Speaker 1: Michigan Child Protective Services maintains a central registry of anyone
Speaker 1: who has ever been connected to an incident involving child endangerment.
Speaker 1: When we initially released our coverage of Terry Caesar's case,
Speaker 1: his name was fully cleared in court, yet still remained
Speaker 1: on that list, leaving one final battle for Terry to fight.
Speaker 1: Since then, I'm happy to report that Terry and his
Speaker 1: team at Michigan Law were again successful in achieving justice,
Speaker 1: clearing his name once and for all. Congratulations Terry, and
Speaker 1: now our coverage as it originally aired. In the fall
Speaker 1: of two thousand and four, Terry Caesar and his son
Speaker 1: were living in Poor Huron, Michigan, occasionally staying with his girlfriend, Cheryl,
Speaker 1: her six year old daughter, Darien, and sixteen month old
Speaker 1: son Brendan. On the morning of October three, Cheryl and
Speaker 1: her daughter were out while Terry stayed home with the
Speaker 1: sleeping toddler. When they returned, Terry was panicked and Brenton
Speaker 1: was unconscious and struggling to breathe. They rushed him to
Speaker 1: the hospital. He was given a cat skin and then
Speaker 1: transferred to Children's Hospital in Detroit. The child recovered after
Speaker 1: a few days, but by then, a pediatric neurosurgeon had
Speaker 1: ruled that bleeding on the brain indicated that Brendan had
Speaker 1: been the victim of violence shaking, and Terry was immediately
Speaker 1: the number one suspect, although he maintained that Brendan had
Speaker 1: fallen from the couch. Terry was arrested in charged with
Speaker 1: first degree child abuse. At trial, the doctor testified that
Speaker 1: the findings associated with shaken baby syndrome were present and
Speaker 1: could not have been caused by the shortfall that Terry
Speaker 1: had described. It would seem highly unlikely that an experienced
Speaker 1: pediatric neurosurgeon could be mistaken.
Speaker 2: But this is wrongful conviction.
Speaker 1: Welcome back to RO I'm Jason Flahman today once again
Speaker 1: talking about a case that revolves around the hypothesis that
Speaker 1: has never been tested, but somehow, inexplicably became the accepted orthodoxy, fallback,
Speaker 1: whatever you want to call it, of the medical community,
Speaker 1: and thankfully it's long since been debunked. And of course
Speaker 1: I'm talking about shaken baby syndrome or SBS. Now Terry
Speaker 1: Caesar spent almost four years in prison because of this
Speaker 1: faulty diagnosis, and more than a decade trying to clear
Speaker 1: his name, so Terry, I'm sorry for what you went through, man,
Speaker 1: but welcome.
Speaker 2: To Rafel Conviction.
Speaker 1: Thank you well, you're welcome and joining us as the
Speaker 1: co founder and co director of the Michigan Innocence Clinic
Speaker 1: at Michigan Law School, Dave Moran.
Speaker 2: Thanks Dave.
Speaker 1: I understand that you and the Michigan Innisce Clinic have
Speaker 1: already exonerated six people and counting of this non existent crime.
Speaker 1: And we've talked about this so many times, most recently
Speaker 1: with Zavi on Johnson, John jo Owns in Ohio, Robert Robertson,
Speaker 1: who's on death row in Texas. To this day, the
Speaker 1: list is long, and one case is more horrifying than
Speaker 1: the last one. We did a full breakdown of sbs
Speaker 1: SO Shaking Baby Syndrome on Wrongful Conviction Junk Science with
Speaker 1: our host Josh Dubin and the executive director of the
Speaker 1: Center for Integrity and Forensic Sciences, Kate Judson, and Kate
Speaker 1: is going to join us a bit later. Now. Terry's
Speaker 1: case happened back in two thousand and four, when most
Speaker 1: of the medical establishments still seemed to just reflexively jump
Speaker 1: to the conclusion that if a kid was in some
Speaker 1: sort of terrible distress, and the triad of findings were
Speaker 1: there brain bleed, brain swelling, and bleeding behind the eyes
Speaker 1: that automatically well must be diagnostic of child abuse.
Speaker 3: But already, by that point there were challenges to shaking
Speaker 3: baby syndrome, and of course Terry's case revolves around that,
Speaker 3: is that the challenge to shaking baby syndrome should have
Speaker 3: been presented.
Speaker 1: John Plunkett had already done his seminal project on the subject,
Speaker 1: and biomechanical research into our 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 was junk science. But
Speaker 1: unfortunately Terry's attorney didn't realize the court was constitutionally bound
Speaker 1: to provide funding for an expert defense witness. And we're
Speaker 1: going 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 4: So it was a girl. She was already three or
Speaker 4: four months pregnant when we had slept together. One day
Speaker 4: in like Juna ninety five, this girl shows up at
Speaker 4: my house with this baby in the stroller, telling me
Speaker 4: it's my son, and something was wrong with the baby.
Speaker 4: The baby wasn't breathing right. Ambulance took the kid from
Speaker 4: my house. So they tried saying that I was the
Speaker 4: father of this child. So I went through everything proven
Speaker 4: 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.
Speaker 2: Right.
Speaker 4: So this is the craziest thing is I found out
Speaker 4: about this in twenty twenty one. This was never brought
Speaker 4: up in my two thousand and four case. But they
Speaker 4: did use this against me in my two thousand and
Speaker 4: four case, and I have paperwork to prove it.
Speaker 1: Right. And as we so often see in ropic 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 4: He was an honorable student, all star athlete. He wrestled football, basketball, baseball,
Speaker 4: We played hockey. We would go camp and fish and
Speaker 4: it was a great father son but we were like
Speaker 4: best 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 4: The kids got along great. We had weekends where the
Speaker 4: kids would be with us, and then we had weekends
Speaker 4: where the kids would go with the other parents. So
Speaker 4: we had our time, we had family time. Everything was good.
Speaker 1: Were you living together at the time.
Speaker 4: No, she had her own place. We would stay like
Speaker 4: 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: Tell me about that.
Speaker 4: Sunday morning, my son Cody spent the night at his
Speaker 4: friend Tyler Brown's house. Darien, Brendan, and Cheryl were with
Speaker 4: me at the house, and while we were eating breakfast,
Speaker 4: Darien was talking about that she wanted to go swimming.
Speaker 4: Brendan's still sleeping at this time because he's been sick.
Speaker 4: He had fallen at daycare the Thursday before this weekend
Speaker 4: that he was with us. So she was gonna have
Speaker 4: Brendan go to his grandma's house, and I told her,
Speaker 4: I says, if you guys are only gonna be gone
Speaker 4: for like an hour hour and a half, just let
Speaker 4: him sleep a little over an hour after they left,
Speaker 4: Brendan woke up. I took him out of the bedroom,
Speaker 4: got him some stuff to eat. I finished up feeding them,
Speaker 4: went into the kitchen to put the spoon in the
Speaker 4: sink and throw the stuff away, and he was standing
Speaker 4: up on my couch with his back towards me, looking
Speaker 4: forward at the TV. So I got down on my
Speaker 4: hands and knees and came up around the couch and
Speaker 4: was playing Gotcha. This was something that we did all
Speaker 4: the time he was going back and forth on the couch,
Speaker 4: you know, trying to get away from me tick on him.
Speaker 4: And while I was doing that, I had to use
Speaker 4: the bathroom. It was like right around the corner. I'm
Speaker 4: like five feet away, but I just can't see because
Speaker 4: there's a corner there. From while I'm going to the bathroom,
Speaker 4: I hear a thang thud, and then it's just complete
Speaker 4: silence besides the TV going, and you knew something was wrong.
Speaker 4: So I came out and I don't see Brendan. I
Speaker 4: take a couple more steps into the living room, and
Speaker 4: then I see Brendan in between my couch and my table.
Speaker 4: His legs are going up the couch, his butt is
Speaker 4: on the floor and his left shoulders like propped up
Speaker 4: against the leg of my table. But he's like he's
Speaker 4: like slouched back in 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 4: I grab his head and support his head, and I
Speaker 4: picked Brendan up, and as soon as his head comes forward,
Speaker 4: some blood trickles out of his mouth, so I look
Speaker 4: in his mouth, and he bit his tongue, so I
Speaker 4: can start to see like a bruising on his forehead,
Speaker 4: and then it looked like a carpet mark, like little
Speaker 4: like little red dots on the spot in the back
Speaker 4: of his head. 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 4: Happened, and I told her Brendan fell and he's unresponsive.
Speaker 4: We go support, you're in hospital, and within a minute
Speaker 4: or two they have him alert, crying, you know, so
Speaker 4: I'm relieved.
Speaker 1: Right good. So it seems like this is where that
Speaker 1: story really should have ended.
Speaker 4: The hospital staff kept telling me like, don't worry, your
Speaker 4: son's gonna be fine, and I'm like, I'm not the father,
Speaker 4: 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: in Detroit by ambulance to see a pediatric neurosurgeon. With
Speaker 1: the first of the findings showing up, it appears that
Speaker 1: suspicion was aroused that only continued to grow as they
Speaker 1: were hearing back from the specialist, doctor Gilmer Hill.
Speaker 3: In some of these hospitals, you have people who are
Speaker 3: really firmly committed to the shaking baby hypothesis. It's kind
Speaker 3: of like the hammer looking for the nail, and they're
Speaker 3: quick to diagnose it. Doctor Gilmer Hill is the one
Speaker 3: who concludes this is child. Abases comes the star witness
Speaker 3: 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 4: Cheryl spoke with the detective and the CPS before I did,
Speaker 4: and said that they want to talk to me, and
Speaker 4: that she told them that she was there and she
Speaker 4: picked up Brendan.
Speaker 1: That wasn't true. Of course, why do you think Cheryl
Speaker 1: said that so?
Speaker 3: I think she panicked. She was afraid that it would
Speaker 3: somehow look bad on her if she admitted that Brendan
Speaker 3: had been injured while he was in the care of
Speaker 3: a boyfriend.
Speaker 4: I have no idea what to say now, I'm already
Speaker 4: being looked at here and being detained, So like a dummy,
Speaker 4: I agreed and said that she was there, and she
Speaker 4: picked them up. So Cheryl's brother was a deputy sheriff
Speaker 4: and his wife at the time. She took it amongst
Speaker 4: herself to call the sheriff's department and talk to a
Speaker 4: detective and let them know that you might want to
Speaker 4: talk with Cheryl again because the story she gave you
Speaker 4: wasn't the truth.
Speaker 1: This episode is underwritten by global law firm Greenberg Trauig
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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 previously sentenced to life for crimes committed as juveniles
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Speaker 2: Work on five death penalty cases.
Speaker 1: GT is reimagining what big law can be because of
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Speaker 2: Only happens by design.
Speaker 1: So even though Cheryl was trying to be helpful, she
Speaker 1: made things worse. But that wasn't the only thing inflaming
Speaker 1: the suspicions of the detectives and CPS agents. Of course,
Speaker 1: I'm referring to what they were hearing from the pediatric
Speaker 1: norosurgeon at Children's Hospital in Detroit, who was now examining
Speaker 1: Brendan doctor Gilmer Hill.
Speaker 3: Who sees the swollen brain of the rtal hemorrhages and
Speaker 3: a subteral humanitoma. And she's been taught in medical school
Speaker 3: that you see those things. There's no other explanation for
Speaker 3: it other than some really far out there things like
Speaker 3: an unrestrained high speed crash or being dropped out of
Speaker 3: a third story window.
Speaker 1: Right short falls had not yet made it to the
Speaker 1: list of potential causes of the findings previously reflexively associated
Speaker 1: with the farce known as shaken baby syndrome. But since
Speaker 1: that time, we've learned that that triad of findings can
Speaker 1: be caused by a growing list of Currently, they might
Speaker 1: have had eighty one non traumatic medical conditions in addition
Speaker 1: to short falls, and unfortunately, in two thousand and four
Speaker 1: these causes were just beginning to be discovered. And since
Speaker 1: it's become abundantly clear that in the absence of a
Speaker 1: spinal injury, shaking cannot provide sufficient.
Speaker 2: Force to cause this tria.
Speaker 1: Out of findings, it just can't be done. That's how
Speaker 1: wrong the medical establishment had it. So with that, you
Speaker 1: might not be surprised to hear that doctor Gilmour Hill,
Speaker 1: in examining Brendan and his cat scan for head trauma
Speaker 1: being the hammer looking for the nail, they completely missed
Speaker 1: the mark on his forehead. She reported no external bruising,
Speaker 1: scalp swelling, or other signs of trauma. That's in her report.
Speaker 1: Yet Cheryl her family all folks who had no reason
Speaker 1: to protect Terry. They're obviously going to be taking the
Speaker 1: side of the baby. But they all noticed the mark
Speaker 1: on Brendan's forehead that was about the size of a
Speaker 1: fifty cent piece that would corroborate his version of events.
Speaker 3: They saw it at Port Heeron, and they saw it
Speaker 3: in Children's Hospital, and there was a nurse at Port
Speaker 3: Heroon who had seen the mark on the forehead, but
Speaker 3: mysteriously doctor gilmour Hill didn't. If there's an impact, you
Speaker 3: would expect there to be some kind of mark or
Speaker 3: some kind of bruise or an abrasion. If it's shaking
Speaker 3: and then slamming on a saft surface, you wouldn't necessarily
Speaker 3: expect to see any marks. And so at trial then
Speaker 3: the prosecutions argument is that you see, there's no marks
Speaker 3: in this baby. This baby didn't fall, this baby was shaken.
Speaker 4: They contact me, told me that I had a warrant
Speaker 4: for my rest, So I went, turned myself in, bonded
Speaker 4: myself out, you know, I was right back to Dad's
Speaker 4: at home, 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 Brendan'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 retained an attorney who
Speaker 1: she knew from her mail carrier, which was a guy
Speaker 1: named Ken Lord.
Speaker 4: My mom retained him for me. He told me it
Speaker 4: was going to be ten to twenty thousand dollars for
Speaker 4: me to retain this doctor to come speak in my behalf.
Speaker 4: And like I said, I'm a single father with a
Speaker 4: thirteen year old kid at the time. I'm living check
Speaker 4: to check. I don't have a couple grand in my
Speaker 4: bank account. I'm not living like that.
Speaker 2: Yeah.
Speaker 3: So, ken Lord's mistake here, which which we eventually many
Speaker 3: years later confirmed with the Michigan Supreme Court, was believing
Speaker 3: that he couldn't ask for money to help hire an
Speaker 3: expert if his client was retained as opposed to being appointed.
Speaker 3: That's just constitutionally wrong. The US Supreme Court had established
Speaker 3: a decade and a half earlier that there is a
Speaker 3: constitutional right to have an expert if an expert is
Speaker 3: needed for the case, and kin Lord had already consulted
Speaker 3: with a renowned expert, doctor Ferris Bandak.
Speaker 1: Doctor Ferris Bandak, a renowned figure in the field of
Speaker 1: biomechanics who testified in the very high profile Michael Peterson case.
Speaker 3: Who was prepared to give very helpful testimony explaining the
Speaker 3: problems with the shaken baby syndrome hypothesis, explaining why this
Speaker 3: case wouldn't fit within it, and because Terry's mom had
Speaker 3: retained Ken Lord, she was tapped out. She didn't have
Speaker 3: 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 5: I'm Kate Judson, the executive director of the Center for
Speaker 5: Integrity and Forensic Sciences. In the case of Terry Caesar,
Speaker 5: there were conflicting reports about whether sixteen month old Brendan
Speaker 5: had any external injuries. The external injuries that were reported
Speaker 5: could account for a potential impact site on his head
Speaker 5: with either the coffee table, the floor, or both. A
Speaker 5: CT scan showed subdural hematoma, and upon further investigation by
Speaker 5: the state's star witness, pediatric neurosurgeon doctor Gilmour Hill, she
Speaker 5: also noted brain swelling and retinal hemorrhage, the triad of
Speaker 5: findings often associated with the faulty hypothesis of SPS. She
Speaker 5: reported no external injuries and importantly, the absence of any
Speaker 5: fractures or neck injury. She concluded that Brendan's injuries were
Speaker 5: the result of violent shaking and could only otherwise be
Speaker 5: caused by a fall from a second story window or
Speaker 5: a high velocity car crash, and not by the shortfall
Speaker 5: Terry had described. Now Terry's attorney had consulted with an expert,
Speaker 5: doctor Bandeck, who put a background at engineering, he would
Speaker 5: have testified to a current understanding of injury kinematics that
Speaker 5: a short fall could cause injuries just like Brendan's. Terry's
Speaker 5: attorney also raised the work of doctor Gettis and doctor Plunkett,
Speaker 5: as well as doctor Gregory Riber, who had testified for
Speaker 5: the state against Zavion Johnson just three years prior. At
Speaker 5: Zavian's trial, he said that a shortfall with an impact
Speaker 5: could not cause the triad, but now he had learned
Speaker 5: that the opposite was true. Had any of them taken
Speaker 5: the stand, they would have been able to impeach doctor
Speaker 5: Gilmour Hill.
Speaker 3: It's really hard to believe that you wouldn't have gotten
Speaker 3: an acquittal if the Jerry heard from a very well credentialed,
Speaker 3: renowned expert who had studied shaking baby syndrome, like doctor
Speaker 3: Bandack had so.
Speaker 1: As a result of not asking the court to obtain
Speaker 1: funds to help Terry, ken Lord ended up cross examining
Speaker 1: doctor Gilmer Hill himself based on his notes from consulting
Speaker 1: with doctor Bandak. But I think we all know that
Speaker 1: cross examination of an expert witness doesn't pack the same
Speaker 1: punch with the jury as having your own.
Speaker 3: Expert, Because who's the jerry going to believe the doctor
Speaker 3: who insists that there's really no other explanation for these injuries,
Speaker 3: or the lawyer who's not a scientist, not a doctor,
Speaker 3: who tries to poke holes in that theory. And so
Speaker 3: unless the expert is exceptionally bad, cross examination will very
Speaker 3: rarely poke enough holes in an expert's certainty to cause
Speaker 3: 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 3: Cheryl did testify for the prosecution, but her testimony was
Speaker 3: actually very helpful to Terry, explaining that she trusted Terry.
Speaker 3: She explained the way the lie about whether she was
Speaker 3: there 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. For years, medical expert was testified
Speaker 1: that the most recent caregiver must be the culprit, when
Speaker 1: that was not true either. And Terry, I understand you
Speaker 1: took the stand as well.
Speaker 4: I told him, but I didn't hurt Brendan. You know,
Speaker 4: I've never even corrected him, and he wasn't a bad
Speaker 4: 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 4: I had over half the courtroom full, my mother, father, aunts, uncles,
Speaker 4: my son, my son's mother, employers, friends of family. I
Speaker 4: had a ton of people there, and Judge Dare didn't
Speaker 4: allow anybody to speak on my behalf. So it's like,
Speaker 4: how can I even feel that I had a fair trial.
Speaker 3: This case, even without anybody for the defense, was a
Speaker 3: extremely difficult case for the jury to result it took
Speaker 3: 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 4: Hill, and so they come up with their unanimous guilty.
Speaker 4: I'm devastated. So now I get to spend Christmas and
Speaker 4: New Year's with my family and my son, and then
Speaker 4: I know that after New Year's I'm going to prison
Speaker 4: for a crime that never even happened. The hardest part
Speaker 4: was taking my son to school the day of sentencing,
Speaker 4: dropping him off and telling him hopefully I'll be here,
Speaker 4: you know, after you get out of school. If not,
Speaker 4: then your mom will be here, And then go in
Speaker 4: there and finding out that my sentence is two to
Speaker 4: fifteen years, and then you have a son who's on
Speaker 4: the outside that you know you can only get fifteen
Speaker 4: minute phone calls, you know, and to hear the problems
Speaker 4: that he's had, and knowing that he wouldn't be having
Speaker 4: these problems if I was there where I should be,
Speaker 4: you know, But I was focused on getting me home
Speaker 4: and proving my innocence. I wanted to get back to
Speaker 4: 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 appeals 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 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 3: So in order to prove ineffective assistance, you have to
Speaker 3: prove that had the lawyer and not made the mistake,
Speaker 3: there's a reasonable probability there would have been a different outcome.
Speaker 3: And normally what you would do is you would attach
Speaker 3: affidavits from experts. You would call at this hearing and
Speaker 3: say send it back and have this evidentiary hearing in
Speaker 3: the trial court and will show that had defensive lawyer
Speaker 3: asked for an expert, he could have got a good
Speaker 3: expert that would have changed his case, and a Pelt
Speaker 3: 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 4: I was at the law library every day to learn
Speaker 4: how I could prove my innocence. A real good friend
Speaker 4: that I met while I was incarcerated, Demetrius Wells, showed
Speaker 4: me more stuff as far as the legal process and
Speaker 4: 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 4: They wanted an admission of guilt, you know. And that's
Speaker 4: the thing is, I'm not given an admission of guilt
Speaker 4: for something that I didn't do. I told them that
Speaker 4: I've done everything that they wanted to do. I never
Speaker 4: caught a ticket while I was incarcerated.
Speaker 1: Nonetheless, you were denied your first time around.
Speaker 4: They gave me an eighteenth month continuance because I didn't
Speaker 4: take an AOP class, which is an assault of offenders program.
Speaker 4: It was a stipulation for me to be parolled. So
Speaker 4: you have to pass this interview to even get into
Speaker 4: the program. You know, I'm telling them everything that happened,
Speaker 4: and I'm telling him the whole story, and it's like,
Speaker 4: you know, he's as well. It sounds to me like
Speaker 4: you're in denial and you don't want to admit. You know,
Speaker 4: how am I supposed to admit something that I didn't do?
Speaker 4: So I had to file a grievance in order for
Speaker 4: me to even get into this AOP class. I knew
Speaker 4: that if I didn't do this class, I'm not going home.
Speaker 4: They're just going to keep flopping me and flopping me
Speaker 4: 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're innocent of a crime that never even happened. So
Speaker 1: you had file the federal habeas in two thousand and
Speaker 1: eight pro se while reaching out to innocence organizations all
Speaker 1: over the country. But at that time you weren't getting
Speaker 1: any help, as so many projects in clinics were really
Speaker 1: focused on wins that they could almost call predictable that
Speaker 1: could be earned with DNA cases, and Dave, as an
Speaker 1: appellate public defender, you had seen the need for a
Speaker 1: different kind of innocence organization. So you connected with someone
Speaker 1: who had served as a public defender and eventually went
Speaker 1: on to be the Chief Justice of the Michigan Supreme Court,
Speaker 1: but at this point she was the dean for clinics
Speaker 1: at Michigan Law and of course I'm talking about Bridget McCormick.
Speaker 3: And we decided, with her public defender background as a
Speaker 3: trial lawyer and my public defender background as an appellate lawyer,
Speaker 3: we'd make a pretty good team, and so we co
Speaker 3: founded the Michigan Innocence Clinic as a non DNA innocence project,
Speaker 3: which officially opened into its doors in January two thousand
Speaker 3: and nine, just about the time Terry was finishing up
Speaker 3: his sentence. He was still incarcerated at that point, and
Speaker 3: so Terry was one of the first wave of people
Speaker 3: to write us, and his was one of the very
Speaker 3: first set of cases that we took.
Speaker 4: It was like, you know, here's your sign, this is
Speaker 4: what you've been waiting for all this work and everything
Speaker 4: that you've done. I finally have somebody that I can
Speaker 4: give this to, that can you know, finish this relay
Speaker 4: for me because I can't run this race no more.
Speaker 4: 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 2: Headed out the door.
Speaker 1: What was that day like for you? Terry?
Speaker 4: It went from hell to trying to learn how to
Speaker 4: live again. To be able to go to the bathroom
Speaker 4: when I needed to go to the bathroom was a
Speaker 4: wonderful thing. It's the simple things to ply toilet paper.
Speaker 4: Some hindes ketch up everything that we take for granted
Speaker 4: every day. Was the stuff that I think that I
Speaker 4: missed the most, you know, a late gas bill, you
Speaker 4: know what I mean, the stuff that I sweated before.
Speaker 4: I'm like, I look at now and I'm like, you know,
Speaker 4: I mean this shit. Really this stressed me out before,
Speaker 4: 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 2: It was.
Speaker 4: It was awesome. In prison, you get like a hug
Speaker 4: when you see them in a hug when they leave.
Speaker 4: So to be able to see him and honestly be
Speaker 4: able to talk to him without just come effort 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 by parole.
Speaker 4: I legally couldn't see Cody because I was not allowed
Speaker 4: to have contact with anybody under the age of eighteen,
Speaker 4: So I had to get special permission from my parole
Speaker 4: agent for me to even be able to see my son.
Speaker 4: And then the worst part about it was is my
Speaker 4: first year of parole, my granddaughter was born and I
Speaker 4: could not be around her or see her for the
Speaker 4: first year of her life. I've had all these things
Speaker 4: taken away from me for nothing, and.
Speaker 1: 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 appellet counsel should have done guns blazing
Speaker 1: with four expert witnesses, including doctor John Plunkett, the forensic
Speaker 1: pathologists who we mentioned earlier from his pioneering challenges to SBS.
Speaker 3: We knew that there was a big problem with these
Speaker 3: shaking baby cases. We read the transcript of doctor gilmer
Speaker 3: 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: manually 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 assists and claims were
Speaker 1: your main arguments, but Terry had already raised the claims
Speaker 1: against his trial attorney.
Speaker 3: There was obvious error here, both by the trial lawyer
Speaker 3: and the appellate lawyer. So we filed a post conviction
Speaker 3: motion in Michigan for appellate lawyer's failure to properly litigate
Speaker 3: the trial lawyers in effectiveness. And so it goes back
Speaker 3: to the same judge in front of whom Terry had
Speaker 3: been convicted.
Speaker 1: That would be Judge of Dare again.
Speaker 3: And that judge just does not get it at all.
Speaker 3: That judge says, you can't raise this because this is
Speaker 3: the same issue that Terry raised on appeal, ineffective assistance
Speaker 3: of council, and we said no, Terry raised ineffective assistance
Speaker 3: a trial council on appeal. We're now raising ineffective assistance
Speaker 3: of appellate lawyer for failing to file the motion to
Speaker 3: 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 counsel
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 Darre'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 reach the sixth Circuit.
Speaker 3: And we go to the sixth Circuit, and we had
Speaker 3: a terrific student attorney, one of the law students worked
Speaker 3: on the case, and she wiped the floor with the
Speaker 3: Assistant Attorney General who was arguing against the petition.
Speaker 1: And that terrific student attorney, by the way, it was
Speaker 1: named Meredith Collier.
Speaker 3: It was a legal mismatch it likes you seldom to see.
Speaker 3: And so the end result of that, all of that
Speaker 3: was we finally emerge in twenty seventeen with a ruling
Speaker 3: from the federal court that Terry received ineffective assistance of
Speaker 3: 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 Dar'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 3: And we end up in front of a successor judge
Speaker 3: in Saint Clair County Port Huron, who now says, well,
Speaker 3: you know, I'm just not so sure that Terry was
Speaker 3: really poor, And so we end up having to hold
Speaker 3: a whole evidentiary hearing to establish that Terry was too
Speaker 3: poor to afford an expert. And what the judge ends
Speaker 3: up finding is all right, well, Terry is poor. But
Speaker 3: we lose because the judge says it was a reasonable
Speaker 3: decision for ken Lord not to ask for money because
Speaker 3: Judge Adair might have denied it. Wait what, yeah, the
Speaker 3: successor judges, But it was that when I was a lawyer,
Speaker 3: if I'd asked for that, Judge A. Dare probably would
Speaker 3: have laughed me out of court. But that ruling would
Speaker 3: be wrong.
Speaker 1: Adare'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.
Speaker 2: Defies all reason.
Speaker 1: And we've covered Saint Clair County only one time before
Speaker 1: running into this same kind of maddening logic defying issues.
Speaker 1: And of course I'm talking about Temwajinkenzu, and we're going
Speaker 1: to have that incredible episode linked in the bio.
Speaker 4: This is the most corrupt county in Michigan. I don't
Speaker 4: even know how to describe it. Besides it's a good
Speaker 4: old boy. If you ate a good old boy, then
Speaker 4: you ain't got nothing coming. I've been through more than
Speaker 4: my fair share of courts in Saint Clair County. At
Speaker 4: this courthouse here in Port you're on. This is the
Speaker 4: only place that I've ever seen an attorney give their
Speaker 4: client back their money and tell them if there's nothing
Speaker 4: I can do for you here. These attorneys from other
Speaker 4: cities come here and they get laughed right out of
Speaker 4: the courtroom. Everybody's in cahoots with each other here.
Speaker 1: So in order to receive justice, you had to get
Speaker 1: out of Saint Clair County.
Speaker 3: I argue the case in the Michigan Streme Court, and finally,
Speaker 3: in March of twenty twenty one, the Michigan Supreme Court
Speaker 3: issues a short order concluding that Terry gets a new trial.
Speaker 3: And there was this case is so clear that it's
Speaker 3: not even worth writing an opinion, and so the Michigan
Speaker 3: Spreme Court rules in our favor. Terry's conviction is vacated,
Speaker 3: and then the prosecution in Saint Clair County then sat
Speaker 3: around for months and months after March twenty twenty one,
Speaker 3: and finally dismissed the charges in September twenty twenty one.
Speaker 3: So that's the point where Terry officially becomes exonerated.
Speaker 4: I'm just I felt that I was blessed to discover
Speaker 4: the University of Michigan Law School and this is clinic.
Speaker 4: 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 4: I have no felony on my record. I can have
Speaker 4: a passport, I can go anywhere I want, I can
Speaker 4: have firearms. But here in Michigan, there's a thing called
Speaker 4: the Michigan Central Registry, and it doesn't matter if there
Speaker 4: was a crime or not. If somebody feels that you
Speaker 4: 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, and so on. And so when the folks
Speaker 1: at Michigan Law tried to get your name removed rightfully,
Speaker 1: so there was some unexpected confusion.
Speaker 4: So when they contact the Central Registry, they say, well,
Speaker 4: which one are you trying to get removed? Because there's
Speaker 4: more than one. So you have them reaches out to
Speaker 4: me and they're like, you know, do you have any
Speaker 4: idea of something happening back in ninety five? And I'm
Speaker 4: like no, They're saying something about your child, and I goes,
Speaker 4: I don't have a child. That says my only child
Speaker 4: is Cody. That's the only child I've ever had, and
Speaker 4: I had custody of my child. So I'm kind of
Speaker 4: 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 4: I'm still battling this. They told my son he can't
Speaker 4: leave my twelve year old grandson with me unless there's
Speaker 4: another adult here or he can get in trouble for that.
Speaker 4: I just want my life back, you know. I just
Speaker 4: 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, Terry, anything you want to tell our audience.
Speaker 4: Please everybody turn your ears on for this one. CPS
Speaker 4: cannot come in your house unless they're there with a
Speaker 4: police and a warrant. You do not have to talk
Speaker 4: to CPS. You do not have to let them in
Speaker 4: your house. There is nothing they can do to you.
Speaker 4: They have to come there with police and a warrant.
Speaker 4: They cannot just come into your house. They can't. They
Speaker 4: can't just take your kids from you.
Speaker 1: Well, unfortunately, you've learned all of this the hard way, Terry,
Speaker 1: but we're so glad that you've made it through. Now
Speaker 1: it's time for closing arguments, where I thank you both
Speaker 1: for sharing this story, and now I'm just gonna turn
Speaker 1: my microphone off, kick back in my chair, and listen
Speaker 1: to whatever else you two amazing humans want to say. So, Dave,
Speaker 1: why don't you kick it off and then hand it
Speaker 1: over to Terry.
Speaker 3: I'm really glad we achieved justice for Terry. I'm really
Speaker 3: sorry how long it took that he had to be
Speaker 3: patient for more than twelve years of us fighting this
Speaker 3: thing up and down the courts. It's a great example
Speaker 3: of how resistant the courts are to doing justice in
Speaker 3: these cases. People are still in prison based on bogus
Speaker 3: shaking baby syndrome testimony, and it's our goal to find
Speaker 3: as many of them as we can and win them, because,
Speaker 3: as Terry's case shows, these diagnoses that are made without
Speaker 3: sound science and made with far far too much certainty
Speaker 3: wreck people's lives.
Speaker 6: Terry's experience was awful, but there are people who are
Speaker 6: serving life sentences because the baby died, and we need
Speaker 6: to root out as many of these cases as we can.
Speaker 6: We need to really stop this kind of testimony from
Speaker 6: being given in the first place.
Speaker 4: My closing arguments would be love your family, love your
Speaker 4: loved ones. If there's people that you are not talking
Speaker 4: to because of different circumstances, I think you need to
Speaker 4: try to right those wrongs. And I think it's time
Speaker 4: for people to start mending bridges. It feels like this
Speaker 4: whole COVID thing is, you know, it's been like a
Speaker 4: bomb that blew us all apart, and it's these pieces
Speaker 4: are just floating all around and everybody's everybody's all about
Speaker 4: themselves anymore. I remember when I was a kid growing
Speaker 4: up when there was times like this. This is when
Speaker 4: families pulled together, you know, when they were there for
Speaker 4: one another. I think that we just need to love
Speaker 4: our kids and teach our kids, you know, so they
Speaker 4: don't do our wrongs and make mistakes that you know
Speaker 4: that we've 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 La Robinson,
Speaker 1: Jeff Clyburn and Kevin Warns.
Speaker 2: The music in this.
Speaker 1: Production was supplied by three time OSCAR nominated composer Jay Ralph.
Speaker 1: Be sure to follow us on Instagram at Wrongful Conviction,
Speaker 1: on Facebook at Wrongful Conviction Podcast, and on Twitter at
Speaker 1: Wrong Conviction as well as at Lava for Good.
Speaker 2: On all three platforms.
Speaker 1: You can also follow me on both TikTok and Instagram
Speaker 1: at it's Jason Flamm. Wrongful Conviction is a production of
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Speaker 1: one