Customs Enforcement to keep her behind bars. “That’s how I see it,” she said.
She claimed that they used Immigration and Customs Enforcement to detain her for 48 hours despite bail being set earlier at $5,000, and that they used this time to argue for immigration not to deport her while they sought a higher bail. The nanny “would be a lot closer” to posting $5,000 bail than the $500,000, she said.
The lawyer described her client as “terrified” and “devastated” – “she is in jail for something she didn’t do and she is having a really, really hard time,” she said.
Ms Thompson said she didn’t know whether she wouldn’t make an application to the Superior Court to have the level of bail reduced. The prosecution has also not provided her with any discovery, she said.
