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Cost of Wrongful Incarceration

$302,202 (in 2015 dollars)

Contributing Factors

Dave Wilkes holding his son, Gabriel, at his baptism (Photo courtesy of Dave Wilkes)

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

Dave’s infant son Gabriel became sick at daycare on October 4, 2008. Later that night, Gabriel stopped breathing. Dave took Gabriel 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,” Dave 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.” – Dave Wilkes on his son’s death

Despite Gabriel having no outward signs of injury, Dave was instantly under suspicion for abuse.

“When Detective Chrestenson came to me and said I was a suspect, I was both hurt and pissed off because I feel that they 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 Dave was charged with Deliberate Homicide. The prosecution’s theory of the case relied on Shaken Baby Syndrome.

SBS/AHT is a medico-legal diagnosis in babies and toddlers defined by a triad of symptoms: brain swelling, subdural hemorrhages, and retinal hemorrhages. These symptoms were once thought to be caused by parents violently shaking their babies, but research shows this was and still is an unproven hypothesis.


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SBS/AHT was not reviewed by an independent scientific agency until 2016. The review found evidence for SBS/AHT to be “insufficient.” The report states that it would be “incompatible with both doctors’ professional duties and the regulations concerning legal certification” to definitively conclude that a child was shaken when the triad of symptoms is present. Dave appeared in the documentary “The Syndrome,” which features scientists and legal professionals arguing against the existence of SBS/AHT.

MTIP Legal Director, Caiti Carpenter, discusses controversial medico-legal diagnosis Shaken Baby Syndrome/Abusive Head Trauma:

Dave 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,” Dave said. “Their body language spoke volumes.”

Dave Wilkes and son Gabriel (Photo courtesy of Dave Wilkes)

Dave’s court-appointed defense attorney did not call any witnesses to testify on his behalf and did not challenge the prosecution’s medical evidence. The jury found Dave 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,'” Dave said. “I was physically and mentally numb.”

MTIP takes the case 

In 2012, the Montana Innocence Project began its investigation into the case and 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) Dave’s 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,” Dave 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.” -Dave Wilkes

A new trial is granted

MTIP filed a Petition for Post-Conviction Relief 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 Dave’s case following the remand.

“When I finally got an evidentiary hearing in January of 2018, I was very excited,” Dave 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.”

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 Dave was ineffective for failing to consult with and call expert witnesses who could have challenged the controversial SBS/AHT diagnosis. On June 29, 2018, Judge Haynes overturned Dave’s conviction and ordered a new trial.

Dave is freed

Dave 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.

Dave Wilkes and son Gabriel (Photo courtesy of Dave Wilkes)

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

“I pleaded to save my family any more hardships or financial burden and to ease their suffering and also the wondering of what else would happen,” Dave said.

Dave 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,” Dave 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 26 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 Dave, 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,” Dave 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.”

Dave Wilkes on loss and moving forward:

Despite facing difficulties as he adjusts to his life outside of prison, Dave 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.”

Dave is currently an advocate for innocence issues including SBS/AHT and barriers facing returning citizens.