Robert "Dave" Wilkes hustled to get done as soon as possible. He was moving from a one-bedroom apartment on Third Street to a larger one in the same building, and his young son, Gabriel, was being watched by a neighbor. It was Oct. 4, 2008, just one day before Gabriel turned 3 months old, and the infant was suffering from an upset stomach. In addition to handling the move, Wilkes dropped off some Tylenol for his neighbor to give Gabriel. It was a hectic day, but Wilkes says he didn't mind. He always wanted to be a father.
Around 8 p.m., Wilkes finally finished moving his things and picked up Gabriel from the neighbor's apartment. He hadn't set up the crib yet, so Wilkes laid his son down on a thick quilt in the bedroom. When Wilkes went to the living room and cracked open a soda, he says he heard gurgling and rushed to check on his son.
"When I picked him up, his head lolled to the side," Wilkes recalls on a recent fall afternoon.
Gabriel vomited. Wilkes brought his son from the bedroom to the living room, but Gabriel had stopped breathing. Wilkes started chest compressions on the living room futon.
"He wasn't coming to," Wilkes says. "His face kept getting redder."
Wilkes couldn't find his phone. In the panic, he says he forgot it was in his back pocket. When he ran to the neighbor's house, the one who had taken care of Gabriel earlier in the day, he screamed at her to call 911.
By the time EMTs arrived, Gabriel wasn't responding.
"It was kind of a blur after that," Wilkes says.
Gabriel's mom, Sonja Wilson, was working in the Missoulian packaging department when she got the call from a Community Hospital receptionist that her son wasn't breathing. The receptionist said Wilson should hurry.
She still remembers the scene inside the hospital room.
"The first thing I saw was my son laying on the trauma table with like eight doctors and nurses standing around himyou know, trying to revive him, giving him CPR, hooking him up to monitors," Wilson says.
She then realized Wilkes was in the room, to the right of the door.
"There was Dave sitting on a stool with his knees up to his chest with his hands to his face and he was bawling," Wilson says.
Wilkes and Wilson sat together at the hospital until 1 a.m. Missoula Police Department detectives then came and took them to the police station. They questioned both parents, as well as the babysitter, about what had happened that day.
"That whole time I highly believed Dave didn't do anything," says Wilson.
Wilkes told the police the same thing he had told the doctors and the same thing he would later tell a jury: He didn't know what had happened to Gabriel. He didn't know what went wrong.
Four years to the day after his son got sick, Wilkes, now 41, sobs quietly inside the Crossroads Correctional Facility in Shelby, where he's serving 40 years for deliberate homicide. Gingerly, he picks up a photo of Gabriel wearing a blue jumper. It's the only photo Wilkes has of his son, and he keeps it tucked away in an old Father's Day card in his cell. Wilkes says it's hard to look at the photo.
"He looked so much like me," Wilkes says.
Three weeks after Gabriel got sick and stopped breathing inside Wilkes' new apartment, Gabriel died. The autopsy showed signs of subdural and retinal bleeding and brain swelling. These symptoms are known as the "triad," and have traditionally been used to diagnose shaken baby syndrome.
SBS is now more frequently referred to as "non-accidental head trauma." There is no official record of how many people are prosecuted for inflicting high-force trauma on children in their care. Some experts estimate that as many as 200 individuals face such charges annually in the United States.
Authorities considered Wilkes a suspect in his son's death from the beginning. They believed he was stressed from caring for a newborn and managing the move into a new apartment, and accused him of violently shaking or slamming Gabriel. That was the prosecution's explanation of what happened when Wilkes went to trial on Dec. 14, 2009.
"(Gabriel) died in Spokane in a hospice, after sustaining devastating, life-ending brain injuriesinjuries inflicted by this defendant, his own father, the day before he turned 3 months old," said prosecutor Suzy Boylan.
The babysitter who had cared for Gabriel testified that she smelled alcohol on Wilkes' breath on Friday night, the night before Gabriel got sick. She also smelled it on Saturday when Wilkes picked Gabriel up.
Boylan said the CAT scan and MRI immediately prompted Community Medical Center doctors to suspect Gabriel's injuries resulted from abuse. The child, Boylan said, sustained "severe non-accident trauma to the braintrauma that requires a great deal of force to be inflictedthe kind of force you would see in a motor vehicle accident, or a fall from a great distance."
Nine medical experts testified against Wilkes during the trial. Rich Kaplan, medical director for the Center For Safe and Healthy Children at the University of Minnesota, testified that he and several other doctors involved in Gabriel's case had thoroughly examined Gabriel's medical records and ruled out other potential causes of his symptoms.
"I was impressed with both hospitals not jumping right on the abuse bandwagon, but doing careful examination to make sure there wasn't anything else," Kaplan testified.
When questioned about the fact Gabriel had no other visible signs of injury, aside from a small bruise on his back, Kaplan said that's not uncommon with non-accidental head trauma, "because babies' bones bend a lot before they break."
Kaplan went on to say that because Gabriel had taken a bottle before leaving the babysitter's house, the injuries must have happened in Wilkes' care.
"I think it would be almost inconceivableafter he sustained such terrible brain injuriesthat he could be able to have the neurological wherewithal to suck and swallow in a coordinated fashion," Kaplan said.
When reached by the Independent, Kaplan explained that the sudden onset of Gabriel's symptoms indicate that he was badly injured just before the little boy got sick.
"This kid was really out of it the minute he was assaulted," Kaplan says.
Kaplan also told the Independent that he doesn't believe Wilkes intended to hurt Gabriel. Typically in abuse cases like this one, parents get frustrated. "Most of these folks just lose it," he says.
But Wilkes maintains he never lost it. Yes, things were hectic. He had full custody of his son and was learning parenting basics on the fly. Sonja Wilson says her previous partner had abused her daughter, and that prompted the Montana Child and Family Services Division to intervene. Because of Wilson's ongoing legal problems, she lived apart from Wilkes and Gabriel, leaving Wilkes as a single parent. Wilson continues to stand by Wilkes' account and supports his case.
Moving to a new apartment complicated things that day, but not to the point of setting Wilkes off. In fact, he has always maintained that he didn't shake, drop or slam his son. He knew something must have happened to Gabriel, so he wasn't surprised when police questioned him.
"I was like, 'Okay, I understand that. I'm his father. I [was] there," Wilkes says. "It's not like a ghost came in and did something."
Only recently has a new explanation emerged of what that "something" could have been.
In fall 1995, Audrey Edmunds was a housewife living in a large suburban ranch home north of Madison, Wis. She was raising her two young children and pregnant with a third. Because she liked caring for kids, she started babysitting for her neighbors.
On the morning of Oct. 16, Cindy Beard brought her 6-month-old daughter Natalie to Edmunds' house for childcare. Beard told Edmunds that Natalie hadn't slept well the night before and didn't finish her morning bottle. Edmunds tried to feed Natalie while keeping an eye on her two kids and another child in her care that Monday morning.
"She was very fussy, which was not uncommon," Edmunds recalls. "She never took a bottle real well. It took her quite a while and she had trouble sucking."
Edmunds needed to ready the three other children for their morning walk to preschool, where one of the youngsters would be dropped off, and she set Natalie in the master bedroom with a bottle. When Edmunds picked Natalie back up a few minutes later, the little girl's head tilted to the side and formula came out of Natalie's nose. Edmunds thought Natalie was choking. When Edmunds patted her on the back, Natalie didn't respond.
Edmunds called 911. The operator told her how to do CPR.
"I'm frantic," Edmunds says. "I'm feeling terrible that I caused her to choke, because I left her with a propped up bottle."
Formula continued to come out of Natalie's mouth while Edmunds performed CPR. Once EMTs arrived, Natalie was flown to the hospital and Edmunds waited to hear news from the girl's parents. That evening, she learned that Natalie had died.
An autopsy showed Natalie exhibited hallmark non-accidental head trauma symptoms. "Everybody was going back to the 1971 triad," Edmunds says, referring to when the combination of injuries first emerged as an explanation of SBS.
In November 1996, Edmunds was convicted of first-degree reckless homicide. She was sentenced to 18 years in custody, with the first eight years in a maximum-security prison. Her children at the time of her conviction were 9 months old, 2 and 5. For about five of her years in prison, her kids came to visit nearly every weekend. After Edmunds' husband divorced her, the visits became less frequent.
Edmunds lost an initial appeal in 1999, but in 2003 the Wisconsin Innocence Project took her case. By then, scientists had begun to cast doubt on the SBS diagnosis. During a 2007 evidentiary hearing to debate whether Edmunds should have a new trial, the forensic pathologist who testified against her during the first homicide trail said that, contrary to his initial opinion, Natalie's injuries could have been sustained prior to her time in Edmunds' care.
In 2008, the Wisconsin Fourth District Court of Appeals cited a shift of thought in mainstream medicine on SBS when it overturned Edmunds' conviction. The prosecution opted to not try her again.
"There are now competing medical opinions as to how Natalie's injuries arose," the court said, citing a "legitimate and significant dispute" within the medical community about the triad.
Edmunds, now 51, works at a convenience store in a St. Paul suburb. A book about her prosecution, It Happened to Audrey: A Terrifying Journey from Loving Mom to Accused Baby Killer, came out Nov. 15.
The Montana Innocence Project began investigating Wilkes' case in spring 2011. Innocence Project Executive Director Jessie McQuillan says her staff was struck by Wilkes' consistent and simple account of what happened the night Gabriel first got sick, as well as the prosecution's reliance on the triad.
"A few things caught our eye off the bat," she says. "The fact that (Wilkes) had been accused of child abuse, and there were no external signs of abuse, and the fact that there was no history of abuse."
In addition, the science behind non-accidental head trauma has changed significantly since the triad diagnosis emerged more than 40 years ago. In 1971, pediatric neurologist Norman Guthkelch warned colleagues that the triad alone presented reason to suspect abuse. Since Guthkelch's findings, doctors have proved that the triad can stem from various other ailments, including viral and bacterial infections, blood-clotting disorders and liver disease.
These evolving medical discoveries have complicated child abuse prosecutions. The debate over non-accidental head trauma constitutes one of the most contested issues in forensic pathology today. Some doctors say that it's impossible to shake an infant severely enough to cause life-ending injuries and leave no other signs of abuse. Others say to discount the diagnosis only provides shelter for child abusers.
While the debate continues, courts are reconsidering SBS cases nationwide. During the past 15 years, judges and juries have taken new science into account when reversing SBS convictions in Michigan, Wisconsin and Iowa. In October, an Arizona judge tossed out SBS-related murder charges against Drayton Witt, who was convicted in 2002 of killing his 4-month-old son. Witt is the second Arizonan since 2010 to have an SBS-related murder conviction reversed.
At the beginning of this year, the Montana Innocence Project asked five medical experts from across the nation to undergo a comprehensive medical review to find what could have caused Gabriel's death. Forensic pathologist Peter J. Stephens discovered that Gabriel suffered from a rare liver disease that caused the triad. Northwestern University School of Medicine pediatrics professor Peter Whitington also found liver abnormalities. Armed with the new evidence, Innocence Project attorneys in September asked Missoula's Fourth Judicial Court to hold another trial for Wilkes.
"There's another whole side of this story," McQuillan says, "that wasn't told, that wasn't even explored."
When DePaul University College of Law professor and former prosecutor Deborah Tuerkheimer heard about Wisconsin homemaker Audrey Edmunds' case, she imagined there had to be others like her.
"If the science had changed enough to warrant a new trial for Audrey Edmunds, then it seemed to me there were likely lots and lots of other cases that fell into the same category, that should at the very least be revisited," Tuerkheimer says in a recent phone interview with the Independent.
The problem is that scientists' opinions run the gamut, but the legal system deals in black and white. Tuerkheimer says that Canada and the United Kingdom have initiated reviews of triad-based prosecutions, but the United States has not. She believes that new science calls into question thousands of convictions.
"Notwithstanding these rather seismic shifts in medical thinking, the criminal justice system haswith only rare and recent exceptionbeen unyielding to new thinking about a diagnosis that proves a crime," Tuerkheimer says.
High-force trauma cases such as Edmunds' and Wilkes' almost always boil down to a battle of the experts, and a doctor's time doesn't typically come cheap. That means the accused who get new trials, those who are acquitted, are the fortunate ones, Tuerkheimer says.
"Those are cases where people have really good experts, and they either do because they've got the money to hire a good lawyer and get good experts or because they're fortunate enough to have an Innocence Project with the resources and the smarts to do these cases right," she says. "There is an inequality that tends to run through all of this."
In Wilkes' case, the Innocence Project's petition alleges that the prosecution relied on antiquated science and that the defense badly erred when failing altogether to mention the long-raging debate surrounding SBS. Kaplan, one of the prosecution's expert witnesses, says he's following up on the Innocence Project's findings. He has sent a sample from Gabriel's liver to a colleague and awaits the results.
Wilkes' public defender, Scott Spencer, said in an affidavit on file with the Innocence Project that he saw no way to cast doubt on the prosecution's expert testimony.
"This was a very difficult case for me as the defendant insisted that he did not harm the child," Spencer says in the affidavit. "Yet nothing could be found to overcome the medical opinions, both from the state and from our expert. If there was a different line of attack on the medical testimony, I was not able to find it."
Prior to the trial, Spencer consulted with Thomas Bennett, a Billings-based forensic pathologist. Bennett examined Gabriel while the child was hospitalized in Spokane and he agreed with the prosecution's medical experts that it appeared the infant had been abused.
Bennett has extensive experience with SBS. In 1999, The Los Angeles Times published a lengthy article detailing his work diagnosing the syndrome while serving as Iowa's chief medical examiner. Between 1989 and 1997, Bennett autopsies identified 17 SBS-related cases. Three caregivers prosecuted with his findings were later cleared.
Bennett says that after he visited Gabriel in Spokane, he reported back to Spencer. After that, he didn't hear from the attorney again. "I didn't get to see the autopsy report, I didn't get to see the autopsy in general," Bennett says. "If they determine they don't need any more work by you, then you don't work for them anymore."
The Innocence Project says in court filings that Spencer's failure to mention the controversy surrounding SBS is "inexcusable."
Spencer declined an interview request from the Independent.
Wilkes isn't the only one facing a triad-based prosecution in Montana. On Nov. 14, District Judge James P. Reynolds sentenced 26-year-old Michael Reim of Helena to 10 years in the Montana Department of Corrections' custody for aggravated assault. Reim was convicted of inflicting high-force trauma onto his 6-month-old son.
Reim's attorney, public defender Jennifer Streano, requested the judge decide the case, rather than a jury, because of its complexity. The Reim case centered on two triad symptoms and, after digesting the massive amount of technical information presented by experts, the judge found the child, referred to as A.R. in court documents, sustained "a serious and protracted loss or impairment of the function of the brain and eyes."
During Reim's trial, prosecution experts, including Robert Stears, a neuroradiologist from St. Vincent's hospital in Billings, found after examining high-tech brain scans that A.R. sustained non-accidental trauma. Other doctors, including physicians from St. Vincent's and the Primary Children's Medical Center in Utah, concurred.
Michael Laposata, a clinical pathologist at Vanderbilt University Medical Center who volunteered his time on behalf of the defense, said that A.R. had a blood clotting disorder that was responsible for the symptoms. Two doctors from Stanford University Medical Center agreed that A.R. suffered from illness, not trauma.
"They are looking at the same thing, and come up with two different conclusions," says Reim's defense attorney.
Experts also disagreed on the case of Nevada Ugalde, a Billings resident. Ugalde told law enforcement she briefly left 8-month-old Isaiah Napier in a crib on June 11, 2008. When Ugalde came back from doing laundry, she found that Isaiah had fallen onto the floor.
Doctors found significant brain injuries, and prosecution witnesses testified during Ugalde's trial that there was no way Isaiah could have hurt himself that badly simply falling from his crib. The crib was 32 inches above a carpeted floor.
Ugalde's public defender, Tanya Dvarishkis, says that her client, who was 20 when she was charged, consistently refused to admit guilt even when offered increased visits with her own son.
"You get to know people as a defense attorney," Dvarishkis told the Independent. "This girl just didn't have it in her."
John Plunkett, a Minnesota-based forensic pathologist, testified on Ugalde's behalf and called the triad bad science. "It's bunk," he told the Independent in a recent interview.
Despite Plunkett's testimony, Ugalde was sentenced to 15 years in prison and ordered to pay $1.4 million in restitution to help cover Isaiah's future medical needs.
The Billings Gazette reports that, as of last year, Isaiah "had four surgeries on his eyes, must wear braces on his legs and is attending classes at a special-education school and taking speech therapy to learn to talk."
A.R. has recovered and is living in foster care.
Wilkes had a bad feeling during his trial. He could tell the jury hadn't warmed to him or his story because they wouldn't make eye contact. He concedes that his tattoos and gruff voice may not have helped matters. "A lot of it might have to do with my image," he says.
Before he was charged, Wilkes would read newspaper articles about parents who hurt their children. He became angry thinking that an adult could do that to a child. Wilkes doesn't rush to judgment so quickly these days, he says. "Crazy way to go about changing your thinking, huh?"
Wilkes tries to keep busy in prison and reads a lot. He likes Tom Clancy and Steven King, especially King's novella, Rita Hayworth and Shawshank Redemption. Wilkes identifies with the story's protagonist, Andy Dufresne, an innocent man who's sent to jail for killing his wife and her lover.
"Andy Dufresnehe got his against the system," Wilkes says. "I can relate with that."
If the Innocence Project's attempt to exonerate him fails, Wilkes won't go before the parole board until 2017. He says he doesn't see parole as likely. "I can't blame them, because if somebody was guilty of what they charged me with, I wouldn't give them a chance," he says.
In the meantime, Wilkes marks Gabriel's birthday every year. He also commemorates the day his son died. Among the things that most troubles Wilkes is that his son's ashes remain in a purple drawstring bag tucked away at Wilkes' brother's house. Gabriel never had a funeral service or memorial.
"I think about that constantly," Wilkes says. "It's just unfinished."This story was updated on Dec. 7.