US soldier convicted of aggravated assault in death of infant son, acquitted of murder
Stars and Stripes May 12, 2023
VILSECK, Germany — An American soldier serving at a base in Bavaria was sentenced Friday to five years in prison and dishonorably discharged for causing grievous bodily harm to his infant son shortly before the boy’s death two years ago.
Sgt. Nicholas Gubitosi, 25, had faced murder charges and one related charge of maiming at a two-week court-martial on Rose Barracks.
But he was convicted of the lesser included charge of aggravated assault, suggesting that although jurors believed that Gubitosi seriously abused his 6-week-old son Anthony, they weren’t convinced that the abuse alone caused his death.
The verdict appeared to stun prosecutors, who earlier had described the crime as an “open and shut” case of murder.
Gubitosi, who was assigned to a 2nd Cavalry Regiment Stryker squadron at Rose Barracks, told investigators that on Feb. 28, 2021, his frustration over Anthony’s crying led him to shake the baby so severely that he needed to be hospitalized.
Dr. Andreas Fiedler, a pediatric neurologist who testified for the prosecution, likened Anthony’s injuries to those that a person in a car crash at 60 mph would have.
At the hospital, Anthony was put on life support. Initial scans and examinations indicated he’d been abused and suffered from shaken baby syndrome, according to testimony by medical officials, who said blood was detected in every part of his brain.
“I destroyed everything. I’m a monster,” Gubitosi wrote days later in a text message to his wife, according to evidence presented in court.
Anthony was taken off life support on March 23, 2021, and died that day.
“I ruined my son’s future,” Gubitosi told an agent in a recording played for the court.
When asked by the agent whether he would have done anything differently if he could go back in time, Gubitosi can be heard crying and saying, “I would have stopped myself.”
But on the witness stand Tuesday, Gubitosi said the agent pressured him into admitting to shaking Anthony the day he was hospitalized even though he had no memory of doing so.
Gubitosi said he invented the story because the agent convinced him that his mind had blocked out the traumatic event and that he must have done something to Anthony as he was the only one watching him the day everything happened.
The defense argued that Gubitosi’s wife was responsible for Anthony’s injuries. Gubitosi’s lawyers provided text messages in which she expressed frustration with the baby, saying that it showed she had a motive.
The defense presented no direct evidence that Gubitosi’s wife shook Anthony, and she said she never did so, both in court and in her interview with Army criminal investigators. Gubitosi initially told investigators he shook Anthony on three separate occasions.
The trial included several intense moments.
Defense attorney Lt. Col. Jenny Schlack asked one witness whether he was intoxicated because she said she could smell alcohol on him. The judge, Lt. Col. Tom Hynes, denied her request to force the witness take a breathalyzer test.
During the prosecution’s closing arguments, Gubitosi’s mother began screaming in the gallery, ran out of the courtroom and collapsed. An ambulance was called, but she returned later in the day.
Prosecutors argued that Anthony’s injuries and irreversible brain damage that led to his death all happened hours before he was hospitalized, during a time period that Gubitosi testified he was alone with the child.
Several medical experts who testified said the baby was likely injured no more than eight hours before emergency services were called and possibly just minutes before.
Aashim Bhatia, a pediatric radiologist and witness for the defense, was the only medical expert to say Anthony’s brain injury likely happened days before he went to the hospital. Anthony was also found to have a broken rib that was already healing.
The defense said this evidence suggested that Anthony was abused prior to Feb. 28, 2021, when he may have been in the care of his mother, and that the injuries that led to his death may not have happened all at once.
In addition to the prison sentence and the dishonorable discharge, Gubitosi will be reduced to the rank of E-1 and must forfeit all pay and allowances. He received the maximum sentence for the aggravated assault conviction, as prosecutors requested.