- Associated Press - Wednesday, August 19, 2015

HELENA, Mont. (AP) - A Missoula man convicted of shaking his 3-month-old son to death will get another chance to contest the verdict and his 40-year sentence.

The Montana Supreme Court ruled Tuesday that a district court must reconsider Robert J. Wilkes’ appeal and new evidence in the 2008 death of his son, Gabriel.

“It’s a step in the right direction in getting him proper justice,” Wilkes’ older brother, Tony Wilkes, said of the ruling.

The attorney general’s office offered no comment on the case and Robert Wilkes’ current and former attorneys could not be reached for comment Wednesday.

Wilkes claims public defender Scott Spencer provided ineffective counsel by calling no witnesses other than Wilkes and never challenging the state’s shaken-baby syndrome theory during the 2009 trial.

The Montana Innocence Project reinforced Wilkes’ appeal with new evidence and arguments when its attorneys, Larry Mansch and Brendan McQuillan, began representing him in 2011.

Spencer said in affidavits that he had consulted at least once with Dr. Thomas Bennett, a former state medical examiner whose Montana contract was not renewed this summer amid concerns that his autopsies risked wrongful prosecution.

The Innocence Project claims the consultation was extremely limited and that effective counsel would have better utilized information from Bennett or other doctors.

“Spencer did not ask Bennett or any other independent medical expert to view the autopsy report prepared by medical examiner Dr. Sally Akin,” Wilkes’ lawyers wrote in the 2012 petition.

The report said the manner of Gabriel’s death was undetermined, according to Wilkes’ lawyers.

The Innocence Project also presented testimony from pathologists and pediatricians that Gabriel had a hemorrhage caused by a mildly traumatic birth or a rare and often fatal liver disorder. Both conditions present effects similar to abusive head injuries, the lawyers said.

“He did not suffer abuse,” Dr. Joseph Scheller, a pediatric neurologist in Maryland, wrote in the 2012 appeal. “He died from a rare but real medical condition.”

The state has argued that the head injury is consistent with shaken-baby syndrome that could only have occurred while Gabriel was in the care of his father. Wilkes, now 44 years old, was convicted of deliberate homicide in 2009.

Tony Wilkes said his brother spent less than a year at the state prison and has since been incarcerated at Crossroads Correctional Facility in Shelby.

“I saw him holding his baby, three or four days after he was born I visited, and just the pride and the joy he had in that baby - there’s no way he could have done anything to hurt the baby.” Tony Wilkes said.

The case will return to Montana’s 4th Judicial District.

Spencer has received at least one other complaint that his counsel was ineffective. The state Supreme Court denied an appeal in 2013 from a man convicted of driving under the influence who argued Spencer should have called toxicologists as witnesses and questioned the chain of custody of a blood sample.

Convicted clients are often dissatisfied, Montana Chief Public Defender William Hooks said. The ineffective counsel argument is not uncommon in the world of public defenders, he said, adding, “I’ve had it raised against me multiple times.”

___

This story has been corrected to reflect the case will not return to District Judge Ed McLean, who has retired.


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