Speaker 1: In the fall of two thousand and four, Terry Caesar
Speaker 1: and his son were living in Poor Huron, Michigan, occasionally
Speaker 1: staying with his girlfriend, Cheryl, her six year old daughter, Darien,
Speaker 1: and sixteen month old son Brendan. On the morning of
Speaker 1: October three, Cheryl and her daughter were out while Terry
Speaker 1: stayed home with the sleeping toddler. When they returned, Terry
Speaker 1: was panicked and Brenton was unconscious and struggling to breathe.
Speaker 1: They rushed him to the hospital, where he was given
Speaker 1: a cat scan and then transferred to Children's Hospital in Detroit.
Speaker 1: The child recovered after a few days, but by then
Speaker 1: a pediatric neurosurgeon had ruled that bleeding on the brain
Speaker 1: indicated that Brendan had been the victim of violence shaking,
Speaker 1: and Terry was immediately the number one suspect, Although he
Speaker 1: maintained that Brendan had fallen from the couch, Terry was
Speaker 1: arrested and charged with first degree child abuse. At trial,
Speaker 1: the doctor testified that the findings associated with shaking baby
Speaker 1: syndrome present and could not have been caused by the
Speaker 1: shortfall that Terry had described. It would seem highly unlikely
Speaker 1: that an experienced pediatric neurosurgeon could be mistaken, but this
Speaker 1: is wrongful conviction. Welcome back to wrongful conviction. I'm Jason
Speaker 1: Flahman today once again talking about a case that revolves
Speaker 1: around the hypothesis that has never been tested, but somehow,
Speaker 1: inexplicably became the accepted orthodoxy of fallback, whatever you want
Speaker 1: to call it, of the medical community. And thankfully it's
Speaker 1: long since been debunked. And of course I'm talking about
Speaker 1: shaken baby syndrome or SBS. Now Terry Caesar spent almost
Speaker 1: four years in prison because of this faulty diagnosis and
Speaker 1: more than a decade trying to clear his name. So Terry,
Speaker 1: I'm sorry for what you went through man, But welcome
Speaker 1: to wraful conviction. Thank you, well, You're welcome and joining
Speaker 1: us as the co founder and co director of the
Speaker 1: Michigan Innoscence Clinic and Michigan Law School. Dave Moran, Thanks Dave.
Speaker 1: I understand that you and the Michigan Innisce Clinic I
Speaker 1: have already exonerated six people and counting of this non
Speaker 1: existent crime. And we've talked about this so many times,
Speaker 1: most recently with Zavi on Johnson John Jones and Ohio
Speaker 1: Robert robertson who's on death row in Texas to this day.
Speaker 1: The list is long, and one case is more horrifying
Speaker 1: than the last one. We did a full breakdown of
Speaker 1: sbs SO Shaking Baby Centroume on wraeful Conviction junk Science
Speaker 1: with our host Josh Dubin and the executive director of
Speaker 1: the Center for Integrity and Forensic Sciences, Kate Judson, and
Speaker 1: Kate is going to join us a bit later. Now.
Speaker 1: Terry's case happened back in two thousand and four, when
Speaker 1: most of the medical establishments still seem to just reflexively
Speaker 1: jump to the conclusion and that if a kid was
Speaker 1: in some sort of terrible distress and the triad of
Speaker 1: findings were there brain bleed, brain swelling, and bleeding behind
Speaker 1: the eyes, that automatically well must be diagnostic of child abuse.
Speaker 2: But already by that point there were challenges to shaking
Speaker 2: baby syndrome, and of course Terry's case revolves around that,
Speaker 2: is that the challenge to shaking baby syndrome should have
Speaker 2: been presented.
Speaker 1: John Plunkett had already done his seminal project on the subject,
Speaker 1: and biomechanical research into car seat safety had already begun
Speaker 1: to shred the viability of what was thought to be
Speaker 1: established science. We now know it's junk science. But unfortunately
Speaker 1: Terry's attorney didn't realize the court was constitutionally bound to
Speaker 1: provide funding for an expert defense witness. And we're going
Speaker 1: to get into that a bit later on. But first, Terry,
Speaker 1: you grew up in Port Huron, Michigan, right all my
Speaker 1: life now, way before this happened. You had a son
Speaker 1: named Cody, and a little after he was born, you
Speaker 1: had a brush with an event in which there was
Speaker 1: a sick child that a young woman had claimed was
Speaker 1: your child. This was all the way back in nineteen
Speaker 1: ninety five.
Speaker 3: So it was a girl. She was already three or
Speaker 3: four months pregnant when we had slept together. One day
Speaker 3: in like June ninety five, this girl shows up at
Speaker 3: my house with this baby in the stroller, telling me
Speaker 3: it's my son, and something was wrong with the baby.
Speaker 3: The baby wasn't breathing right. Ambulance took the kid from
Speaker 3: my house. So they tried saying that I was the
Speaker 3: father of this child. So I went through everything proven
Speaker 3: that I wasn't the father. I took a DNA test.
Speaker 1: But unbeknownst to you, your name had been on this
Speaker 1: central registry in Michigan ever since nineteen ninety five, just
Speaker 1: for having been mentioned in the same breath of another
Speaker 1: child who had been brought into a hospital from your home. Right.
Speaker 3: So, this is the craziest thing is I found out
Speaker 3: about this in twenty twenty one. This was never brought
Speaker 3: up in my two thousand and four case. But they
Speaker 3: did use this against me in my two thousand and
Speaker 3: four case, and I have paperwork to prove it.
Speaker 1: Right, And as we so often see in rompic conviction cases,
Speaker 1: is that sometimes the police are motivated by someone's criminal record,
Speaker 1: and in this case, a perceived criminal record. Now, like
Speaker 1: you said, you didn't find out about this in twenty
Speaker 1: twenty one, and we're going to get back to that later.
Speaker 1: But Terry, let's go to your life at the time
Speaker 1: of this incident. In two thousand and four, you were
Speaker 1: thirty three years old, a single dad. Your son Cody
Speaker 1: was around thirteen, right, tell me about him and about
Speaker 1: your life together.
Speaker 3: He was an honorable student, all star athlete. He wrestled football, basketball, baseball,
Speaker 3: We played hockey. We would go camp and fishing. It
Speaker 3: was a great father son. But we were like best
Speaker 3: friends at the same.
Speaker 1: And at that time, you were also in a relationship
Speaker 1: with a woman named Cheryl Ganna, and she had a
Speaker 1: couple of kids too, Darien, her six year old daughter,
Speaker 1: and Brendan, who was about sixteen months old.
Speaker 3: The kids got along great. We had weekends where the
Speaker 3: kids would be with us, and then we had weekends
Speaker 3: where the kids would go with the other parents. So
Speaker 3: we had our time, we had family time. Everything was good,
Speaker 3: all right.
Speaker 1: Were you living together at the time.
Speaker 3: No, she had her own place. We would stay like
Speaker 3: back and forth between the two.
Speaker 1: So let's go now to October third, two thousand and four.
Speaker 1: You and Cheryl were together with her kids at your place,
Speaker 1: So tell me about that.
Speaker 3: Sunday morning, my son Cody spent the night at his
Speaker 3: friend Tyler Brown's house. Darien, Brendan, and Cheryl were with
Speaker 3: me at the house and while we were eating breakfast,
Speaker 3: Darien was talking about that she wanted to go swimming.
Speaker 3: Brendan's still sleeping at this time because he's been sick.
Speaker 3: He had fallen at daycare the Thursday before this weekend
Speaker 3: that he was with us, So she was going to
Speaker 3: have Brendan go to his grandma's house, and I told her,
Speaker 3: I says, if you guys are only going to be
Speaker 3: gone for like an hour hour and a half, just
Speaker 3: let him sleep a little over an hour after they left,
Speaker 3: Brendan woke up. I took him out of the bedroom,
Speaker 3: got him some stuff to eat. I finished up feeding them,
Speaker 3: went into the kitchen to put the spoon in the
Speaker 3: sink and throw the stuff away, and he was standing
Speaker 3: up on my couch with his back towards me, looking
Speaker 3: forward at the TV. So I got down on my
Speaker 3: hands and knees and came up around the couch and
Speaker 3: was playing Gotcha. This was something that we did all
Speaker 3: the time. He was going back and forth on the couch,
Speaker 3: you know, trying to get away from me, tickleing them.
Speaker 3: And while I was doing that, I had to use
Speaker 3: the bathroom. It was like right around the corner. I'm
Speaker 3: like five feet away, but I just can't see because
Speaker 3: there's a corner there. From while I'm going to the bathroom,
Speaker 3: I hear a thang thud, and then it's just complete
Speaker 3: silence besides the TV going, and you knew something was wrong.
Speaker 3: So I came out and I don't see Brendan. I
Speaker 3: take a couple more steps into the living room, and
Speaker 3: then I see Brendan in between my couch and my table.
Speaker 3: His legs are going up the couch, his butt is
Speaker 3: on the floor, and his left shoulder is like popped
Speaker 3: up against the leg of my table. But he's like
Speaker 3: he's like slouched back, and his head's back like limp noodled.
Speaker 1: And with this fall happening between the couch and the
Speaker 1: coffee table, potentially there was an impact on the table
Speaker 1: before the impact with the floor. So you ran over
Speaker 1: to him, like any loving parent would.
Speaker 3: I grab his head and support his head, and I
Speaker 3: picked Brendan up, and as soon as his head comes forward,
Speaker 3: some blood trickles of his mouth, so I look in
Speaker 3: his mouth, and he bit his tongue so I can
Speaker 3: start to see like a bruising on his forehead, and
Speaker 3: then it looked like a carpet mark, like little red
Speaker 3: dots on the spot in the back of his head.
Speaker 3: And you know, he's like barely breathing.
Speaker 1: And I understand that Cheryl and Darien got home right
Speaker 1: after this.
Speaker 3: Happened, and I told her Brendan fell and he's unresponsive.
Speaker 3: We go support your own hospital, and within a minute
Speaker 3: or two they have him alert, crying, you know, so
Speaker 3: I'm relieved.
Speaker 1: Right good, So it seems like this is where that
Speaker 1: story really should have ended.
Speaker 3: The hospital staff kept telling me like, don't worry, your
Speaker 3: son's going to be fine, and I'm like, I'm not
Speaker 3: the father, I'm her boyfriend, and everything from that point changed.
Speaker 1: Meanwhile, the emergency room position, doctor Hunt noticed that one
Speaker 1: of Brendan's pupils was dilated more than the other, so
Speaker 1: he ordered a cat scan and that scan showed a
Speaker 1: subdualhematoma or bleeding in the brain that was having a
Speaker 1: mass effect, meaning that it was pushing the brain to
Speaker 1: one side. So he ordered to transfer to Children's Hospital
Speaker 1: and did you right by ambulance to see a pediatric neurosurgeon.
Speaker 1: With the first of the findings showing up, it appears
Speaker 1: that suspicion was aroused that only continued to grow as
Speaker 1: they were hearing back from the specialist, doctor Gilmer Hill.
Speaker 2: In some of these hospitals, you have people who are
Speaker 2: really firmly committed to the shaken baby hypothesis. It's kind
Speaker 2: of like the hammer looking for the nail, and they're
Speaker 2: quick to diagnose it. Doctor gilmour Hill is the one
Speaker 2: who concludes this is child abases. She becomes the star
Speaker 2: witness against Terry at his trial.
Speaker 1: And then, of course they've called in CPS and detectives
Speaker 1: at this point, and unfortunately Cheryl made an unfortunate choice.
Speaker 3: Cheryl spoke with the detective and the CPS before I did,
Speaker 3: and said that they want to talk to me and
Speaker 3: that she told them that she was there and she
Speaker 3: picked up Brendan.
Speaker 1: That wasn't true. Of course, why do you think Cheryl
Speaker 1: said that so?
Speaker 2: I think she panicked. She was afraid that it would
Speaker 2: somehow look bad on her if she admitted that Brendan
Speaker 2: had been injured while he would in the care of
Speaker 2: a boyfriend.
Speaker 3: I have no idea what to say now, I'm already
Speaker 3: being looked at here and being detained, So like a dummy,
Speaker 3: I agreed and said that she was there and she
Speaker 3: picked them up. So Cheryl's brother was a deputy sheriff
Speaker 3: and his wife at the time. She took it amongst
Speaker 3: herself to call the Sheriff's department and talk to a
Speaker 3: detective and let them know that you might want to
Speaker 3: talk with Cheryl again because the story she gave you,
Speaker 3: wasn't the truth.
Speaker 1: This episode is underwritten by global law firm Greenberg Trauig.
Speaker 1: Through its pro bono program, Greenberg Trowig leverages it's more
Speaker 1: than twenty six hundred lawyers across forty four offices to
Speaker 1: serve the greater good of our communities and provide equal
Speaker 1: access to justice for all. In the field of criminal justice,
Speaker 1: Greenberg Trowrig attorneys have exonerated and freedomanded Philadelphia represent numerous
Speaker 1: individuals previous sentenced to life for crimes committed as juveniles
Speaker 1: and resentencing hearings, and received the American Bar Association's twenty
Speaker 1: twenty one Exceptional Service Award for Death Penalty Representation for
Speaker 1: their work on five death penalty cases. GT is reimagining
Speaker 1: what big law can be because of a more just world.
Speaker 1: Only happens by design. So even though Cheryl was trying
Speaker 1: to be helpful, she made things worse. But that wasn't
Speaker 1: the only thing. In flaming suspicions of the detectives and
Speaker 1: CPS agents, of course, I'm referring to what they were
Speaker 1: hearing from the pediatric neurosurgeon at Children's Hospital in Detroit
Speaker 1: who was now examining Brendon doctor Gilmer Hill.
Speaker 2: Who sees the swollen brain of the rtal hemorrhages and
Speaker 2: a subdural humanitoma, and she's been taught in medical school
Speaker 2: that you see those things. There's no other explanation for
Speaker 2: it other than some really far out there things like
Speaker 2: an unrestrained high speed crash or being dropped out of
Speaker 2: a third story window.
Speaker 1: Right, short falls not yet made it to the list
Speaker 1: of potential causes of the findings previously reflexively associated with
Speaker 1: the farce known as shaken baby syndrome. But since that time,
Speaker 1: we've learned that that triad of findings can be caused
Speaker 1: by a growing list of Currently, they might have had
Speaker 1: eighty one non traumatic medical conditions in addition to short falls,
Speaker 1: And unfortunately, in two thousand and four, these causes were
Speaker 1: just beginning to be discovered. And since it's become abundantly
Speaker 1: clear that in the absence of a spinal injury, shaking
Speaker 1: cannot provide sufficient force to cause this triad of findings.
Speaker 1: It just can't be done. That's how wrong the medical
Speaker 1: establishment had it. So with that, you might not be
Speaker 1: surprised to hear that doctor Gilmer Hill, in examining Brendan
Speaker 1: and his cat scan for head trauma, being the hammer
Speaker 1: looking for the nail, they completely missed the mark on
Speaker 1: his forehead. She reported no external bruising, scalp swelling, or
Speaker 1: other signs of trauma. That's in her report. Yet Cheryl
Speaker 1: her family all folks who had no reason to protect Terry.
Speaker 1: They're obviously going to be taking the side of the baby.
Speaker 1: But they all noticed the mark on Brendan's forehead that
Speaker 1: was about the size of a fifty cent piece that
Speaker 1: would corroborate his version of events.
Speaker 2: They saw it at Port Huron, and they saw it
Speaker 2: in Children's hospital, and there was a nurse in Port
Speaker 2: Heuron who had seen the mark on the forehead, but
Speaker 2: mysteriously doctor Gilmour Hill didn't. If there's an impact, you
Speaker 2: would expect there to be some kind of mark or
Speaker 2: some kind of bruise or an abrasion. If it's shaking
Speaker 2: and then slamming on a soft surface, you wouldn't necessarily
Speaker 2: expect to see any marks. And so at trial then
Speaker 2: the prosecutions argument is that you see there's no marks
Speaker 2: in this baby. This baby didn't fall, this baby was shaken.
Speaker 3: They contact me told me that I had a warrant
Speaker 3: for my arrest. I went, turned myself in, bonded myself out.
Speaker 3: You know. I was right back to Dad's at home,
Speaker 3: Dad's working, you know.
Speaker 1: And this arrest was inexplicably delayed until January two thousand
Speaker 1: and five. Brendan had made a full recovery by then.
Speaker 1: Now neither Cheryl nor her family were pressing charges, so
Speaker 1: perhaps they had to wait until Brenda's father would. Either way,
Speaker 1: the state seemed hell bent on taking this to trial.
Speaker 1: And I understand that your mother retains an attorney who
Speaker 1: she knew from her mail carrier, which was a guy
Speaker 1: named ken Lord.
Speaker 3: My mom retained him for me. He told me it
Speaker 3: was going to be ten to twenty thousand dollars for
Speaker 3: me to retain this doctor to come speak in my behalf.
Speaker 3: And like I said, I'm a single father with a
Speaker 3: thirteen year old kid at the time. I'm living check
Speaker 3: to check. I don't have a couple grand in my
Speaker 3: bank account. I'm not living like that.
Speaker 2: Yeah. So ken Lord's mistake here, which we eventually many
Speaker 2: years later confirmed with the Michigan Supreme Court, was believing
Speaker 2: that he couldn't ask for money to help hire an
Speaker 2: expert if his client was retained as opposed to being appointed,
Speaker 2: that's just constitutionally wrong. The US Supreme Court had established
Speaker 2: a decade and a half earlier that there is a
Speaker 2: constitutional right to have an expert if an expert is
Speaker 2: needed for the case, and ken Lord had already consulted
Speaker 2: with a renowned expert, doctor Ferris Bandak.
Speaker 1: Doctor Ferris Bandak, a renowned figure in the field of biomechanics,
Speaker 1: were tested for in the very high profile Michael Peterson case.
Speaker 2: Who was prepared to give very helpful testimony explaining the
Speaker 2: problems with the shaken baby syndrome hypothesis, explaining why this
Speaker 2: case wouldn't fit within it. And because Terry's mom had
Speaker 2: retained Ken Lord, she was tapped out. She didn't have
Speaker 2: the money to hire an expensive expert.
Speaker 1: So you went to trial in December of two thousand
Speaker 1: and five, and the trial was overseen by Judge of
Speaker 1: Dare And of course the state was leaning heavily on
Speaker 1: the testimony of doctor Gilmer Hill, the neurosurgeon who had
Speaker 1: seen Brendan had Children's Hospital in Detroit.
Speaker 4: I'm Kate Judson, the executive director of the Center for
Speaker 4: Integrity and Forensic Sciences, In the case of Terry Caesar,
Speaker 4: there were conflicting reports about whether sixteen month old Brendan
Speaker 4: had any external injuries. The external injuries that were reported
Speaker 4: could account for a potential impact site on his head
Speaker 4: with either the coffee table, the floor, or both. A
Speaker 4: CT scan showed subdural hematoma, and upon further investigation by
Speaker 4: the state's star witness pediatric neurosurgeon, doctor Gilmer Hill, she
Speaker 4: also noted brain swelling and right hemorrhage, the triad of
Speaker 4: findings often associated with the faulty hypothesis of SPS. She
Speaker 4: reported no external injuries and importantly the absence of any
Speaker 4: fractures or neck injury. She concluded that Brendan's injuries were
Speaker 4: the result of violent shaking and could only otherwise be
Speaker 4: caused by a fall from a second story window or
Speaker 4: a high velocity car crash, and not by the shortfall
Speaker 4: Terry had described. Now Terry's an attorney had consulted with
Speaker 4: an expert, doctor Bendeck, who put a background at engineering,
Speaker 4: he would have testified to our current understanding of injury
Speaker 4: kinematics that a short fall could cause injuries just like Brendan's.
Speaker 4: Terry's attorney also raised the work of doctor Gettis and
Speaker 4: doctor Plunkett, as well as doctor Gregory Riber, who had
Speaker 4: testified for the state against Zavion Johnson just three years prior.
Speaker 4: At Zavian's trial, he said that a short fall with
Speaker 4: an impact could not cause the triad, but now he
Speaker 4: had learned that the opposite was true. Had any of
Speaker 4: them taken the stand, they would have been able to
Speaker 4: impeach doctor Gilmour Hill.
Speaker 2: It's really hard to believe that you wouldn't have gotten
Speaker 2: an acquittal if the jury her from a very well credentialed,
Speaker 2: renowned expert who would study shaking baby syndrome like doctor
Speaker 2: Bandyck had.
Speaker 1: So as a result of not asking the court to
Speaker 1: obtain funds to help Terry Ken, Lord ended up cross
Speaker 1: examining doctor Gilmer Hill himself based on his notes from
Speaker 1: consulting with doctor Bandak. But I think we all know
Speaker 1: that cross examination of an expert witness doesn't pack the
Speaker 1: same punch with the jury as having your own.
Speaker 2: Expert, because who's the jury going to believe the doctor
Speaker 2: who insists that there's really no other explanation for these
Speaker 2: injuries or the lawyer who's not a scientist, not a
Speaker 2: doctor who tries to poke holes in that theory, and
Speaker 2: so unless the expert is exceptionally bad, cross examination will
Speaker 2: very rarely poke enough holes in an expert's certainty to
Speaker 2: cause the jury to have reasonable doubt.
Speaker 1: So the state had this in the bag, but presented
Speaker 1: the child's mother, Cheryl, as well, with the assumption that
Speaker 1: raising the specter of her lie in the emergency room
Speaker 1: would seal the deal.
Speaker 2: Cheryl did testify for the prosecution, but her testimony was
Speaker 2: actually very helpful Terry, explaining that she trusted Terry, she
Speaker 2: explained the way to lie about whether she was there
Speaker 2: or not, confirmed that it was her lie, not Terry's.
Speaker 1: And she also testified that Brendan had had a fall
Speaker 1: at daycare a few days before. As you told us earlier, Terry,
Speaker 1: we now know that a child could experience a lucid
Speaker 1: interval for a few days before coming to the results
Speaker 1: of an initial trauma. So for years medical expert was
Speaker 1: has testified that the most recent caregiver must be the culprit,
Speaker 1: when that was not true either. And Terry, I understand
Speaker 1: you took the stand as well.
Speaker 3: I told him, but I didn't hurt Brendan. You know,
Speaker 3: I've never even corrected him, and he wasn't a bad
Speaker 3: kid that needed corrections. Honestly, he was a good kid.
Speaker 1: And there were no character witnesses allowed to understand, which
Speaker 1: would have gone a long way towards backing you up
Speaker 1: on all of that.
Speaker 3: I had over half the courtroom full, my mother, father,
Speaker 3: aunt's uncles, my son, my son's mother, employers, friends of family.
Speaker 3: I had a ton of people there, and Judge Dare
Speaker 3: didn't allow anybody to speak on my behalf. So it's like,
Speaker 3: how can I even feel that I had a fair trial.
Speaker 2: This case, even without anybody for the defense, was an
Speaker 2: extremely difficult case for the jury to result. It took
Speaker 2: them days and they were deadlocked.
Speaker 1: Right and this, by the way, is right before Christmas,
Speaker 1: when these people could have really, probably very badly wanted
Speaker 1: to be spending their time with their families getting ready
Speaker 1: for the holidays. So who knows how that played into
Speaker 1: how they eventually came around to side with doctor Gilmer.
Speaker 3: Hill, and so they come up with their unanimous guilty.
Speaker 3: I'm devastated. So now I get to spend Christmas and
Speaker 3: New Year's with my family and my son, and then
Speaker 3: I know that after New year's I'm going to prison
Speaker 3: for a crime that never even happened. The hardest part
Speaker 3: was taking my son to school the day of sentencing,
Speaker 3: dropping him off and telling him, hopefully I'll be here,
Speaker 3: you know, after you get out of school. If not,
Speaker 3: then your mom will be here, And then go in
Speaker 3: there and finding out that my sentence is two to
Speaker 3: fifteen years. And then to have a son who's on
Speaker 3: the outside that you know, you can only get fifteen
Speaker 3: minute phone calls, you know, and to hear the problems
Speaker 3: that he's having, knowing that he wouldn't be having these
Speaker 3: problems if I was there where I should be, you know.
Speaker 3: But I was focused on getting me home and proving
Speaker 3: my innocence. I wanted to get back to my son.
Speaker 1: Tragically, you were stolen from him, let's call it what
Speaker 1: it is, during his prime formative years. Now. By two
Speaker 1: thousand and seven, you had been studying the law and
Speaker 1: working on your appeal process. You petitioned the Michigan Court
Speaker 1: of Appeals with an ineffective Assistance of Council claim based
Speaker 1: on ken Lord's misunderstanding that the court would not provide
Speaker 1: an expert because you had retained ken Lord, so almost
Speaker 1: like they thought if you had the money for that,
Speaker 1: you should have the money for this, and that eventually
Speaker 1: became the basis of the filings that they've prepared with
Speaker 1: the Michigan Innocence Clinic. But at that time it failed. Dave,
Speaker 1: do you have any theories as to why that petition
Speaker 1: didn't work out?
Speaker 2: So in order to prove ineffective assistance, you have to
Speaker 2: prove that had the lawyer not made the mistake, there's
Speaker 2: a reasonable probability there would have been a different outcome.
Speaker 2: And normally what you would do is you would attach
Speaker 2: affidavits from experts you would call at this hearing and
Speaker 2: say send it back and have this evidentiary hearing in
Speaker 2: the trial court and will show that had defensive lawyer
Speaker 2: asked for an expert, he could have got a good
Speaker 2: expert that would have changed his case, and a pel
Speaker 2: lawyer just didn't do that.
Speaker 1: So not only had your trial attorney failed you, but
Speaker 1: then appellet Council had as well. Terry, I understand at
Speaker 1: this point you took an even more active role in
Speaker 1: developing your own appeals.
Speaker 3: I was at the law library every day to learn
Speaker 3: how I could prove my innocence. A real good friend
Speaker 3: that I met while I was incarcerated. Demetrius Welsh showed
Speaker 3: me more stuff as far as the legal process and
Speaker 3: how to prepare legal briefs.
Speaker 1: Meanwhile, you were seeking parole as well, but the board
Speaker 1: wanted what you couldn't give them.
Speaker 3: They wanted admission of guilt, you know. And that's the
Speaker 3: thing is, I'm not given an admission of guilt for
Speaker 3: something that I didn't do. I told them that I've
Speaker 3: done everything that they wanted to do. I never caught
Speaker 3: a ticket while I was incarcerated.
Speaker 1: Nonetheless, you were denied your first time around.
Speaker 3: They gave me an eighteenth month continuance because I didn't
Speaker 3: take an AOP class, which is an assault of Offenders program.
Speaker 3: It was a stipulation for me to be parolled. So
Speaker 3: you have to pass this interview to even get into
Speaker 3: the program. You know, I'm telling them everything that happened,
Speaker 3: and I'm telling him the whole story, and it's like,
Speaker 3: you know, he's as well. It sounds to me like
Speaker 3: you're in denial and you don't want to admit. You know,
Speaker 3: how am I supposed to admit something that I didn't do?
Speaker 3: So I had to file at grievance in order for
Speaker 3: me to even get into this AOP class. I knew
Speaker 3: that if I didn't do this class, I'm not going home.
Speaker 3: They're just going to keep flopping me and flopping me
Speaker 3: and flop me till I do my fifteen years.
Speaker 1: So you did that program, but no matter what, the
Speaker 1: goal was obviously exoneration because you were innocent. In fact,
Speaker 1: you were innocent of a crime that never even happened.
Speaker 1: So you had filed the Federal habeas in two thousand
Speaker 1: and eight pro se while reaching out to innocence organizations
Speaker 1: all over the country. But at that time you weren't
Speaker 1: getting any help, as so many projects and clinics were
Speaker 1: really focused on wins that they could almost call predictable
Speaker 1: that could be earned with d NA cases, and Dave
Speaker 1: as an appellate public defender, you had seen the need
Speaker 1: for a different kind of innocence organization. So you connected
Speaker 1: with someone who had served as a public defender and
Speaker 1: eventually went on to be the Chief Justice of the
Speaker 1: Michigan Supreme Court. But at this point she was the
Speaker 1: dean for clinics at Michigan Law. And of course I'm
Speaker 1: talking about Bridget McCormick.
Speaker 2: And we decided with her public defender background as a
Speaker 2: trial lawyer and my public defender background as an appellate lawyer,
Speaker 2: we'd make a pretty good team. And so we co
Speaker 2: founded the Michigan Innocence Clinic as a non DNA innocence project,
Speaker 2: which officially opened into its doors in January two thousand
Speaker 2: and nine, just about the time Terry was finishing up
Speaker 2: his sentence. He was still incarcerated at that point, and
Speaker 2: so Terry was one of the first wave of people
Speaker 2: to write us, and his was one of the very
Speaker 2: first set of cases that we took.
Speaker 3: It was like, you know, here's your sign. This is
Speaker 3: what you've been waiting for, all this work and everything
Speaker 3: that you've done. I finally have somebody that I can
Speaker 3: give this to, that can you know, finish this relay
Speaker 3: for me because I can't run this race no more.
Speaker 3: There's no more that I can do.
Speaker 1: And by then you finally had a barol day coming
Speaker 1: up October sixth, two thousand and nine, so you were
Speaker 1: headed out the door. What was that day like for you? Terry?
Speaker 3: It went from how to trying to learn how to
Speaker 3: live again, to be able to go to the bathroom
Speaker 3: when I needed to go to the bathroom was a
Speaker 3: wonderful thing. This is the simple things. Two ply toilet paper.
Speaker 3: Some hies catch up everything that we take for granted
Speaker 3: every day. Was the stuff that I think that I
Speaker 3: missed the most, you know, a late gas bill, you
Speaker 3: know what I mean, the stuff that I sweated before.
Speaker 3: I'm like, I look at now and I'm like, you know,
Speaker 3: I mean this shit. Really this stressed me out before,
Speaker 3: and I like laugh at that.
Speaker 1: And to finally get to be with your son again
Speaker 1: after five long years.
Speaker 3: It was. It was awesome. In prison, you get like
Speaker 3: a hug when you see him, in a hug when
Speaker 3: they leave. So to be able to see him and
Speaker 3: honestly be able to talk to him without discomfort was awesome.
Speaker 1: But let's not forget you were still on parole, which,
Speaker 1: as we here described over and over again, even though
Speaker 1: you're technically free, it's almost like just being in a
Speaker 1: bigger prison.
Speaker 3: By parole, I legally couldn't see Cody because I was
Speaker 3: not allowed to have contact with anybody under the age
Speaker 3: of eighteen, So I had to get special permission from
Speaker 3: my parole agent for me to even be able to
Speaker 3: see my son. And then the worst part about it
Speaker 3: was is my first year of parole, my granddaughter was
Speaker 3: born and I could not be around her or see
Speaker 3: her for the first year of her life. I've had
Speaker 3: all these things taken away from me for nothing.
Speaker 1: And so clearing your name could not happen soon enough, Dave,
Speaker 1: As I understand it, you all went into court as
Speaker 1: his trial and appellate counsel should have done guns blazing
Speaker 1: with four expert witnesses, including doctor John Plunkett, the forensic
Speaker 1: pathologist who we mentioned earlier from his pioneering challenges to SBS.
Speaker 2: We knew that there was a big problem with these
Speaker 2: shaking baby cases. We read the transcript of doctor Gilmer
Speaker 2: Hill's testimony and it was way out there in our view.
Speaker 1: So these four experts said that doctor Gilmer Hill gave
Speaker 1: the jury incorrect information regarding the biomechanics of infant head injury,
Speaker 1: short distance falls, and also abusive shaking. Each of them
Speaker 1: noted that criticisms of shaking baby syndrome existed at the
Speaker 1: time of the trial or earlier, and that they would
Speaker 1: have offered these same opinions if they had been asked
Speaker 1: to testify back in two thousand and five. They also
Speaker 1: said that injury biomechanics confirmed that when a child is
Speaker 1: manual shaken, he or she will suffer a neck injury
Speaker 1: or gripping style chest injuries well before sustaining a subdural
Speaker 1: hematoma or retinal hemorrhage, which is the understanding that undermines
Speaker 1: nearly just about every single SBS prosecution, maybe all of them.
Speaker 1: They concluded that Brendan's injuries were consistent with a short
Speaker 1: fall from the couch onto the coffee table or the floor,
Speaker 1: and totally inconsistent with abuse of shaking. But proving innocence
Speaker 1: is not enough, So the ineffective assistant claims were your
Speaker 1: main arguments. But Terry had already raised the claims against
Speaker 1: his trial attorney.
Speaker 2: There was obvious error here, both by the trial lawyer
Speaker 2: and the appellate lawyer. So we filed a post conviction
Speaker 2: motion in Michigan for appellate lawyer's failure to properly litigate
Speaker 2: the trial lawyers in effectiveness. And so it goes back
Speaker 2: to the same judge in front of whom Terry had
Speaker 2: been convicted.
Speaker 1: That would be Judge A Dare again.
Speaker 2: And that judge just does not get it at all.
Speaker 2: That judge says, you can't raise this because this is
Speaker 2: the same issue that Terry raised on appeal, ineffective assistance
Speaker 2: of council, and we said no, Terry raised ineffective assistance
Speaker 2: a trial council on appeal. We're now raising ineffective assistance
Speaker 2: of appellate lawyer for failing to file the motion to
Speaker 2: have an evidentiary hearing.
Speaker 1: Right in which the appellate attorney could have presented experts
Speaker 1: to support the challenges to SBS and Judge of Dare's
Speaker 1: confusion over the fact that both trial and appellate council
Speaker 1: had failed you, but only the claim against trial council
Speaker 1: had been raised that kept justice from being done here
Speaker 1: for over a decade. And so you appealed Dare's decision,
Speaker 1: which involved a number of procedural hurdles that took the
Speaker 1: better part of the next six years through both the
Speaker 1: state and federal systems until you finally reached the Sixth Circuit.
Speaker 2: And we go to the Sixth Circuit and we had
Speaker 2: a terrific student attorney, one of the law students working
Speaker 2: on the case, and she wiped the floor with the
Speaker 2: Assistant Attorney General who was arguing against the petition.
Speaker 1: And that terrific student attorney, by the way, was named
Speaker 1: Meredith Collier.
Speaker 2: It was a legal mismatch. It likes he seldom a see.
Speaker 2: And so the end result of that, all of that
Speaker 2: was we finally emerge in twenty seventeen with a ruling
Speaker 2: from the federal court that Terry received ineffective assistance of
Speaker 2: a Pellet council.
Speaker 1: So you get to file a new appeal, basically starting
Speaker 1: back in the trial court, so Judge of Dari's court,
Speaker 1: but he had retired at this point, and you got
Speaker 1: to present Terry's original ineffective assistance claim about ken Lord
Speaker 1: not asking the court to provide funds to the defense
Speaker 1: for an expert witness.
Speaker 2: And we end up in front of a successor judge
Speaker 2: in Saint Clair County port Hereon, who now says, well,
Speaker 2: you know, I'm just not so sure that Terry was
Speaker 2: really poor, and so we ended up having to hold
Speaker 2: a whole evidentiary hearing to establish that Terry was too
Speaker 2: poor to afford an expert. And what the judge ends
Speaker 2: up finding is, all right, well, Terry is poor, but
Speaker 2: we lose because the judge says it was a reasonable
Speaker 2: decision for Ken lord not to ask for money because
Speaker 2: Judge A Dare might have denied it. Wait what yeah,
Speaker 2: the successor judges. But it was that when I was
Speaker 2: a lawyer, if I'd asked for that, Judge A Dare
Speaker 2: probably would have laughed me out of court. But that
Speaker 2: ruling would be wrong.
Speaker 1: Adair's alleged tendency to rule against providing the funds for
Speaker 1: an expert would have been unconstitutional anyway. I mean, this
Speaker 1: is obstinence that defies all reason. And we've covered Saint
Speaker 1: Clair County only one time before running into this same
Speaker 1: kind of maddening logic defying issues. And of course I'm
Speaker 1: talking about temwijen Kenzu and we're going to have that
Speaker 1: incredible episode linked in the bio. So in order to
Speaker 1: receive justice, you had to get out of Saint Clair County.
Speaker 2: I argue the case in the Michigan Streme Court, and finally,
Speaker 2: in March of twenty twenty one, the Michigan Supreme Court
Speaker 2: issues a short order concluding that Terry gets a new trial.
Speaker 2: And there was this case is so clear that it's
Speaker 2: not even worth writing an opinion, and so the Michigan
Speaker 2: Streme Court rules in our favor Terry's conviction is vacated,
Speaker 2: and then the prosecution in Saint Clair County then sat
Speaker 2: around for months and months after March twenty twenty one,
Speaker 2: and finally dismiss the charges in September twenty twenty one.
Speaker 2: So that's the point where Terry officially becomes exonerated.
Speaker 3: I'm just I felt that I was blessed to discover
Speaker 3: the University of Michigan Law School and this is clinic.
Speaker 3: Without them, I don't know where I would be right now.
Speaker 1: So, after all you'd been through Terry, you'd think exoneration
Speaker 1: would be the end of the road. Your life is
Speaker 1: seemingly back to normal, But as we've learned, there's almost
Speaker 1: always a chance for another shoe to drop.
Speaker 3: I have no felony on my record. I can have
Speaker 3: a passport, I can go anywhere I want, I can
Speaker 3: have firearms. But here in Michigan, there's a thing called
Speaker 3: the Michigan Central Registry, and it doesn't matter if there
Speaker 3: was a crime or not. If somebody feels that you
Speaker 3: did something, then they'll put you on this registry.
Speaker 1: That's the registry maintained by Children's Protective Services. Are people
Speaker 1: who have either been convicted suspected or whose names were
Speaker 1: even breathed in the general direction of child abuse, neglect,
Speaker 1: sexual exploitation go on. And so when the folks at
Speaker 1: Michigan Law tried to get your name removed rightfully, so
Speaker 1: there was some unexpected confusion.
Speaker 3: So when they contact the Central Registry, they say, well,
Speaker 3: which one are you trying to get removed, because there's
Speaker 3: more than one. So Um reaches out to me and
Speaker 3: they're like, you know, do you have any idea of
Speaker 3: something happening back in ninety five? And I'm like no,
Speaker 3: They're saying something about your child, and I goes, I
Speaker 3: don't have a child. That says my only child is Cody.
Speaker 3: That's the only child I've ever had, and I had
Speaker 3: custody of my child. So I'm kind of confused here.
Speaker 1: And this is the situation that we briefly discussed earlier
Speaker 1: with the woman back in nineteen ninety five who claimed
Speaker 1: you were the father when her child was rushed to
Speaker 1: the hospital. So even with your exoneration, you of m
Speaker 1: was still having difficulty removing you from this list and
Speaker 1: undoing the damage.
Speaker 3: I'm still battling this. They told my son he can't
Speaker 3: leave my twelve year old grandson with me unless there's
Speaker 3: another adult here or he can get in trouble for that.
Speaker 3: I just want my life back, you know. I just
Speaker 3: want to enjoy my time with my grandkids, right.
Speaker 1: And that's the real crime here that a guy who
Speaker 1: literally did nothing wrong was a loving dad still after
Speaker 1: all these years, is not allowed to babysit his own grandchildren.
Speaker 1: But I know there are great people at U of
Speaker 1: M who are working on getting you off that list,
Speaker 1: and in fact, we're going to have a link in
Speaker 1: the bio for anyone who wants to support their incredibly
Speaker 1: important work. So now it's time for closing arguments, where
Speaker 1: I thank you both for sharing this story, and now
Speaker 1: I'm just going to turn my microphone off, kick back
Speaker 1: in my chair and listen to whatever else you two
Speaker 1: amazing humans want to say. So, Dave, why don't you
Speaker 1: kick it off and then hand it over to Terry.
Speaker 2: I'm really glad we achieved justice for Terry. I'm really
Speaker 2: sorry how long it took that he had to be
Speaker 2: patient for more than twelve years of us fighting this
Speaker 2: thing up and down the courts. It's a great example
Speaker 2: of how resistant the courts are to doing justice these
Speaker 2: cases I people are still in prison based on bogus
Speaker 2: shaking baby syndrome testimony, and it's our goal to find
Speaker 2: as many of them as we can and win them, because,
Speaker 2: as Terry's case shows, these diagnoses that are made without
Speaker 2: sound science and made with far, far too much certainty
Speaker 2: wreck people's lives. Terry, you know, Terry's experience was awful,
Speaker 2: but there are people who are serving life sentences because
Speaker 2: the baby died, and we need to root out as
Speaker 2: many of these cases as we can. We need to
Speaker 2: really stop this kind of testimony from being given in
Speaker 2: the first place.
Speaker 3: My closing ar events would be love your family, Love
Speaker 3: your loved ones. If there's people that you are not
Speaker 3: talking to because of different circumstances, I think you need
Speaker 3: to try to right those wrongs. And I think it's
Speaker 3: time for people to start mending bridges. It feels like
Speaker 3: this whole COVID thing is, you know, it's been like
Speaker 3: a bomb that blew us all apart and at least
Speaker 3: are just floating all around and everybody's everybody's all about
Speaker 3: themselves anymore. I remember when I was a kid growing up,
Speaker 3: when there was times like this. This is when families
Speaker 3: pulled together you know, when they were there for one another.
Speaker 3: I think that we just need to love our kids
Speaker 3: and teach our kids, you know, so they don't do
Speaker 3: our wrongs and make mistakes that you know that we've
Speaker 3: occurred in our life.
Speaker 1: Thank you for listening to Wrongful Conviction. I want to
Speaker 1: thank our production team Connor hall Any, Chelsea Lea Robinson,
Speaker 1: Jeff Clyburn and Kevin Warns. The music in this production
Speaker 1: was supplied by three time OSCAR nominated composer Jay Ralph.
Speaker 1: Be sure to follow us on Instagram at Wrongful Conviction,
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Speaker 1: wrong Conviction, as well as at Lava for Good. On
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Speaker 1: TikTok and Instagram at it's Jason Ravel. Conviction is a
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Speaker 1: Company Number one