Camden defense attorney Jeremy Pratt filed a brief for the appeal of Shawna Gatto, 45, currently being held at Maine Correctional Center in Windham, with the Maine Supreme Judicial Court on Jan. 21. Gatto was convicted of the December 2017 depraved indifference murder of her fiance’s granddaughter, Kendall Chick, 4, of Wiscasset. Gatto opted for a bench trial, held last April.
One of the grounds for appeal Pratt cited stemmed from a procedural matter before trial. On Aug. 30, 2018, Pratt made a motion in limine to allow cross-examination of Maine’s Medical Examiner, Dr. Mark Flomenbaum, about his removal as Massachusetts Chief Medical Examiner. Flomenbaum was removed after his office released a body to the wrong family and it was buried in the wrong grave. Justice William Stokes denied the motion, preventing the jury from hearing about Flomenbaum’s history, which was complicated by the medical examiner’s lawsuit against Massachusetts denying the new governor’s right to fire him, since Gov. Mitt Romney had signed a five-year contract with Flomenbaum and promised the troubled department increased funding which was not forthcoming, according to court records.
Pratt’s brief asserts it was an abuse of the Lincoln County Courts to deny Gatto the opportunity to cross-examine Flomenbaum “on his shortcomings as Massachusetts’ Chief Medical Officer.” He cited the Maine Rule of Evidence 608 (b), which states a court may allow cross-examination inquiring into specific instances of a witness’ conduct “if they are probative of the character for truthfulness or untruthfulness of the witness.”
In addition to the loss of Flomenbaum in Massachusetts, Pratt cited a part of the trial in which he had asked Flomenbaum if he conducted iron staining on cells that grew after Chick’s pancreas had suffered trauma. Flomenbaum said he had not because his lab did not have the necessary equipment to do it. He said he did not send it to another lab because no blood was present and the test would not have revealed any information; Pratt’s expert witness refuted that assertion. Pratt said that since Flomenbaum’s testimony that Chick could not have survived more than three to six hours after the pancreas injury was pivotal, “removing from the universe of suspects anyone but my client,” the lack of ability to impeach him based on past behavior was key.
The other ground for appeal involved Pratt’s and Gatto’s assertion Gatto had not committed depraved indifference murder, citing reasonable doubt Gatto caused the fatal pancreatic injury. Pratt said there was insufficient evidence to prove beyond a reasonable doubt Gatto had caused that or any other injury.
Gatto was sentenced to 50 years in prison for the murder.
The state’s brief is due by Feb. 28. Oral arguments are not yet scheduled.