Irish nanny Aisling McCarthy Brady, accused of killing a baby in the US, has applied for bail so that she can be released while awaiting trial.

Along with a motion for reasonable bail, Defense lawyers for McCarthy argued that prosecutors have failed to turn over critical evidence they need to defend her against murder charges in the death of Rehma Sabir, of Cambridge, Massachusetts. The one-year-old was hospitalized with severe head injuries in January and died two days later.

David Meier, a defense attorney for McCarthy, advised Judge Haggerty  “we are still waiting for basic, fundamental, mandatory discoveries”, which he claims the prosecutors have not produced in the 11 and half months that his client has resided in prison.

He argues that this makes it “very difficult for the defendant to prepare for trial”.

Some of this evidence, which prosecutors have not supplied, is the child’s death certificate, McCarthy’s personal phone and Itouch, which contain photos and videos of McCarthy with the baby, and as yet prosecutors still have not turned over medical reports about the prior fractures and other evidence vital to defending their client McCarthy.

Meier, advised the court that part of the mandatory discoveries they have received was a set of handwritten notes that were attached to the police reports which are largely ineligible and make it ‘impossible’ to prepare for a murder trial.

The handwritten notes have no information regarding who authored the notes and make no references to the context of the quotes. An example of one of these cited notes was a quote by the mother who allegedly told a police officer on the night the child was admitted to the hospital that she had “No issues with the nanny”. He advised it is impossible to clearly distinguish whom she said it to and in what context.

He further commented that preparing McCarthy’s defense case was further impeded by the fact there is no audio or video recordings of any witnesses questioned in this case and therefore these handwritten notes which are for the best part ineligible are the ‘best evidence’ in existence.

Assistant District Attorney Patrick Fitzgerald when questioned on the authors of the handwritten notes could only confirm that it was four police officers and “It is what it is”.

Meier advised the court that given his client is up on charges on first degree murder, he finds the prosecutors response and their inability to present to the defence team all evidence in this case ‘incredulous’.

To address this, McCarthy’s lawyers have requested that prosecutors hand over all the mandatory evidence still outstanding, that all the handwritten notes are presented in a typewritten version and a list of all persons interviewed including if any prior employers of McCarthy within ten days.

They also say the case against McCarthy is weaker than prosecutors claimed after she was arrested.

Defense lawyer Melinda Thompson believes that the evidence that was previously presented to the grand jury has changed significantly and believes that the judge should consider a reasonable bail motion. Thompson argues that the indictment of her client was based on ‘prior injuries’ that as yet has not been confirmed by any medical evidence or that has been proven to have been inflicted by her client. Also, the defence believes that McCarthy’s indictment ‘ hinges on an opinion’ referring to Dr. Alice Newton, the Medical Director of the Child Protection Program at the Boston Children's Hospital who was sole witness at the grand jury testimony.

"An innocent person sits in jail while we are begging for discovery," attorney Melinda Thompson said during her motion argument.

Judge S. Jane Haggerty said she expects to rule on the bail request Wednesday, Dec 18.

The judge also said she expects to rule by the end of the week on a defence request to dismiss the charges against McCarthy.