Irish nanny Aisling McCarthy Brady, 34, of Quincy, Massachussetts who is accused of first degree murder in the death of one-year-old Rehma Sabir, did not appear at a scheduled hearing at Middlesex Superior Court on Wednesday, November 27.
Ms Brady McCarthy, who is originally from Co Cavan but has been living in America for about 13 years, denies the charges against her.
McCarthy's lawyer Melinda Thompson had previously requested that access to electronic materials would be made available to the defense but in that hearing Assistant DA, Patrick Fitzgerald resisted; saying the request for "all communications" was "too broad."
At Wednesday morning’s court session, the main issue was to determine the appropriate access allowed to the Sabir’s Computer and files which had been preserved a few days after the death of the infant
Assistant DA Fitzgerald advised Judge S Jane Hegarty and the court that the Commonwealth no longer objected to a request to access electronic information held on the computer as long as it did not predate the child’s birth and was relevant to the case.
Also at the hearing was Mr. Elliot Weinstein, a lawyer representing the parents of Rehma Sabir. He spoke on behalf of his clients and advised that whilst the Sabir couple had no objections to the defense team having access to the computer files, they have some concerns about material on the laptop which contain personal and private information and has no relevancy to the case. It was the privacy of this particular electronic material that they were concerned about and did not want to permit access to.
Weinstein stood center court and spoke to Judge S Jane Hegarty about their concerns which he said “fall into three categories”. One related to journal entries that the mother had written predating the birth of her child; another was the private correspondence between husband and wife via emails and lastly, several thousand photographs that were stored.
Weinstein requested the court to establish a confidentiality claim to the email correspondence which would protect the couples right to privacy and ensure that the emails remain ‘privileged”. He requested that if the Defense team still wanted to access this material that the court should determine whether they had relevancy. In relation to the several thousand of photos saved on the laptop they would be secured under a protective order.
McCarthy’s lawyer was keen to express the importance of any electronic information or correspondence after Jan 18, 2012 which would help establish the relationship between the defendant and the Sabir family.  Likewise, photographs after the birth of the child, in particular, those that feature the room with the baby’s changing table were needed.
However, Thompson advised the court that the family’s request for privacy was “appropriate” and that “a protective order is reasonable”.
Judge Hegarty questioned the quantity of emails and photographs on the computer and how could the content of the computer be accessed without breaching the Sabir’s right to privacy. Forensic investigator Melissa Marino explained to the court that it could take up to a week to determine the exact amount of emails in the computer and advised that there was no guarantee she would not see some content of a personal nature. At this point, she also confirmed that she had viewed the journal entries and none were written after the birth of the baby.
The defense lawyer was keen to point out to the judge that accessing the material on the computer was important so she could “defend my client” and believes that the “real story hasn’t been told”. Accessing this material would help determine the true relationship between the Sabir family and Aishling McCarthy as well as help account for any online activity that had taken place on the date the baby was admitted to hospital.
The hearing which was in session for near an hour without any clear decision determined was eventually resolved by the Sabir family lawyer.
Weinstein, advised the Judge that in relation to the email correspondence between husband and wife he would seek a waiver of any privileges from the Sabir’s. Once he had received an answer from them, he would advise the court. This was agreed to be the best course of action and with that decided, the matter of the journal entries and the photographs were easily determined.
All parties having been advised by forensic investigator Marino, that the journal entries predated the birth of the baby were happy to agree that the journal entries were a non issue. In regards to the photographs, those taken from Jan 18 2012 would be available to the defense team but would be secured by a protective order so that copies of them could not be made.
Judge Hegarty indicated that this was all under advisement until Weinstein spoke with the parents and confirmed that decision would be given on the motion for dismissal at a hearing scheduled for December 17.