A Tragic Case of Shaken Infant Syndrome and the Murder Charge that Followed 37 Years Later

July 28, 2021 Don Pumphrey, Jr. Criminal Defense, News & Announcements Social Share

The Facts

Terry McKirchy was charged with attempted murder and aggravated child abuse for shaking 5-month-old Benjamin Dowling when she was babysitting him on July 3, 1984. When Benjamin’s mother picked him up from McKirchy’s home she was immediately concerned as his body was limp and his fists were clenched. After rushing him to the hospital, doctors determined that Benjamin suffered from a brain hemorrhage as a result of Shaken Infant Syndrome , rendering his brain permanently damaged. Upon accepting a plea deal, McKirchy’s sentence included serving weekends in jail for three months until her baby was born and three years of probation. In 2019, Dowling passed away at his family’s home in Bradenton, Florida, at the age of 35. A Florida medical examiner stated that the cause of death were the injuries he sustained under McKirchy’s care. As a result, a Broward County grand Jury recently indicted McKirchy, who is now 59-years-old and lives in Texas, with first-degree murder and she will have to return to the state for trial. The gap of time between the incident and the charge certainly makes this seem like an unusual case, however, prosecutors stated that “the passage of time between the injuries sustained and the death of the victim were considered by forensic experts who conducted the autopsy and ruled the death was directly caused by the injuries in 1984.”

A Shockingly Lenient Sentence

McKirchy stated she was innocent to the Miami Herald in 1985 and maintains her innocence today, stating that Benjamin’s injuries were a result of him falling off the couch. Although she pled guilty to the initial charges, she stated that she only did so to resolve the case as she was six- months pregnant at the time. Today, the sentence McKirchy received still garnishes disbelief, as Benjamin never recovered from his injuries, and could never walk, talk, take care of himself, or eat without the assistance of a feeding tube, requiring his parents and caregivers to help him with his basic needs throughout his life. Miami defense lawyer David Weinstein, stated “it is difficult to know what went into the 1985 deal­–perhaps witnesses were not available or the medical evidence was not strong. Prosecutors may have felt McKirchy’s pregnancy would make it difficult to get a conviction, [however] today, he said, prosecutors may think a homicide case is stronger because perhaps the medical and scientific evidence has progressed.”

Is McKirchy Being Charged for the Same Crime Twice?

Although on the surface it seems like McKirchy is being tried again for the same crime, that is not the case. The Double Jeopardy Clause in the Fifth Amendment to the United States Constitution prohibits anyone from being prosecuted for the same crime twice, stating “No person shall…be subject for the same offense to be twice put in jeopardy of life or limb…”. However, the attempted murder charge McKirchy faced in 1984 is a different crime than the first-degree murder charge she faces today. Furthermore, the time that elapsed in this case does not cause a statute of limitations issue. A “Statute of Limitations is the limit that prosecutors have for filing criminal charges against a suspect, which vary depending on the severity of the crime and the jurisdiction in which the crime took place. According to Section 775.15 of the Florida Statutes , there is no time restriction to bring charges for serious crimes such as capital felonies, life felonies, or felonies that resulted in death.

Likely Defense Strategies

The lapse of time will likely be at the center of each argument made by the defense team. Such a long period of time from the incident to the trial means that it is unlikely that anyone involved will have a clear memory of the incident. In addition, many witnesses may be difficult to find, no longer remember the details of what they witnessed, or may even no longer be alive.

Tallahassee Murder Defense Attorney

A murder conviction in Florida can happen even decades after the incident in question. If you or a loved one has been charged with murder in the state of Florida, contact an aggressive and experienced Tallahassee criminal defense attorney as soon as possible to discuss your case and explore your options. Don Pumphrey and the legal team at Pumphrey Law Firm are experienced in defending against murder charges and can ensure that you or a loved one are given a zealous and complete defense. Call (850) 681-7777 or send an online message today for an open and free consultation with an attorney in our legal team.

This article was written by Sarah Kamide

  Social Share