Robert “Dave” Wilkes

Age at the date of crime: 37

County of Conviction: Missoula County

Convicted of: Deliberate Homicide

Sentence: 40 years 

Years Served: 9 years 

Cost of Wrongful Incarceration: $297,000 and counting (in 2015 dollars)

In 2008, Robert “Dave” Wilkes was a brand new, first-time father of his son Gabriel. On October 4, Gabriel vomited at his daycare, and that night stopped breathing. He was taken to Missoula’s Community Hospital, and CT scans revealed bleeding and swelling in the brain, and bleeding behind the eyes. Although Gabriel had no bruising, broken bones, or any other outward signs of trauma, authorities immediately suspected abuse. He was life-flighted to Spokane’s Sacred Heart Hospital and placed on life support. Gabriel never regained consciousness, and was removed from life support on October 26, 2008. Five months later Dave was charged with homicide under the so-called “Shaken Baby Syndrome” theory. At his trial in December 2009, Dave’s court-appointed attorney did not call any witnesses to testify on Dave’s behalf, and did not challenge the State’s medical evidence. He was sentenced to 40 years in the Montana State Prison. In 2012, the Montana Innocence Project began an investigation into the case. After the Petition for Post-Conviction Relief was denied in 2014, MTIP appealed to the Montana Supreme Court. A companion case involving MTIP client Cody Marble, was taken to the Supreme Court at the same time.

Mr. Marble’s case was the first of two MTIP cases that significantly rewrote the rules for how Montana courts are to handle post-conviction exoneration and new trial petitions. Four days later the Wilkes’ decision reaffirmed what had been said in Marble. The two cases made clear that post-conviction relief in Montana is governed by provisions of Montana’s post-conviction relief statute, not by previously approved Montana case law or by case law applicable to post-conviction relief petitions filed in federal courts.

Marble’s case was undertaken based on evidence that the alleged victim of the crime charged to Marble had recanted his trial testimony that led to Marble’s conviction. Wilkes’ case was undertaken for three reasons: the prosecution’s medical science evidence offered to prove that Wilkes’ young son died of abusive head trauma was long outdated and discredited; compelling new medical science evidence demonstrated that the child ‘s death was not caused by head trauma but by a pre-existing medical condition; and Wilkes’ lawyer failed his duty to Wilkes by not producing readily available medical science evidence to support his client’s innocence and rebut the prosecution’s discredited medical science evidence.

In 2015, each case resulted in reversal of an adverse district court decision and a remand with instruction that the case be reconsidered in light of the new decisions.

Upon remand from the Supreme Court, Judge James Haynes assumed jurisdiction of the Wilkes case. After briefing and a series of hearings, Haynes ruled that while the new evidence of innocence did not merit a new trial (he reasoned that the medical evidence was not “new” since it technically was available at time of trial). However, Haynes found trial defense counsel to be ineffective for failing to consult with and call expert witnesses who could have challenged the controversial “Shaking Baby Syndrome” diagnosis, and who could have provided alternate, natural causes for the symptoms that the child displayed, (chief among them is chronic venous thrombosis, or blood clots in the brain), and which eventually led to his death. On June 29, 2018, Judge Haynes overturned Wilkes’ conviction and ordered a new trial.

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