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Cost of Wrongful Incarceration

$302,202 (in 2015 dollars)

Contributing Factors

Robert “Dave” Wilkes has endured two of the worst hardships a person should have to face: the loss of a child and a wrongful conviction. What’s worse is that he had to experience both tragedies at the same time.

Suspected of Shaken Baby Syndrome

Wilkes’ infant son Gabriel became sick at daycare on October 4, 2008. Later that night, Gabriel stopped breathing. Gabriel was taken to Missoula’s Community Hospital where it was revealed that his brain was bleeding and swollen.

“The night of October 4th is when Gabriel basically crashed…,” Wilkes said. “For the next three weeks, his mother and I were at his bedside continuously waiting, and hoping, and praying that he would improve. I begged God to take me, but he didn’t.”

“I begged God to take me, but he didn’t,”

Despite Gabriel having no outward signs of injury, Wilkes was instantly under suspicion for abusing his baby. 

“When Detective Chrestenson came to me and said I was a suspect, I was both hurt and pissed off because I feel that the Missoula Police Department, the Missoula County District Attorney’s Office, and the Missoula Department of Social and Health Services (CPS) were just judging me off of my looks and my persona: tattooed, gruff voice, and the way I carry myself as a person that doesn’t take any shit not only played right into their hands as me being a suspect … but also played right into what elements they think are criminal.”

The Trial 

Gabriel died a few weeks later, and Wilkes was charged with deliberate homicide. The prosecution’s theory of the case relied on Shaken Baby Syndrome. Wilkes described the trial as a bad dream he wasn’t able to wake up from.

“I remember the feeling of utter hatred coming off of the jury, and when I would look in their eyes for some kind of mercy, there was none,” Wilkes said. “Their body language spoke volumes.”

Wilkes’ court-appointed defense attorney did not call any witnesses to testify on Dave’s behalf and did not challenge the prosecution’s medical evidence. The jury found Wilkes guilty, and the judge sentenced him to 40 years. 

“Over those years I was inside, I often thought of my son, Gabriel, and kept playing everything over and over in my head, trying to come up with answers to questions that had been asked by so many: doctors, detectives, lawyers, people in general, and all I could say was, ‘I don’t know,'” Wilkes said. “I was physically and mentally numb.”

MTIP Takes the Case 

In 2012, the Montana Innocence Project began its investigation into the case. They found three compelling reasons to support his innocence: (1) The prosecution’s medical evidence was long outdated and discredited; (2) compelling new medical evidence demonstrated that Gabriel’s death was not caused by head trauma but by a pre-existing medical condition; and (3)  Wilkes’ lawyer in the original trial failed to produce readily available medical scientific evidence to support his client’s innocence and rebut the prosecution’s medical evidence. 

“When I contacted the project in 2011, I saw a small glimmer of hope,” Wilkes said. “In 2012, when I signed my retainer agreements with Larry Mansch and Brendan McQuillan, I again had more than a glimmer of hope. Now I had someone believing, finally, in what I had been saying to everyone since 2008.”

“When I contacted the project in 2011, I saw a small glimmer of hope.”

A New Trial is Granted 

MTIP filed a Petition for Post-Conviction Relief on these grounds in 2014. It was denied, but MTIP appealed the decision to the Montana Supreme Court who reversed the decision and sent it back to the lower court to reconsider. Judge James Haynes was assigned to take over Wilkes’ case following the remand.

“When I finally got an evidentiary hearing in January of 2018, I was very excited,” Wilkes said. “I had been inside for almost eight years by this point and was finally going to be able to show the evidence that MTIP found and the State continuously tried to suppress just to save the conviction and face,” Wilkes said.

Judge Haynes found that the medical evidence was not new since it was available at the time of the original trial but that the defense attorney who represented Wilkes was ineffective for failing to consult with and call expert witnesses who could have challenged the controversial Shaken Baby Syndrome diagnosis. On June 29, 2018, Judge Haynes overturned Wilkes’ conviction and ordered a new trial.

Wilkes is Freed 

Wilkes was transported to Missoula for an initial appearance, now in front of Judge Leslie Halligan. He was released on his own recognizance and trial was set for January 2020.

“I was quite stunned when a Unit Manager at Deerlodge asked me if I wanted to speak with my attorneys one day via a phone call in his office because I wasn’t expecting the news they were about to give me,” Wilkes said. “Toby Cook and Lisa Mecklenburg Jackson were the ones who told me that Judge Haynes had indeed overturned my case due to Ineffective Assistance of Counsel, and I was due to be released soon.”

Before trial, Wilkes pleaded no contest to criminal endangerment, and on January 29, 2020, Halligan approved the state’s recommendation that Wilkes remain free.

“I pled to save my family anymore hardships or financial burden and to ease their suffering and also the wondering of what else would happen,” Wilkes said.

Wilkes said he is still adjusting to his freedom but doubts he will ever be the same person he was before he was wrongfully convicted.

“This whole deal, even though I am incredibly blessed, has done more than scarred me,” Wilkes said. “This is a wound that may never heal. They say time heals all wounds, but this one is still as fresh as when my son died on October 26th of 2008. Also, when the State of Montana took my freedom unjustly, to give it back to me under the guise of a plea deal just leaves a bad taste in my mouth.”

For Wilkes, the worst part of his wrongful incarceration was missing out on important moments in his family’s life.

“I was never properly given the right or time to grieve my son’s death,” Wilkes said. “I lost loved ones while I was down and wasn’t able to say goodbye to them or go to their funerals. I was treated like any other common criminal while having the truth the whole time.”

Despite facing difficulties as he adjusts to his life outside of prison, Wilkes is filled with gratitude.

“My thanks to all of those who were involved in not only getting my son, Gabriel, a little justice, but also all of those who were involved in trying to right this wrong and help me win back my freedom,” Wilkes said. “(To) the people who took time out of their lives to show that my son Gabriel’s life meant something as well as mine, my family and I thank you all from the bottom of our hearts.”