Justice 

Shaken baby petition denied

Missoula County prosecutors secured a victory last week when a Fourth Judicial District Court judge denied an exoneration attempt by Robert “Dave” Wilkes, who was convicted in 2009 of killing his three-month-old son.

“I’m really relieved that the science won out in this case,” says Assistant Chief Deputy County Attorney Suzy Boylan, the prosecutor at Wilkes’ trial.

Boylan says cases involving a child’s death are always emotional, but the complexity underlying the Wilkes prosecution made this one especially trying. Shortly after Wilkes picked his son up from a babysitter’s house and took him back to their apartment on Oct. 4, 2008, the little boy, Gabriel, stopped breathing. The infant was hospitalized and died 22 days later. Wilkes said later that he never struck his son, nor did he hurt him in any way. Wilkes had no idea what happened.

During his trial, doctors who treated Gabriel attributed his death to what’s called “abusive head trauma” or “shaken baby syndrome.” The diagnosis dates back to 1971, when pediatric neurologist Norman Guthkelch warned colleagues that subdural and retinal bleeding and brain swelling in children, known as the “triad,” presented reason to suspect abuse. Gabriel presented with the triad.

Since the 1970s, however, doctors have proved that the triad can stem from other ailments, including viral and bacterial infections, blood-clotting disorders and liver disease. Evolving science has prompted judges and juries during the past 15 years to reverse SBS convictions in Michigan, Wisconsin and Iowa.

In a petition for post-conviction relief filed on behalf of Wilkes by the Montana Innocence Project, attorneys argued that his conviction was based on antiquated science and presented six experts who disputed that Gabriel died from abuse-related injuries. One of those experts, forensic pathologist Peter J. Stephens, asserted that Gabriel died from a rare liver disease.

In his April 2 opinion, Judge Ed McClean wrote that he didn’t buy the experts’ claims. “The detractors who challenge the diagnosis of ‘shaken baby syndrome’ now known as ‘abusive head trauma’ do not appear to have the support of the medical profession,” McLean wrote. The judge added that “pure second guessing … does not warrant a new trial.”

Wilkes is serving a 40-year prison term. Innocence Project attorney Brendan McQuillan declined to comment for this article other than to say, “We plan on appealing.”

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