GABRIEL WILKES - 3 months (2008) - Missoula MT

A Missoula man was convicted Friday of deliberate homicide for
killing his 3-month-old son, who died a year ago of injuries
consistent with shaken-baby syndrome.

Robert J. Wilkes, 38, was charged with the murder after doctors
determined the baby died of brain injuries caused by nonaccidental
abusive head trauma. Experts testified this week that the trauma
likely occurred under the father’s care.

There were no eyewitnesses in the case, however, so it was
impossible for investigators to pinpoint what kind of trauma caused
the injuries. One child abuse expert likened the brain trauma to
what a child might sustain during a three-story fall or a
high-speed car crash.

Wilkes has maintained his innocence, and denied at trial that he
did anything to hurt his son, Gabriel. He was raising the child as
a single parent.

The jury of nine men and three women deliberated less than four
hours over two days before returning a unanimous guilty verdict
Friday morning. The trial began Monday in the 4th Judicial District
Court of Missoula with Judge Ed McLean presiding.

Before beginning their deliberations, jurors were asked to pit
expert medical testimony against Wilkes’ denials that the trauma
could have occurred under his watch.

The medical evidence showed that Gabriel would have exhibited
symptoms of severe brain damage immediately, losing important motor
skills, including the ability to breathe and eat. That evidence is
at odds with earlier, undisputed testimony that Gabriel behaved
normally on the evening of Oct. 4, 2008, and fed from a bottle when
Wilkes arrived to pick him up at a babysitter’s neighboring
apartment.

An hour later, Wilkes was back at the apartment holding a "limp,
cold and unresponsive" infant, said Deputy Mis-soula County
Attorney Suzy Boylan.

If the child’s injuries had been inflicted under someone else’s
care such as the babysitter’s, who was a primary suspect early on
in the investigation the child would not have been able to take the
bottle, according to Dr. Rich Kaplan, a pediatrician from the
University of Minnesota who testified as an expert witness for the
state.

"I would say that it is almost inconceivable that after sustaining
such injuries he would have had the neurological wherewithal to
feed effectively," Kaplan testified Thursday.

Wilkes has been on conditional release for months pending trial.
Following Friday’s guilty verdict, Judge McLean remanded him to the
Missoula County Detention Facility and set bail at $100,000.

Sentencing is scheduled for Feb. 17.

A Missoula man was sentenced to 40 years in prison with 10 years
suspended on Wednesday for killing his 3-month-old son during what
prosecutors say was a "rageful" act.

Robert J. Wilkes, 38, was convicted of murdering his infant son
in December after jurors determined the baby died of brain injuries
caused by non-accidental abusive head trauma. Child abuse experts
testified at trial that the trauma was consistent with shaken baby
syndrome and could only have occurred under the father's care.

There were no eyewitnesses in the case, making it impossible for
investigators to pinpoint what kind of trauma caused the injuries.
One child abuse expert likened the brain trauma to what a child
might suffer during a three-story fall or a high-speed car
crash.

Wilkes has maintained his innocence all along, and wept during
Wednesday's sentencing hearing, saying that he missed his son,
Gabriel.

"I love my son, your honor," Wilkes said. "I miss him every
day."

Wilkes repeatedly denied at trial that he did anything to hurt
the infant, and Missoula District Judge Ed McLean said the length
of the prison sentence was due in part to the defendant's lack of
accountability.

"Although you may feel remorse for Gabriel's death, you do not
accept responsibility," McLean said.

The prison sentence was much harsher than the Department of
Corrections commitment that Wilkes' defense attorney advocated for,
but it was a departure from the state's recommendation of life
imprisonment.

Deputy Missoula County Attorney Suzy Boylan called the defense's
proposed sentence of 30 years in the Department of Corrections with
25 years suspended "an absolute insult to the memory of this
child," and said life imprisonment would mean that Wilkes was
parole eligible in 30 years.

"This was not an accident. This was not negligence. And in fact
the jury rejected" the lesser included offense of negligence during
deliberations at trial, Boylan said. "The evidence showed this was
a violent and repetitive and rageful act."



Public Defender Susan Boyer, who was co-counsel
for Wilkes at trial, said her client suffers from pulmonary illness
related to smoking and spent a portion of his childhood in
Libby, where asbestos-laced vermiculite has been linked to lung
disease.

Boyer said Wilkes did not intend to have more children and did
not pose a threat to the community. Under a DOC commitment, he
would live with family in the Missoula area.

Boylan spurned the notion that Wilkes should be given any credit
for his illness, and said a 40-year prison term with 10 years
suspended meant he would be eligible for parole in 7 1/2 years, and
even less than that given the jail time he has already served.

"Given the fact that Gabe only lived three and a half months, I
don't think a lot of mercy should be bestowed on this defendant
because of medical issues," she said.

When McLean imposed the prison term, he noted that it conformed
with the sentence recommended by a probation officer who performed
the pre-sentence investigation in the case. The judge also ordered
that Wilkes complete a host of psychiatric and behavioral
evaluations before he is released into any community setting.

"It is the court's opinion at this time that you do present a
danger to the community and that there is no accountability,"
McLean said.

Two years ago, Robert J. Wilkes of Missoula was a single father
who had just won custody of his 3-month-old son, Gabriel.

Today he stands convicted, despite his denials, of knowingly
killing his own child.

"The extent of the damage and the custody of the child - there
was no other possibility," juror Allan Oines said after the
trial.

Wilkes cried at trial when authorities played a 9-1-1 recording
of the desperate call to report Gabriel's grievous injuries. An
earlier Missoulian report quoted his insistent denials.

"It makes me angry that my son is dead," he testified. "It makes
me angry that I'm the one accused of his death. I don't know who
did it. But I had no reason to get mad at my son. He was 3 months
old."

Multiple doctors pointed to bleeding in the brain and eyes
visible by medical imaging. Their diagnosis: abusive head trauma,
more commonly known as shaken baby syndrome. This conclusion and
his own testimony led authorities to charge Wilkes - and not
another suspect - as the child's killer.

Wilkes' story of what happened Oct. 4, 2008, never changed.

He spent the day moving between apartments in the same complex,
leaving Gabriel with a neighbor. He chatted with her when he
returned and fed his son a bottle of formula. At home, he laid
Gabriel on the floor to rest, grabbed a drink from the kitchen and
turned on the television.

Wilkes said when he checked back a few minutes later, he found
Gabriel vomiting from his nose and mouth. Unable to find his cell
phone, he rushed next door and cried for the sitter to call
9-1-1.

She saw him holding an unresponsive, limp baby who was
struggling to breathe. She followed the dispatcher's directions and
performed CPR as they waited for an ambulance.

ER physicians at Missoula's Community Medical Center treated the
child initially, but soon evacuated him to a Spokane hospital
specializing in pediatric medicine and better equipped to care for
Gabriel's severe neurological injuries.

But nothing worked. Doctors feared the child would remain
forever in a vegetative state, so Gabriel was eventually removed
from life support.

Wilkes was sentenced Wednesday to 40 years in state prison for
deliberate homicide, with 10 years conditionally deferred.

***

At first, Deputy Missoula County Attorney Suzy
Boylan wasn't sure she could build a case against Wilkes. With no
witness, no motive, no history of abuse and no discernable guilty
behavior, the case would hinge on a jury's ability to deduce guilt
or innocence from indirect evidence.

"Child abuse cases are by nature circumstantial," Boylan said.
"In 11 years, we've only had two, maybe three, shaken baby cases
that could be charged."

The Spokane physicians who treated Gabriel and the medical
examiner who conducted his autopsy found bleeding in his brain and
all four quadrants of his eyes, Boylan said. The sudden signs of
brain damage were the result of "non-accidental trauma," court
records said.

But the medical testimony alone wasn't quite enough. It would be
difficult to prove - beyond a reasonable doubt - that the injuries
occurred while in the father's custody and not the baby sitter's
care, since she supervised Gabriel just an hour earlier.

Under questioning by Missoula Police Detective Dean Chrestenson,
Wilkes continued to assert his innocence. Gabriel's attending
physicians would testify, but Boylan needed a pediatric specialist
to fit the pieces together in a way jurors could understand.

Montana's only pediatric neurologist had recently retired, so
Boylan turned to Dr. Rich Kaplan, a certified child abuse
pediatrician from Minnesota. Kaplan was a familiar name, having
trained Montana lawyers, investigators and child protection workers
at workshops and conferences.

Kaplan's analysis of the medical records, combined with one
crucial detail from Chrestenson's investigation, gave Boylan the
key to her case.

"They said it's all about the bottle," she said.

Both Wilkes and the baby sitter confirmed that Gabriel fed from
a bottle just before his father took him home.

It was "almost inconceivable," Kaplan eventually testified, that
the child could have fed effectively after sustaining such severe
injuries. He said the nerves that tell the body when to eat,
breathe and sleep had been violently sheared and it had happened
under the father's care.

With that, Boylan had her case.

"Brains just don't go kablooey without a cause," she said.

Wilkes was charged in late March 2009, nearly six months after
the chilling 9-1-1 phone call.

***

Since pediatric radiologist Dr. John Caffey
first described a "triad" of brain and eye injuries as shaken baby
syndrome in 1974, investigators and prosecutors have seized the
opportunity to catch previously elusive child abusers and
killers.

But while medical evidence of violent trauma has helped convict
thousands, it also can lead to wrongful convictions.

Scientists' understanding of what exactly causes these traumatic
injuries evolved the way science does: with theories, questioning
and research. Over time, serious uncertainties developed about
whether the combination of intracranial bleeding, retinal
hemorrhages and brain swelling exclusively resulted from forceful
shaking.

They learned these particular abusive injuries can be difficult
to distinguish from ones caused by some blood disorders, vitamin
deficiency and other nonviolent means.

"A certain percentage of babies get just a little bit of blood
(between the skull and brain) just from being born," said Kaplan,
referring to a report last year by British researchers evaluating
newborns who had not yet left the hospital.

But Kaplan questions some of the research contradicting the
diagnosis. He says a thorough analysis by a well-trained abuse
expert considers more than the three variables once thought
conclusive. Experts also should look for specific forms of bone
fractures, evaluate the placement and contour of skull injuries,
and test all potential causes.

By itself, biomechanical research is limited by the
impossibility of re-creating rage and other actual conditions of
abusive head trauma in a lab, Kaplan said.

"All this research shows so far is you can't shake a crash test
dummy hard enough to hurt a baboon," he said.

***

No one claims child abuse is a myth. But
scientific controversies are rarely resolved in courtrooms where
jurors, judges and lawyers - who often have little scientific
expertise - must determine guilt or innocence.

And each case is different.

Boylan learned about the scientific debates as a staff attorney
for the National Center for the Prosecution of Child Abuse and
carefully avoids using the term "shaken baby syndrome" in
court.

She and Kaplan said that without careful analysis and an updated
understanding of the diagnosis, the signs of abuse also could be
mistaken for nonviolent ones and certainly do not limit the cause
to shaking only.

The American Academy of Pediatrics encourages physicians to
thoroughly investigate alternative causes before issuing their
final reports because of the "enormous social, psychological and
legal implications for families."

"People do get convicted on bad science and it's terrible," said
Kaplan. "If I give a diagnosis on a child, it's a medical
diagnosis, not a legal diagnosis."

Yet the medical diagnosis is a crucial linchpin in cases with no
witnesses and little, if any, corroborating evidence.

"I call it medically diagnosed murder," DePaul University law
professor Deborah Tuerkheimer said in a telephone interview.

Her research into three decades of shaken baby cases suggests
some of those convicted in the past might not be convicted today,
given the progression of research, scientific standards and legal
understanding. And, she thinks some people wrongfully convicted
could be actually innocent.

"To date our system has failed," Tuerkheimer wrote in a 2009
study for the Washington Law Review.

Some U.S. courts have conceded wrongful convictions in shaken
baby cases. Defendants have been acquitted.

Boylan said she acknowledges the changed understanding and will
continue to prosecute well-investigated cases like Wilkes'.

"I would have softened a sentencing recommendation if he had
admitted that he had actually did it so it could be used for
research," Boylan said.

She recommended the judge sentence Wilkes to life, with parole
eligibility after 30 years.

***

Not all of the jurors in Wilkes' trial were
easily convinced of his guilt.

"The holdouts were two men who just could not believe that
anyone who would ask for (custody of) their child would want to do
that to him," said juror Oines.

Wilkes' attorney, public defender Scott Spencer, emphasized his
client's consistent denials during the trial. But he offered little
challenge to the prosecution's medical testimony other than to say
that, by itself, it did not warrant a conviction. No medical
experts testified for the defense.

Spencer declined to discuss the case for this story, but the
Missoulian quoted his succinct summary of the defense's case during
the trial.

"Is it suspicious? Absolutely," Spencer told the jury. "Is it a
tragedy? Absolutely. But (Wilkes) didn't do it. There's not one
person who has walked into this courtroom and said, ‘I know what
happened.' Something happened. Somebody did something. But you have
to be convinced beyond a reasonable doubt."

The infant's injuries did not fit with Wilkes' description of
events, but the defendant presented no other possibilities, Boylan
said.

She asked the jurors to consider "Gabe" and weigh the evidence
presented by her 11 medical witnesses. Their testimony was crucial,
she said after the trial.

"I had all these incredible facts and a row of doctors," Boylan
said.

Wilkes cried at his sentencing hearing and told Judge Ed McLean
he misses his son.

McLean later said in his judgment that Wilkes is a threat to the
community and emphasized that the defendant is not taking
accountability for his crime.

"Although you may feel remorse for Gabriel's death, you do not
accept responsibility," McLean said.