April 27, 2023 • 36 mins
On October 3, 2004, in Port Huron, MI, Terry Ceasor was at home alone with his girlfriend Cheryl’s 1 year old son, Brenden. Terry and Brenden had been playing a game that consisted of Terry chasing Brenden behind the couch when Terry briefly stepped away from the room to use the bathroom. After he left the room, Terry heard a loud thud and found Brenden unconscious on the living room floor. The medical professionals at the hospital believed that Brenden was a victim of Shaken Baby Syndrome and Terry was subsequently convicted of child abuse and sentenced to 2 to 15 years in prison. Jason talks to Terry Ceasor and Dave Moran, Terry's attorney.
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Episode Transcript
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Speaker 1 (00:03):
In the fall of two thousand and four, Terry Caesar
and his son were living in Poor Huron, Michigan, occasionally
staying with his girlfriend, Cheryl, her six year old daughter, Darien,
and sixteen month old son Brendan. On the morning of
October three, Cheryl and her daughter were out while Terry
stayed home with the sleeping toddler. When they returned, Terry
was panicked and Brenton was unconscious and struggling to breathe.
(00:26):
They rushed him to the hospital, where he was given
a cat scan and then transferred to Children's Hospital in Detroit.
The child recovered after a few days, but by then
a pediatric neurosurgeon had ruled that bleeding on the brain
indicated that Brendan had been the victim of violent shaking,
and Terry was immediately the number one suspect. Although he
(00:47):
maintained that Brendan had fallen from the couch, Terry was
arrested and charged with first degree child abuse. At trial,
the doctor testified that the findings associated with shaking baby
syndrome present and could not have been caused by the
shortfall that Terry had described. It would seem highly unlikely
that an experienced pediatric neurosurgeon could be mistaken, but this
(01:13):
is wrongful conviction. Welcome back to wrongful conviction. I'm Jason
Flahman today once again talking about a case that revolves
around the hypothesis that has never been tested, but somehow,
(01:39):
inexplicably became the accepted orthodoxy of fallback, whatever you want
to call it, of the medical community. And thankfully it's
long since been debunked. And of course I'm talking about
shaken baby syndrome or SBS. Now Terry Caesar spent almost
four years in prison because of this faulty diagnosis and
(02:00):
more than a decade trying to clear his name. So Terry,
I'm sorry for what you went through man, But welcome
to wraful conviction. Thank you, well, You're welcome and joining
us as the co founder and co director of the
Michigan Innoscence Clinic and Michigan Law School. Dave Moran, Thanks Dave.
I understand that you and the Michigan Innisance Clinic I
have already exonerated six people and counting of this non
(02:22):
existent crime. And we've talked about this so many times,
most recently with Zavi on Johnson, John Jones, and Ohio
Robert robertson who's on death row in Texas to this day?
The list is long, and one case is more horrifying
than the last one. We did a full breakdown of
sbs SO Shaking Baby Centroume on wraeful Conviction junk Science
(02:43):
with our host Josh Dubin and the executive director of
the Center for Integrity and Forensic Sciences, Kate Judson, and
Kate is going to join us a bit later now.
Terry's case happened back in two thousand and four, when
most of the medical establishments still seem to just reflexively
jump to the conclusion and that if a kid was
in some sort of terrible distress and the triad of
(03:04):
findings were there brain bleed, brain swelling, and bleeding behind
the eyes, that automatically well must be diagnostic of child abuse.
Speaker 2 (03:12):
But already by that point there were challenges to shaking
baby syndrome, and of course Terry's case revolves around that,
is that the challenge to shaking baby syndrome should have
been presented.
Speaker 1 (03:22):
John Plunkett had already done his seminal project on the subject,
and biomechanical research into car seat safety had already begun
to shred the viability of what was thought to be
established science. We now know it's junk science. But unfortunately
Terry's attorney didn't realize the court was constitutionally bound to
provide funding for an expert defense witness. And we're going
(03:43):
to get into that a bit later on. But first, Terry,
you grew up in Port Huron, Michigan, right all my
life now, way before this happened. You had a son
named Cody, and a little after he was born, you
had a brush with an event in which there was
a sick child that a young woman had claimed was
your child. This was all the way back in nineteen
ninety five.
Speaker 3 (04:00):
So it was a girl.
Speaker 4 (04:01):
She was already three or four months pregnant when we
had slept together. One day in like Juna ninety five,
this girl shows up at my house with this baby
in the stroller, telling me it's my son, and something
was wrong with the baby. The baby wasn't breathing right.
Ambulance took the kid from my house. So they tried
saying that I was the father of this child. So
I went through everything proven that I wasn't the father.
(04:21):
I took a DNA test.
Speaker 1 (04:22):
But unbeknownst to you, your name had been on this
central registry in Michigan ever since nineteen ninety five, just
for having been mentioned in the same breath of another
child who had been brought into a hospital from your home. Right.
Speaker 4 (04:34):
So, this is the craziest thing is I found out
about this in twenty twenty one. This was never brought
up in my two thousand and four case. But they
did use this against me in my two thousand and
four case, and I have paperwork to prove it.
Speaker 1 (04:46):
Right, And as we so often see in rompic conviction cases,
is that sometimes the police are motivated by someone's criminal record,
and in this case, a perceived criminal record. Now, like
you said, you didn't find out about this in twenty
twenty one, and we're going to get back to that later.
But Terry, let's go to your life at the time
of this incident. In two thousand and four, you were
thirty three years old, a single dad. Your son Cody
(05:08):
was around thirteen. Right, tell me about him and about
your life together.
Speaker 4 (05:13):
He was an honorable student, all star athlete. He wrestled football, basketball, baseball,
We played hockey. We would go camp and fishing. It
was a great father son. But we were like best
friends at the same.
Speaker 1 (05:26):
And at that time, you were also in a relationship
with a woman named Cheryl Ganna, and she had a
couple of kids too, Darien, her six year old daughter,
and Brendan, who was about sixteen months old.
Speaker 4 (05:36):
The kids got along great. We had weekends where the
kids would be with us, and then we had weekends
where the kids would go with the other parents. So
we had our time, we had family time. Everything was good,
all right.
Speaker 1 (05:50):
Were you living together at the time.
Speaker 3 (05:52):
No, she had her own place. We would stay like
back and forth between the two.
Speaker 1 (05:56):
So let's go now to October third, two thousand and four.
You and Cheryl were together with her kids at your place,
So tell me about that.
Speaker 4 (06:06):
Sunday morning, my son Cody spent the night at his
friend Tyler Brown's house. Darien, Brendan, and Cheryl were with
me at the house, and while we were eating breakfast,
Darien was talking about that she wanted to go swimming.
Brendan's still sleeping at this time because he's been sick.
He had fallen at daycare the Thursday before this weekend
that he was with us, So she was going to
(06:28):
have Brendan go to his grandma's house, and I told her,
I says, if you guys are only going to be
gone for like an hour hour and a half, just
let him sleep a little over an hour after they left,
Brendan woke up. I took him out of the bedroom,
got him some stuff to eat. I finished up feeding them,
went into the kitchen to put the spoon in the
sink and throw the stuff away, and he was standing
up on my couch with his back towards me, looking
(06:50):
forward at the TV. So I got down on my
hands and knees and came up around the couch and
was playing Gotcha.
Speaker 3 (06:56):
This was something that we did all the time.
Speaker 4 (06:58):
He was going back and forth on the couch, you know,
trying to get away from me tickleing him. And while
I was doing that, I had to use the bathroom.
It was like right around the corner, I'm like five
feet away, but I just can't see because there's a
corner there. From while I'm going to the bathroom, I
hear a thang thud, and then it's just complete silence
besides the TV going, and you knew something was wrong.
(07:21):
So I came out and I don't see Brendan. I
take a couple more steps into the living room, and
then I see Brendan in between my couch and my table.
His legs are going up the couch, his butt is
on the floor, and his left shoulder is like popped
up against the leg of my table. But he's like
he's like slouched back in his head's back like limp noodled.
Speaker 1 (07:43):
And with this fall happening between the couch and the
coffee table, potentially there was an impact on the table
before the impact with the floor. So you ran over
to him, like any loving parent would.
Speaker 4 (07:55):
I grab his head and support his head, and I
picked Brendan up, and as soon as his head comes forward,
some blood trickles of his mouth, so I look in
his mouth, and he bit his tongue so I can
start to see like a bruising on his forehead, and
then it looked like a carpet mark, like little red
dots on the spot in the back of his head.
And you know, he's like barely breathing.
Speaker 1 (08:15):
And I understand that Cheryl and Darien got home right
after this.
Speaker 4 (08:18):
Happened, and I told her Brendan fell and he's unresponsive.
We go support your own hospital and within a minute
or two they have him alert, crying, you know, so
I'm relieved.
Speaker 1 (08:30):
Right good, So it seems like this is where that
story really should have ended.
Speaker 4 (08:34):
The hospital staff kept telling me like, don't worry, your
son's going to be fine, and I'm like, I'm not
the father, I'm her boyfriend, and everything from that point changed.
Speaker 1 (08:43):
Meanwhile, the emergency room position, doctor Hunt noticed that one
of Brendan's pupils was dilated more than the other, so
he ordered a cat scan and that scan showed a
subdualhematoma or bleeding in the brain that was having a
mass effect, meaning that it was pushing the brain to
one side. So he ordered to transfer to Children's Hospital
and did you right by ambulance to see a pediatric neurosurgeon.
With the first of the findings showing up, it appears
(09:06):
that suspicion was aroused that only continued to grow as
they were hearing back from the specialist, doctor Gilmer Hill.
Speaker 2 (09:14):
In some of these hospitals, you have people who are
really firmly committed to the shaken baby hypothesis. It's kind
of like the hammer looking for the nail, and they're
quick to diagnose it. Doctor Gilmour Hill is the one
who concludes this is child abases. She becomes the star
witness against Terry at his trial.
Speaker 1 (09:31):
And then, of course they've called in CPS and detectives
at this point, and unfortunately Cheryl made an unfortunate choice.
Speaker 4 (09:38):
Cheryl spoke with the detective and the CPS before I did,
and said that they want to talk to me and
that she told them that she was there and she
picked up Brendan.
Speaker 1 (09:48):
That wasn't true. Of course, why do you think Cheryl
said that so?
Speaker 2 (09:51):
I think she panicked. She was afraid that it would
somehow look bad on her if she admitted that Brendan
had been injured while he would in the care of
a boyfriend.
Speaker 3 (10:01):
I have no idea what to say now.
Speaker 4 (10:03):
I'm already being looked at here and being detained, So
like a dummy, I agreed and said that she was
there and she picked them up. So Cheryl's brother was
a deputy sheriff and his wife at the time. She
took it amongst herself to call the Sheriff's department and
talk to a detective and let them know that you
might want to talk with Cheryl again because the story
she gave you wasn't the truth.
Speaker 1 (10:38):
This episode is underwritten by global law firm Greenberg Trauig.
Through its pro bono program, Greenberg Trowig leverages it's more
than twenty six hundred lawyers across forty four offices to
serve the greater good of our communities and provide equal
access to justice for all. In the field of criminal justice,
Greenberg Trowrig attorneys have exonerated and freedomanded Philadelphia represent numerous
(10:59):
individuals previous sentenced to life for crimes committed as juveniles
and resentencing hearings, and received the American Bar Association's twenty
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what big law can be because of a more just world.
Only happens by design. So even though Cheryl was trying
(11:26):
to be helpful, she made things worse. But that wasn't
the only thing. In flaming suspicions of the detectives and
CPS agents, of course, I'm referring to what they were
hearing from the pediatric neurosurgeon at Children's Hospital in Detroit
who was now examining Brendon doctor Gilmer Hill.
Speaker 2 (11:40):
Who sees the swollen brain of the rtal hemorrhages and
a subdural humanitoma, and she's been taught in medical school
that you see those things. There's no other explanation for
it other than some really far out there things like
an unrestrained high speed crash or being dropped out of
a third story window.
Speaker 1 (11:58):
Right, short falls not yet made it to the list
of potential causes of the findings previously reflexively associated with
the farce known as shaken baby syndrome. But since that time,
we've learned that that triad of findings can be caused
by a growing list of Currently, they might have had
eighty one non traumatic medical conditions in addition to short falls,
(12:21):
And unfortunately, in two thousand and four, these causes were
just beginning to be discovered. And since it's become abundantly
clear that in the absence of a spinal injury, shaking
cannot provide sufficient force to cause this triad of findings.
It just can't be done. That's how wrong the medical
establishment had it. So with that you might not be
(12:41):
surprised to hear that doctor Gilmer Hill, in examining Brendan
and his cat scan for head trauma being the hammer
looking for the nail, they completely missed the mark on
his forehead. She reported no external bruising, scalp swelling, or
other signs of trauma. That's in her report. Yet Cheryl
her family all folks who had no reason to protect Terry.
They're obviously going to be taking the side of the baby.
(13:03):
But they all noticed the mark on Brendan's forehead that
was about the size of a fifty cent piece that
would corroborate his version of events.
Speaker 2 (13:10):
They saw it at Port Huron, and they saw it
in Children's hospital, and there was a nurse in Port
Heuron who had seen the mark on the forehead, but
mysteriously doctor Gilmour Hill didn't. If there's an impact, you
would expect there to be some kind of mark or
some kind of bruise or an abrasion. If it's shaking
and then slamming on a soft surface, you wouldn't necessarily
expect to see any marks. And so at trial then
(13:31):
the prosecutions argument is that you see there's no marks
in this baby. This baby didn't fall, this baby was shaken.
Speaker 4 (13:37):
They contact me told me that I had a warrant
for my arrests. I went, turned myself in, bonded myself out.
Speaker 3 (13:42):
You know.
Speaker 4 (13:42):
I was right back to Dad's at home, Dad's working,
you know.
Speaker 1 (13:47):
And this arrest was inexplicably delayed until January two thousand
and five. Brendan had made a full recovery by then.
Now neither Cheryl nor her family were pressing charges, so
perhaps they had to wait until Brenda's father would. Either way,
the state seemed hell bent on taking this to trial.
And I understand that your mother retains an attorney who
(14:07):
she knew from her mail carrier, which was a guy
named ken Lord.
Speaker 3 (14:10):
My mom retained him for me.
Speaker 4 (14:12):
He told me it was going to be ten to
twenty thousand dollars for me to retain this doctor to
come speak in my behalf. And like I said, I'm
a single father with a thirteen year old kid at
the time. I'm living check to check. I don't have
a couple grand in my bank account. I'm not living
like that.
Speaker 1 (14:25):
Yeah.
Speaker 2 (14:25):
So ken Lord's mistake here, which we eventually many years
later confirmed with the Michigan Supreme Court, was believing that
he couldn't ask for money to help hire an expert
if his client was retained as opposed to being appointed,
that's just constitutionally wrong. The US Supreme Court had established
a decade and a half earlier that there is a
(14:47):
constitutional right to have an expert if an expert is
needed for the case, and ken Lord had already consulted
with a renowned expert, doctor Ferris Bandak.
Speaker 1 (14:55):
Doctor Ferris Bandak, a renowned figure in the field of biomechanics,
were tested for in the very high profile Michael Peterson case.
Speaker 2 (15:02):
Who was prepared to give very helpful testimony explaining the
problems with the shaken baby syndrome hypothesis, explaining why this
case wouldn't fit within it. And because Terry's mom had
retained Ken Lord, she was tapped out. She didn't have
the money to hire an expensive expert.
Speaker 1 (15:19):
So you went to trial in December of two thousand
and five, and the trial was overseen by Judge of
Dare And of course the state was leaning heavily on
the testimony of doctor Gilmer Hill, the neurosurgeon who had
seen Brendan had Children's Hospital in Detroit.
Speaker 5 (15:31):
I'm Kate Judson, the executive director of the Center for
Integrity and Forensic Sciences, In the case of Terry Caesar,
there were conflicting reports about whether sixteen month old Brendan
had any external injuries. The external injuries that were reported
could account for a potential impact site on his head
with either the coffee table, the floor, or both. A
CT scan showed subdural hematoma, and upon further investigation by
(15:54):
the state's star witness pediatric neurosurgeon, doctor Gilmer Hill, she
also noted brain swelling and right hemorrhage, the triad of
findings often associated with the faulty hypothesis of SPS. She
reported no external injuries and importantly the absence of any
fractures or neck injury. She concluded that Brendan's injuries were
the result of violent shaking and could only otherwise be
(16:14):
caused by a fall from a second story window or
a high velocity car crash, and not by the shortfall
Terry had described. Now Terry's an attorney had consulted with
an expert, doctor Bendeck, who put a background at engineering,
he would have testified to our current understanding of injury
kinematics that a short fall could cause injuries just like Brendan's.
Terry's attorney also raised the work of doctor Gettis and
(16:35):
doctor Plunkett, as well as doctor Gregory Riber, who had
testified for the state against Zavion Johnson just three years prior.
At Zavian's trial, he said that a short fall with
an impact could not cause the triad, but now he
had learned that the opposite was true. Had any of
them taken the stand, they would have been able to
impeach doctor Gilmour Hill.
Speaker 2 (16:55):
It's really hard to believe that you wouldn't have gotten
an acquittal if the jury her from a very well credentialed,
renowned expert who would study shaking baby syndrome like doctor
Bandyck had.
Speaker 1 (17:06):
So as a result of not asking the court to
obtain funds to help Terry Ken, Lord ended up cross
examining doctor Gilmer Hill himself based on his notes from
consulting with doctor Bandak. But I think we all know
that cross examination of an expert witness doesn't pack the
same punch with the jury as having your own.
Speaker 2 (17:23):
Expert, because who's the jury going to believe the doctor
who insists that there's really no other explanation for these
injuries or the lawyer who's not a scientist, not a
doctor who tries to poke holes in that theory, and
so unless the expert is exceptionally bad, cross examination will
very rarely poke enough holes in an expert's certainty to
(17:47):
cause the jury to have reasonable doubt.
Speaker 1 (17:48):
So the state had this in the bag, but presented
the child's mother, Cheryl, as well, with the assumption that
raising the specter of her lie in the emergency room
would seal the deal.
Speaker 2 (18:00):
Cheryl did testify for the prosecution, but her testimony was
actually very helpful Terry, explaining that she trusted Terry, she
explained the way to lie about whether she was there
or not, confirmed that it was her lie, not Terry's.
Speaker 1 (18:13):
And she also testified that Brendan had had a fall
at daycare a few days before. As you told us earlier, Terry,
we now know that a child could experience a lucid
interval for a few days before coming to the results
of an initial trauma. So for years medical expert was
has testified that the most recent caregiver must be the culprit,
when that was not true either. And Terry, I understand
(18:37):
you took the stand as well.
Speaker 4 (18:38):
I told him, but I didn't hurt Brendan. You know,
I've never even corrected him, and he wasn't a bad
kid that needed corrections.
Speaker 3 (18:46):
Honestly, he was a good kid.
Speaker 1 (18:47):
And there were no character witnesses allowed to understand, which
would have gone a long way towards backing you up
on all of that.
Speaker 4 (18:54):
I had over half the courtroom full, my mother, father,
aunt's uncles, my son, my son's mother, employers, friends of family.
I had a ton of people there, and Judge Dare
didn't allow anybody to speak on my behalf. So it's like,
how can I even feel that I had a fair trial.
Speaker 2 (19:11):
This case, even without anybody for the defense, was an
extremely difficult case for the jury result. It took them
days and they were deadlocked.
Speaker 1 (19:19):
Right and this, by the way, is right before Christmas,
when these people could have really, probably very badly wanted
to be spending their time with their families getting ready
for the holidays. So who knows how that played into
how they eventually came around to side with doctor Gilmer.
Speaker 4 (19:36):
Hill, and so they come up with their unanimous guilty.
Speaker 3 (19:40):
I'm devastated.
Speaker 4 (19:41):
So now I get to spend Christmas and New Year's
with my family and my son, and then I know
that after New year's I'm going to prison for a
crime that never even happened.
Speaker 3 (20:08):
The hardest part.
Speaker 4 (20:09):
Was taking my son to school the day of sentencing,
dropping him off and telling him, hopefully I'll be here,
you know, after you get out of school.
Speaker 3 (20:18):
If not, then your mom will be here.
Speaker 4 (20:22):
And then going there and finding out that my sentence
is two to fifteen years. And then to have a
son who's on the outside that you know, you can
only get fifteen minute phone calls, you know, and to
hear the problems that he's having, knowing that he wouldn't
be having these problems if I was there where I
should be, you know. But I was focused on getting
(20:45):
me home and proving my innocence. I wanted to get
back to my son.
Speaker 1 (20:49):
Tragically, you were stolen from him, let's call it what
it is, during his prime formative years. Now. By two
thousand and seven, you had been studying the law and
working on your appeal process. You petitioned the Michigan Court
of Appeals with an ineffective Assistance of Council claim based
on ken Lord's misunderstanding that the court would not provide
an expert because you had retained ken Lord, so almost
(21:11):
like they thought if you had the money for that,
you should have the money for this, and that eventually
became the basis of the filings that they've prepared with
the Michigan Innocence Clinic. But at that time it failed. Dave,
do you have any theories as to why that petition
didn't work out?
Speaker 2 (21:23):
So in order to prove ineffective assistance, you have to
prove that had the lawyer not made the mistake, there's
a reasonable probability there would have been a different outcome.
And normally what you would do is you would attach
affidavits from experts you would call at this hearing and
say send it back and have this evidentiary hearing in
the trial court and will show that had defensive lawyer
(21:46):
asked for an expert, he could have got a good
expert that would have changed his case, and a pel
lawyer just didn't do that.
Speaker 1 (21:52):
So not only had your trial attorney failed you, but
then appellet Council had as well. Terry, I understand at
this point you took an even more active role in
developing your own appeals.
Speaker 4 (22:02):
I was at the law library every day to learn
how I could prove my innocence. A real good friend
that I met while I was incarcerated, Demetrius Welsh showed
me more stuff as far as the legal process and
how to prepare legal briefs.
Speaker 1 (22:16):
Meanwhile, you were seeking parole as well, but the board
wanted what you couldn't give them.
Speaker 4 (22:21):
They wanted admission of guilt, you know. And that's the
thing is, I'm not given an admission of guilt for
something that I didn't do. I told them that I've
done everything that they wanted to do. I never caught
a ticket while I was incarcerated.
Speaker 1 (22:33):
Nonetheless, you were denied your first time around.
Speaker 4 (22:36):
They gave me an eighteenth month continuance because I didn't
take an AOP class, which is an Assault of Offenders program.
It was a stipulation for me to be parolled. So
you have to pass this interview to even get into
the program. You know, I'm telling them everything that happened,
and I'm telling him the whole story, and it's like,
you know, he's as well. It sounds to me like
you're in denial and you don't want to admit. You know,
(22:57):
how am I supposed to admit something that I didn't do?
So I had to file at grievance in order for
me to even get into this AOP class. I knew
that if I didn't do this class, I'm not going home.
They're just going to keep flopping me and flop me
and flop me till I do my fifteen years.
Speaker 1 (23:12):
So you did that program, but no matter what, the
goal was obviously exoneration because you were innocent. In fact,
you were innocent of a crime that never even happened.
So you had filed the Federal habeas in two thousand
and eight pro se while reaching out to innocence organizations
all over the country. But at that time you weren't
getting any help, as so many projects and clinics were
really focused on wins that they could almost call predictable
(23:35):
that could be earned with d NA cases, and Dave
as an appellate public defender, you had seen the need
for a different kind of innocence organization. So you connected
with someone who had served as a public defender and
eventually went on to be the Chief Justice of the
Michigan Supreme Court. But at this point she was the
dean for clinics at Michigan Law. And of course I'm
talking about Bridget McCormick.
Speaker 2 (23:53):
And we decided with her public defender background as a
trial lawyer and my public defender background as an appellate lawyer,
we'd make a pretty good team. And so we co
founded the Michigan Innocence Clinic as a non DNA innocence project,
which officially opened into its doors in January two thousand
and nine, just about the time Terry was finishing up
his sentence. He was still incarcerated at that point, and
(24:15):
so Terry was one of the first wave of people
to write us, and his was one of the very
first set of cases that we took.
Speaker 3 (24:22):
It was like, you know, here's your sign.
Speaker 4 (24:24):
This is what you've been waiting for, all this work
and everything that you've done. I finally have somebody that
I can give this to, that can you know, finish
this relay for me because I can't run this race
no more.
Speaker 3 (24:35):
There's no more that I can do.
Speaker 1 (24:37):
And by then you finally had a barol day coming
up October sixth, two thousand and nine, so you were
headed out the door. What was that day like for you? Terry?
Speaker 4 (24:46):
It went from how to trying to learn how to
live again, to be able to go to the bathroom
when I needed to go to the bathroom was a
wonderful thing.
Speaker 3 (24:54):
This is the simple things. Two ply toilet paper.
Speaker 4 (24:57):
Some hies catch up everything that we take for granted
every day. Was the stuff that I think that I
missed the most, you know, a late gas bill, you
know what I mean, the stuff that I sweated before.
I'm like, I look at now and I'm like, you know,
I mean this shit. Really this stressed me out before,
and I like laugh at that.
Speaker 1 (25:12):
And to finally get to be with your son again
after five long years.
Speaker 3 (25:17):
It was. It was awesome.
Speaker 4 (25:18):
In prison, you get like a hug when you see him,
in a hug when they leave. So to be able
to see him and honestly be able to talk to
him without discomfort was awesome.
Speaker 1 (25:30):
But let's not forget you were still on parole, which,
as we here described over and over again, even though
you're technically free, it's almost like just being in a
bigger prison.
Speaker 4 (25:38):
By parole, I legally couldn't see Cody because I was
not allowed to have contact with anybody under the age
of eighteen, So I had to get special permission from
my parole agent for me to even be able to
see my son. And then the worst part about it
was is my first year of parole, my granddaughter was
born and I could not be around her or see
(26:00):
her for the first year of her life. I've had
all these things taken away from me for nothing.
Speaker 1 (26:06):
And so clearing your name could not happen soon enough, Dave,
As I understand it, you all went into court as
his trial and appellate counsel should have done guns blazing
with four expert witnesses, including doctor John Plunkett, the forensic
pathologist who we mentioned earlier from his pioneering challenges to SBS.
Speaker 2 (26:25):
We knew that there was a big problem with these
shaking baby cases. We read the transcript of doctor Gilmer
Hill's testimony and it was way out there in our view.
Speaker 1 (26:36):
So these four experts said that doctor Gilmer Hill gave
the jury incorrect information regarding the biomechanics of infant head injury,
short distance falls, and also abusive shaking. Each of them
noted that criticisms of shaking baby syndrome existed at the
time of the trial or earlier, and that they would
have offered these same opinions if they had been asked
to testify back in two thousand and five. They also
(26:56):
said that injury biomechanics confirmed that when a child is
manual shaken, he or she will suffer a neck injury
or gripping style chest injuries well before sustaining a subdural
hematoma or retinal hemorrhage, which is the understanding that undermines
nearly just about every single SBS prosecution, maybe all of them.
They concluded that Brendan's injuries were consistent with a short
(27:18):
fall from the couch onto the coffee table or the floor,
and totally inconsistent with abuse of shaking. But proving innocence
is not enough, So the ineffective assistant claims were your
main arguments. But Terry had already raised the claims against
his trial attorney.
Speaker 2 (27:33):
There was obvious error here, both by the trial lawyer
and the appellate lawyer. So we filed a post conviction
motion in Michigan for appellate lawyer's failure to properly litigate
the trial lawyers in effectiveness. And so it goes back
to the same judge in front of whom Terry had
been convicted.
Speaker 1 (27:52):
That would be Judge A Dare again.
Speaker 2 (27:55):
And that judge just does not get it at all.
That judge says, you can't raise this because this is
the same issue that Terry raised on appeal, ineffective assistance
of council, and we said no, Terry raised ineffective assistance
a trial council on appeal. We're now raising ineffective assistance
of appellate lawyer for failing to file the motion to
(28:15):
have an evidentiary hearing.
Speaker 1 (28:16):
Right in which the appellate attorney could have presented experts
to support the challenges to SBS and Judge of Dare's
confusion over the fact that both trial and appellate council
had failed you, but only the claim against trial council
had been raised that kept justice from being done here
for over a decade. And so you appealed Dare's decision,
which involved a number of procedural hurdles that took the
(28:36):
better part of the next six years through both the
state and federal systems until you finally reached the Sixth Circuit.
Speaker 2 (28:43):
And we go to the Sixth Circuit and we had
a terrific student attorney, one of the law students working
on the case, and she wiped the floor with the
Assistant Attorney General who was arguing against the petition.
Speaker 1 (28:56):
And that terrific student attorney, by the way, was named
Meredith Collier.
Speaker 2 (29:00):
It was a legal mismatch. It likes you seldom a see.
And so the end result of that, all of that
was we finally emerge in twenty seventeen with a ruling
from the federal court that Terry received ineffective assistance of
a Pellet council.
Speaker 1 (29:14):
So you get to file a new appeal, basically starting
back in the trial court, so Judge of Dari's court,
but he had retired at this point, and you got
to present Terry's original ineffective assistance claim about ken Lord
not asking the court to provide funds to the defense
for an expert witness.
Speaker 2 (29:29):
And we end up in front of a successor judge
in Saint Clair County port Hereon, who now says, well,
you know, I'm just not so sure that Terry was
really poor, and so we ended up having to hold
a whole evidentiary hearing to establish that Terry was too
poor to afford an expert And what the judge ends
up finding is, all right, well, Terry is poor, but
(29:51):
we lose because the judge says it was a reasonable
decision for Ken lord not to ask for money because
Judge A Dare might have denied it. Wait what yeah,
the successor judges. But it was that when I was
a lawyer, if I'd asked for that, Judge A Dare
probably would have laughed me out of court. But that
ruling would be wrong.
Speaker 1 (30:10):
Adair's alleged tendency to rule against providing the funds for
an expert would have been unconstitutional anyway. I mean, this
is obstinence that defies all reason. And we've covered Saint
Clair County only one time before running into this same
kind of maddening logic defying issues. And of course I'm
talking about temwijen Kenzu and we're going to have that
(30:32):
incredible episode linked in the bio. So in order to
receive justice, you had to get out of Saint Clair County.
Speaker 2 (30:37):
I argue the case in the Michigan Streme Court, and finally,
in March of twenty twenty one, the Michigan Supreme Court
issues a short order concluding that Terry gets a new trial.
And there was this case is so clear that it's
not even worth writing an opinion, and so the Michigan
Streme Court rules in our favor Terry's conviction is vacated,
and then the prosecution in Saint Clair County then sat
(30:58):
around for months and months after March twenty twenty one,
and finally dismiss the charges in September twenty twenty one.
So that's the point where Terry officially becomes exonerated.
Speaker 4 (31:09):
I'm just I felt that I was blessed to discover
the University of Michigan Law School and this is clinic.
Without them, I don't know where I would be right now.
Speaker 1 (31:18):
So, after all you'd been through Terry, you'd think exoneration
would be the end of the road. Your life is
seemingly back to normal, But as we've learned, there's almost
always a chance for another shoe to drop.
Speaker 3 (31:30):
I have no felony on my record.
Speaker 4 (31:32):
I can have a passport, I can go anywhere I want,
I can have firearms. But here in Michigan, there's a
thing called the Michigan Central Registry, and it doesn't matter
if there was a crime or not. If somebody feels
that you did something, then they'll put you on this registry.
Speaker 1 (31:48):
That's the registry maintained by Children's Protective Services. Are people
who have either been convicted suspected or whose names were
even breathed in the general direction of child abuse, neglect,
sexual exploitation go on. And so when the folks at
Michigan Law tried to get your name removed rightfully, so
there was some unexpected confusion.
Speaker 4 (32:08):
So when they contact the Central Registry, they say, well,
which one are you trying to get removed, because there's
more than one. So Um reaches out to me and
they're like, you know, do you have any idea of
something happening back in ninety five? And I'm like no,
They're saying something about your child, and I goes, I
don't have a child. That says my only child is Cody.
(32:29):
That's the only child I've ever had, and I had custody.
Speaker 3 (32:31):
Of my child. So I'm kind of confused here.
Speaker 1 (32:34):
And this is the situation that we briefly discussed earlier
with the woman back in nineteen ninety five who claimed
you were the father when her child was rushed to
the hospital. So even with your exoneration, you of m
was still having difficulty removing you from this list and
undoing the damage.
Speaker 4 (32:50):
I'm still battling this. They told my son he can't
leave my twelve year old grandson with me unless there's
another adult here or he can get in trouble for that.
Speaker 3 (32:59):
I just want my life back, you know. I just
want to enjoy my time with my grandkids, right.
Speaker 1 (33:03):
And that's the real crime here that a guy who
literally did nothing wrong was a loving dad still after
all these years, is not allowed to babysit his own grandchildren.
But I know there are great people at U of
M who are working on getting you off that list,
and in fact, we're going to have a link in
the bio for anyone who wants to support their incredibly
important work. So now it's time for closing arguments, where
(33:26):
I thank you both for sharing this story, and now
I'm just going to turn my microphone off, kick back
in my chair and listen to whatever else you two
amazing humans want to say. So, Dave, why don't you
kick it off and then hand it over to Terry.
Speaker 2 (33:42):
I'm really glad we achieved justice for Terry. I'm really
sorry how long it took that he had to be
patient for more than twelve years of us fighting this
thing up and down the courts. It's a great example
of how resistant the courts are to doing justice these
cases I people are still in prison based on bogus
(34:03):
shaking baby syndrome testimony, and it's our goal to find
as many of them as we can and win them, because,
as Terry's case shows, these diagnoses that are made without
sound science and made with far, far too much certainty
wreck people's lives. Terry, you know, Terry's experience was awful,
(34:23):
but there are people who are serving life sentences because
the baby died, and we need to root out as
many of these cases as we can. We need to
really stop this kind of testimony from being given in
the first place.
Speaker 4 (34:35):
My closing ar events would be love your family, Love
your loved ones. If there's people that you are not
talking to because of different circumstances, I think you need
to try to right those wrongs. And I think it's
time for people to start mending bridges. It feels like
this whole COVID thing is, you know, it's been like
(34:57):
a bomb that blew us all apart and at least
are just floating all around and everybody's everybody's all about
themselves anymore. I remember when I was a kid growing up,
when there was times like this. This is when families
pulled together you know, when they were there for one another.
I think that we just need to love our kids
and teach our kids, you know, so they don't do
(35:17):
our wrongs and make mistakes that you know that we've
occurred in our life.
Speaker 1 (35:29):
Thank you for listening to Wrongful Conviction. I want to
thank our production team Connor hall Any, Chelsea Lea Robinson,
Jeff Clyburn, and Kevin Warris. The music in this production
was supplied by three time OSCAR nominated composer Jay Ralph.
Be sure to follow us on Instagram at Wrongful Conviction,
on Facebook at Wrongful Conviction podcast, and on Twitter at
(35:51):
wrong Conviction, as well as at Lava for Good. On
all three platforms, you can also follow me on both
TikTok and Instagram at it's Jason Ravel. Conviction is a
production of Lava for Good Podcasts and association with Signal
Company Number one
In the fall of two thousand and four, Terry Caesar
and his son were living in Poor Huron, Michigan, occasionally
staying with his girlfriend, Cheryl, her six year old daughter, Darien,
and sixteen month old son Brendan. On the morning of
October three, Cheryl and her daughter were out while Terry
stayed home with the sleeping toddler. When they returned, Terry
was panicked and Brenton was unconscious and struggling to breathe.
(00:26):
They rushed him to the hospital, where he was given
a cat scan and then transferred to Children's Hospital in Detroit.
The child recovered after a few days, but by then
a pediatric neurosurgeon had ruled that bleeding on the brain
indicated that Brendan had been the victim of violent shaking,
and Terry was immediately the number one suspect. Although he
(00:47):
maintained that Brendan had fallen from the couch, Terry was
arrested and charged with first degree child abuse. At trial,
the doctor testified that the findings associated with shaking baby
syndrome present and could not have been caused by the
shortfall that Terry had described. It would seem highly unlikely
that an experienced pediatric neurosurgeon could be mistaken, but this
(01:13):
is wrongful conviction. Welcome back to wrongful conviction. I'm Jason
Flahman today once again talking about a case that revolves
around the hypothesis that has never been tested, but somehow,
(01:39):
inexplicably became the accepted orthodoxy of fallback, whatever you want
to call it, of the medical community. And thankfully it's
long since been debunked. And of course I'm talking about
shaken baby syndrome or SBS. Now Terry Caesar spent almost
four years in prison because of this faulty diagnosis and
(02:00):
more than a decade trying to clear his name. So Terry,
I'm sorry for what you went through man, But welcome
to wraful conviction. Thank you, well, You're welcome and joining
us as the co founder and co director of the
Michigan Innoscence Clinic and Michigan Law School. Dave Moran, Thanks Dave.
I understand that you and the Michigan Innisance Clinic I
have already exonerated six people and counting of this non
(02:22):
existent crime. And we've talked about this so many times,
most recently with Zavi on Johnson, John Jones, and Ohio
Robert robertson who's on death row in Texas to this day?
The list is long, and one case is more horrifying
than the last one. We did a full breakdown of
sbs SO Shaking Baby Centroume on wraeful Conviction junk Science
(02:43):
with our host Josh Dubin and the executive director of
the Center for Integrity and Forensic Sciences, Kate Judson, and
Kate is going to join us a bit later now.
Terry's case happened back in two thousand and four, when
most of the medical establishments still seem to just reflexively
jump to the conclusion and that if a kid was
in some sort of terrible distress and the triad of
(03:04):
findings were there brain bleed, brain swelling, and bleeding behind
the eyes, that automatically well must be diagnostic of child abuse.
Speaker 2 (03:12):
But already by that point there were challenges to shaking
baby syndrome, and of course Terry's case revolves around that,
is that the challenge to shaking baby syndrome should have
been presented.
Speaker 1 (03:22):
John Plunkett had already done his seminal project on the subject,
and biomechanical research into car seat safety had already begun
to shred the viability of what was thought to be
established science. We now know it's junk science. But unfortunately
Terry's attorney didn't realize the court was constitutionally bound to
provide funding for an expert defense witness. And we're going
(03:43):
to get into that a bit later on. But first, Terry,
you grew up in Port Huron, Michigan, right all my
life now, way before this happened. You had a son
named Cody, and a little after he was born, you
had a brush with an event in which there was
a sick child that a young woman had claimed was
your child. This was all the way back in nineteen
ninety five.
Speaker 3 (04:00):
So it was a girl.
Speaker 4 (04:01):
She was already three or four months pregnant when we
had slept together. One day in like Juna ninety five,
this girl shows up at my house with this baby
in the stroller, telling me it's my son, and something
was wrong with the baby. The baby wasn't breathing right.
Ambulance took the kid from my house. So they tried
saying that I was the father of this child. So
I went through everything proven that I wasn't the father.
(04:21):
I took a DNA test.
Speaker 1 (04:22):
But unbeknownst to you, your name had been on this
central registry in Michigan ever since nineteen ninety five, just
for having been mentioned in the same breath of another
child who had been brought into a hospital from your home. Right.
Speaker 4 (04:34):
So, this is the craziest thing is I found out
about this in twenty twenty one. This was never brought
up in my two thousand and four case. But they
did use this against me in my two thousand and
four case, and I have paperwork to prove it.
Speaker 1 (04:46):
Right, And as we so often see in rompic conviction cases,
is that sometimes the police are motivated by someone's criminal record,
and in this case, a perceived criminal record. Now, like
you said, you didn't find out about this in twenty
twenty one, and we're going to get back to that later.
But Terry, let's go to your life at the time
of this incident. In two thousand and four, you were
thirty three years old, a single dad. Your son Cody
(05:08):
was around thirteen. Right, tell me about him and about
your life together.
Speaker 4 (05:13):
He was an honorable student, all star athlete. He wrestled football, basketball, baseball,
We played hockey. We would go camp and fishing. It
was a great father son. But we were like best
friends at the same.
Speaker 1 (05:26):
And at that time, you were also in a relationship
with a woman named Cheryl Ganna, and she had a
couple of kids too, Darien, her six year old daughter,
and Brendan, who was about sixteen months old.
Speaker 4 (05:36):
The kids got along great. We had weekends where the
kids would be with us, and then we had weekends
where the kids would go with the other parents. So
we had our time, we had family time. Everything was good,
all right.
Speaker 1 (05:50):
Were you living together at the time.
Speaker 3 (05:52):
No, she had her own place. We would stay like
back and forth between the two.
Speaker 1 (05:56):
So let's go now to October third, two thousand and four.
You and Cheryl were together with her kids at your place,
So tell me about that.
Speaker 4 (06:06):
Sunday morning, my son Cody spent the night at his
friend Tyler Brown's house. Darien, Brendan, and Cheryl were with
me at the house, and while we were eating breakfast,
Darien was talking about that she wanted to go swimming.
Brendan's still sleeping at this time because he's been sick.
He had fallen at daycare the Thursday before this weekend
that he was with us, So she was going to
(06:28):
have Brendan go to his grandma's house, and I told her,
I says, if you guys are only going to be
gone for like an hour hour and a half, just
let him sleep a little over an hour after they left,
Brendan woke up. I took him out of the bedroom,
got him some stuff to eat. I finished up feeding them,
went into the kitchen to put the spoon in the
sink and throw the stuff away, and he was standing
up on my couch with his back towards me, looking
(06:50):
forward at the TV. So I got down on my
hands and knees and came up around the couch and
was playing Gotcha.
Speaker 3 (06:56):
This was something that we did all the time.
Speaker 4 (06:58):
He was going back and forth on the couch, you know,
trying to get away from me tickleing him. And while
I was doing that, I had to use the bathroom.
It was like right around the corner, I'm like five
feet away, but I just can't see because there's a
corner there. From while I'm going to the bathroom, I
hear a thang thud, and then it's just complete silence
besides the TV going, and you knew something was wrong.
(07:21):
So I came out and I don't see Brendan. I
take a couple more steps into the living room, and
then I see Brendan in between my couch and my table.
His legs are going up the couch, his butt is
on the floor, and his left shoulder is like popped
up against the leg of my table. But he's like
he's like slouched back in his head's back like limp noodled.
Speaker 1 (07:43):
And with this fall happening between the couch and the
coffee table, potentially there was an impact on the table
before the impact with the floor. So you ran over
to him, like any loving parent would.
Speaker 4 (07:55):
I grab his head and support his head, and I
picked Brendan up, and as soon as his head comes forward,
some blood trickles of his mouth, so I look in
his mouth, and he bit his tongue so I can
start to see like a bruising on his forehead, and
then it looked like a carpet mark, like little red
dots on the spot in the back of his head.
And you know, he's like barely breathing.
Speaker 1 (08:15):
And I understand that Cheryl and Darien got home right
after this.
Speaker 4 (08:18):
Happened, and I told her Brendan fell and he's unresponsive.
We go support your own hospital and within a minute
or two they have him alert, crying, you know, so
I'm relieved.
Speaker 1 (08:30):
Right good, So it seems like this is where that
story really should have ended.
Speaker 4 (08:34):
The hospital staff kept telling me like, don't worry, your
son's going to be fine, and I'm like, I'm not
the father, I'm her boyfriend, and everything from that point changed.
Speaker 1 (08:43):
Meanwhile, the emergency room position, doctor Hunt noticed that one
of Brendan's pupils was dilated more than the other, so
he ordered a cat scan and that scan showed a
subdualhematoma or bleeding in the brain that was having a
mass effect, meaning that it was pushing the brain to
one side. So he ordered to transfer to Children's Hospital
and did you right by ambulance to see a pediatric neurosurgeon.
With the first of the findings showing up, it appears
(09:06):
that suspicion was aroused that only continued to grow as
they were hearing back from the specialist, doctor Gilmer Hill.
Speaker 2 (09:14):
In some of these hospitals, you have people who are
really firmly committed to the shaken baby hypothesis. It's kind
of like the hammer looking for the nail, and they're
quick to diagnose it. Doctor Gilmour Hill is the one
who concludes this is child abases. She becomes the star
witness against Terry at his trial.
Speaker 1 (09:31):
And then, of course they've called in CPS and detectives
at this point, and unfortunately Cheryl made an unfortunate choice.
Speaker 4 (09:38):
Cheryl spoke with the detective and the CPS before I did,
and said that they want to talk to me and
that she told them that she was there and she
picked up Brendan.
Speaker 1 (09:48):
That wasn't true. Of course, why do you think Cheryl
said that so?
Speaker 2 (09:51):
I think she panicked. She was afraid that it would
somehow look bad on her if she admitted that Brendan
had been injured while he would in the care of
a boyfriend.
Speaker 3 (10:01):
I have no idea what to say now.
Speaker 4 (10:03):
I'm already being looked at here and being detained, So
like a dummy, I agreed and said that she was
there and she picked them up. So Cheryl's brother was
a deputy sheriff and his wife at the time. She
took it amongst herself to call the Sheriff's department and
talk to a detective and let them know that you
might want to talk with Cheryl again because the story
she gave you wasn't the truth.
Speaker 1 (10:38):
This episode is underwritten by global law firm Greenberg Trauig.
Through its pro bono program, Greenberg Trowig leverages it's more
than twenty six hundred lawyers across forty four offices to
serve the greater good of our communities and provide equal
access to justice for all. In the field of criminal justice,
Greenberg Trowrig attorneys have exonerated and freedomanded Philadelphia represent numerous
(10:59):
individuals previous sentenced to life for crimes committed as juveniles
and resentencing hearings, and received the American Bar Association's twenty
twenty one Exceptional Service Award for Death Penalty Representation for
their work on five death penalty cases. GT is reimagining
what big law can be because of a more just world.
Only happens by design. So even though Cheryl was trying
(11:26):
to be helpful, she made things worse. But that wasn't
the only thing. In flaming suspicions of the detectives and
CPS agents, of course, I'm referring to what they were
hearing from the pediatric neurosurgeon at Children's Hospital in Detroit
who was now examining Brendon doctor Gilmer Hill.
Speaker 2 (11:40):
Who sees the swollen brain of the rtal hemorrhages and
a subdural humanitoma, and she's been taught in medical school
that you see those things. There's no other explanation for
it other than some really far out there things like
an unrestrained high speed crash or being dropped out of
a third story window.
Speaker 1 (11:58):
Right, short falls not yet made it to the list
of potential causes of the findings previously reflexively associated with
the farce known as shaken baby syndrome. But since that time,
we've learned that that triad of findings can be caused
by a growing list of Currently, they might have had
eighty one non traumatic medical conditions in addition to short falls,
(12:21):
And unfortunately, in two thousand and four, these causes were
just beginning to be discovered. And since it's become abundantly
clear that in the absence of a spinal injury, shaking
cannot provide sufficient force to cause this triad of findings.
It just can't be done. That's how wrong the medical
establishment had it. So with that you might not be
(12:41):
surprised to hear that doctor Gilmer Hill, in examining Brendan
and his cat scan for head trauma being the hammer
looking for the nail, they completely missed the mark on
his forehead. She reported no external bruising, scalp swelling, or
other signs of trauma. That's in her report. Yet Cheryl
her family all folks who had no reason to protect Terry.
They're obviously going to be taking the side of the baby.
(13:03):
But they all noticed the mark on Brendan's forehead that
was about the size of a fifty cent piece that
would corroborate his version of events.
Speaker 2 (13:10):
They saw it at Port Huron, and they saw it
in Children's hospital, and there was a nurse in Port
Heuron who had seen the mark on the forehead, but
mysteriously doctor Gilmour Hill didn't. If there's an impact, you
would expect there to be some kind of mark or
some kind of bruise or an abrasion. If it's shaking
and then slamming on a soft surface, you wouldn't necessarily
expect to see any marks. And so at trial then
(13:31):
the prosecutions argument is that you see there's no marks
in this baby. This baby didn't fall, this baby was shaken.
Speaker 4 (13:37):
They contact me told me that I had a warrant
for my arrests. I went, turned myself in, bonded myself out.
Speaker 3 (13:42):
You know.
Speaker 4 (13:42):
I was right back to Dad's at home, Dad's working,
you know.
Speaker 1 (13:47):
And this arrest was inexplicably delayed until January two thousand
and five. Brendan had made a full recovery by then.
Now neither Cheryl nor her family were pressing charges, so
perhaps they had to wait until Brenda's father would. Either way,
the state seemed hell bent on taking this to trial.
And I understand that your mother retains an attorney who
(14:07):
she knew from her mail carrier, which was a guy
named ken Lord.
Speaker 3 (14:10):
My mom retained him for me.
Speaker 4 (14:12):
He told me it was going to be ten to
twenty thousand dollars for me to retain this doctor to
come speak in my behalf. And like I said, I'm
a single father with a thirteen year old kid at
the time. I'm living check to check. I don't have
a couple grand in my bank account. I'm not living
like that.
Speaker 1 (14:25):
Yeah.
Speaker 2 (14:25):
So ken Lord's mistake here, which we eventually many years
later confirmed with the Michigan Supreme Court, was believing that
he couldn't ask for money to help hire an expert
if his client was retained as opposed to being appointed,
that's just constitutionally wrong. The US Supreme Court had established
a decade and a half earlier that there is a
(14:47):
constitutional right to have an expert if an expert is
needed for the case, and ken Lord had already consulted
with a renowned expert, doctor Ferris Bandak.
Speaker 1 (14:55):
Doctor Ferris Bandak, a renowned figure in the field of biomechanics,
were tested for in the very high profile Michael Peterson case.
Speaker 2 (15:02):
Who was prepared to give very helpful testimony explaining the
problems with the shaken baby syndrome hypothesis, explaining why this
case wouldn't fit within it. And because Terry's mom had
retained Ken Lord, she was tapped out. She didn't have
the money to hire an expensive expert.
Speaker 1 (15:19):
So you went to trial in December of two thousand
and five, and the trial was overseen by Judge of
Dare And of course the state was leaning heavily on
the testimony of doctor Gilmer Hill, the neurosurgeon who had
seen Brendan had Children's Hospital in Detroit.
Speaker 5 (15:31):
I'm Kate Judson, the executive director of the Center for
Integrity and Forensic Sciences, In the case of Terry Caesar,
there were conflicting reports about whether sixteen month old Brendan
had any external injuries. The external injuries that were reported
could account for a potential impact site on his head
with either the coffee table, the floor, or both. A
CT scan showed subdural hematoma, and upon further investigation by
(15:54):
the state's star witness pediatric neurosurgeon, doctor Gilmer Hill, she
also noted brain swelling and right hemorrhage, the triad of
findings often associated with the faulty hypothesis of SPS. She
reported no external injuries and importantly the absence of any
fractures or neck injury. She concluded that Brendan's injuries were
the result of violent shaking and could only otherwise be
(16:14):
caused by a fall from a second story window or
a high velocity car crash, and not by the shortfall
Terry had described. Now Terry's an attorney had consulted with
an expert, doctor Bendeck, who put a background at engineering,
he would have testified to our current understanding of injury
kinematics that a short fall could cause injuries just like Brendan's.
Terry's attorney also raised the work of doctor Gettis and
(16:35):
doctor Plunkett, as well as doctor Gregory Riber, who had
testified for the state against Zavion Johnson just three years prior.
At Zavian's trial, he said that a short fall with
an impact could not cause the triad, but now he
had learned that the opposite was true. Had any of
them taken the stand, they would have been able to
impeach doctor Gilmour Hill.
Speaker 2 (16:55):
It's really hard to believe that you wouldn't have gotten
an acquittal if the jury her from a very well credentialed,
renowned expert who would study shaking baby syndrome like doctor
Bandyck had.
Speaker 1 (17:06):
So as a result of not asking the court to
obtain funds to help Terry Ken, Lord ended up cross
examining doctor Gilmer Hill himself based on his notes from
consulting with doctor Bandak. But I think we all know
that cross examination of an expert witness doesn't pack the
same punch with the jury as having your own.
Speaker 2 (17:23):
Expert, because who's the jury going to believe the doctor
who insists that there's really no other explanation for these
injuries or the lawyer who's not a scientist, not a
doctor who tries to poke holes in that theory, and
so unless the expert is exceptionally bad, cross examination will
very rarely poke enough holes in an expert's certainty to
(17:47):
cause the jury to have reasonable doubt.
Speaker 1 (17:48):
So the state had this in the bag, but presented
the child's mother, Cheryl, as well, with the assumption that
raising the specter of her lie in the emergency room
would seal the deal.
Speaker 2 (18:00):
Cheryl did testify for the prosecution, but her testimony was
actually very helpful Terry, explaining that she trusted Terry, she
explained the way to lie about whether she was there
or not, confirmed that it was her lie, not Terry's.
Speaker 1 (18:13):
And she also testified that Brendan had had a fall
at daycare a few days before. As you told us earlier, Terry,
we now know that a child could experience a lucid
interval for a few days before coming to the results
of an initial trauma. So for years medical expert was
has testified that the most recent caregiver must be the culprit,
when that was not true either. And Terry, I understand
(18:37):
you took the stand as well.
Speaker 4 (18:38):
I told him, but I didn't hurt Brendan. You know,
I've never even corrected him, and he wasn't a bad
kid that needed corrections.
Speaker 3 (18:46):
Honestly, he was a good kid.
Speaker 1 (18:47):
And there were no character witnesses allowed to understand, which
would have gone a long way towards backing you up
on all of that.
Speaker 4 (18:54):
I had over half the courtroom full, my mother, father,
aunt's uncles, my son, my son's mother, employers, friends of family.
I had a ton of people there, and Judge Dare
didn't allow anybody to speak on my behalf. So it's like,
how can I even feel that I had a fair trial.
Speaker 2 (19:11):
This case, even without anybody for the defense, was an
extremely difficult case for the jury result. It took them
days and they were deadlocked.
Speaker 1 (19:19):
Right and this, by the way, is right before Christmas,
when these people could have really, probably very badly wanted
to be spending their time with their families getting ready
for the holidays. So who knows how that played into
how they eventually came around to side with doctor Gilmer.
Speaker 4 (19:36):
Hill, and so they come up with their unanimous guilty.
Speaker 3 (19:40):
I'm devastated.
Speaker 4 (19:41):
So now I get to spend Christmas and New Year's
with my family and my son, and then I know
that after New year's I'm going to prison for a
crime that never even happened.
Speaker 3 (20:08):
The hardest part.
Speaker 4 (20:09):
Was taking my son to school the day of sentencing,
dropping him off and telling him, hopefully I'll be here,
you know, after you get out of school.
Speaker 3 (20:18):
If not, then your mom will be here.
Speaker 4 (20:22):
And then going there and finding out that my sentence
is two to fifteen years. And then to have a
son who's on the outside that you know, you can
only get fifteen minute phone calls, you know, and to
hear the problems that he's having, knowing that he wouldn't
be having these problems if I was there where I
should be, you know. But I was focused on getting
(20:45):
me home and proving my innocence. I wanted to get
back to my son.
Speaker 1 (20:49):
Tragically, you were stolen from him, let's call it what
it is, during his prime formative years. Now. By two
thousand and seven, you had been studying the law and
working on your appeal process. You petitioned the Michigan Court
of Appeals with an ineffective Assistance of Council claim based
on ken Lord's misunderstanding that the court would not provide
an expert because you had retained ken Lord, so almost
(21:11):
like they thought if you had the money for that,
you should have the money for this, and that eventually
became the basis of the filings that they've prepared with
the Michigan Innocence Clinic. But at that time it failed. Dave,
do you have any theories as to why that petition
didn't work out?
Speaker 2 (21:23):
So in order to prove ineffective assistance, you have to
prove that had the lawyer not made the mistake, there's
a reasonable probability there would have been a different outcome.
And normally what you would do is you would attach
affidavits from experts you would call at this hearing and
say send it back and have this evidentiary hearing in
the trial court and will show that had defensive lawyer
(21:46):
asked for an expert, he could have got a good
expert that would have changed his case, and a pel
lawyer just didn't do that.
Speaker 1 (21:52):
So not only had your trial attorney failed you, but
then appellet Council had as well. Terry, I understand at
this point you took an even more active role in
developing your own appeals.
Speaker 4 (22:02):
I was at the law library every day to learn
how I could prove my innocence. A real good friend
that I met while I was incarcerated, Demetrius Welsh showed
me more stuff as far as the legal process and
how to prepare legal briefs.
Speaker 1 (22:16):
Meanwhile, you were seeking parole as well, but the board
wanted what you couldn't give them.
Speaker 4 (22:21):
They wanted admission of guilt, you know. And that's the
thing is, I'm not given an admission of guilt for
something that I didn't do. I told them that I've
done everything that they wanted to do. I never caught
a ticket while I was incarcerated.
Speaker 1 (22:33):
Nonetheless, you were denied your first time around.
Speaker 4 (22:36):
They gave me an eighteenth month continuance because I didn't
take an AOP class, which is an Assault of Offenders program.
It was a stipulation for me to be parolled. So
you have to pass this interview to even get into
the program. You know, I'm telling them everything that happened,
and I'm telling him the whole story, and it's like,
you know, he's as well. It sounds to me like
you're in denial and you don't want to admit. You know,
(22:57):
how am I supposed to admit something that I didn't do?
So I had to file at grievance in order for
me to even get into this AOP class. I knew
that if I didn't do this class, I'm not going home.
They're just going to keep flopping me and flop me
and flop me till I do my fifteen years.
Speaker 1 (23:12):
So you did that program, but no matter what, the
goal was obviously exoneration because you were innocent. In fact,
you were innocent of a crime that never even happened.
So you had filed the Federal habeas in two thousand
and eight pro se while reaching out to innocence organizations
all over the country. But at that time you weren't
getting any help, as so many projects and clinics were
really focused on wins that they could almost call predictable
(23:35):
that could be earned with d NA cases, and Dave
as an appellate public defender, you had seen the need
for a different kind of innocence organization. So you connected
with someone who had served as a public defender and
eventually went on to be the Chief Justice of the
Michigan Supreme Court. But at this point she was the
dean for clinics at Michigan Law. And of course I'm
talking about Bridget McCormick.
Speaker 2 (23:53):
And we decided with her public defender background as a
trial lawyer and my public defender background as an appellate lawyer,
we'd make a pretty good team. And so we co
founded the Michigan Innocence Clinic as a non DNA innocence project,
which officially opened into its doors in January two thousand
and nine, just about the time Terry was finishing up
his sentence. He was still incarcerated at that point, and
(24:15):
so Terry was one of the first wave of people
to write us, and his was one of the very
first set of cases that we took.
Speaker 3 (24:22):
It was like, you know, here's your sign.
Speaker 4 (24:24):
This is what you've been waiting for, all this work
and everything that you've done. I finally have somebody that
I can give this to, that can you know, finish
this relay for me because I can't run this race
no more.
Speaker 3 (24:35):
There's no more that I can do.
Speaker 1 (24:37):
And by then you finally had a barol day coming
up October sixth, two thousand and nine, so you were
headed out the door. What was that day like for you? Terry?
Speaker 4 (24:46):
It went from how to trying to learn how to
live again, to be able to go to the bathroom
when I needed to go to the bathroom was a
wonderful thing.
Speaker 3 (24:54):
This is the simple things. Two ply toilet paper.
Speaker 4 (24:57):
Some hies catch up everything that we take for granted
every day. Was the stuff that I think that I
missed the most, you know, a late gas bill, you
know what I mean, the stuff that I sweated before.
I'm like, I look at now and I'm like, you know,
I mean this shit. Really this stressed me out before,
and I like laugh at that.
Speaker 1 (25:12):
And to finally get to be with your son again
after five long years.
Speaker 3 (25:17):
It was. It was awesome.
Speaker 4 (25:18):
In prison, you get like a hug when you see him,
in a hug when they leave. So to be able
to see him and honestly be able to talk to
him without discomfort was awesome.
Speaker 1 (25:30):
But let's not forget you were still on parole, which,
as we here described over and over again, even though
you're technically free, it's almost like just being in a
bigger prison.
Speaker 4 (25:38):
By parole, I legally couldn't see Cody because I was
not allowed to have contact with anybody under the age
of eighteen, So I had to get special permission from
my parole agent for me to even be able to
see my son. And then the worst part about it
was is my first year of parole, my granddaughter was
born and I could not be around her or see
(26:00):
her for the first year of her life. I've had
all these things taken away from me for nothing.
Speaker 1 (26:06):
And so clearing your name could not happen soon enough, Dave,
As I understand it, you all went into court as
his trial and appellate counsel should have done guns blazing
with four expert witnesses, including doctor John Plunkett, the forensic
pathologist who we mentioned earlier from his pioneering challenges to SBS.
Speaker 2 (26:25):
We knew that there was a big problem with these
shaking baby cases. We read the transcript of doctor Gilmer
Hill's testimony and it was way out there in our view.
Speaker 1 (26:36):
So these four experts said that doctor Gilmer Hill gave
the jury incorrect information regarding the biomechanics of infant head injury,
short distance falls, and also abusive shaking. Each of them
noted that criticisms of shaking baby syndrome existed at the
time of the trial or earlier, and that they would
have offered these same opinions if they had been asked
to testify back in two thousand and five. They also
(26:56):
said that injury biomechanics confirmed that when a child is
manual shaken, he or she will suffer a neck injury
or gripping style chest injuries well before sustaining a subdural
hematoma or retinal hemorrhage, which is the understanding that undermines
nearly just about every single SBS prosecution, maybe all of them.
They concluded that Brendan's injuries were consistent with a short
(27:18):
fall from the couch onto the coffee table or the floor,
and totally inconsistent with abuse of shaking. But proving innocence
is not enough, So the ineffective assistant claims were your
main arguments. But Terry had already raised the claims against
his trial attorney.
Speaker 2 (27:33):
There was obvious error here, both by the trial lawyer
and the appellate lawyer. So we filed a post conviction
motion in Michigan for appellate lawyer's failure to properly litigate
the trial lawyers in effectiveness. And so it goes back
to the same judge in front of whom Terry had
been convicted.
Speaker 1 (27:52):
That would be Judge A Dare again.
Speaker 2 (27:55):
And that judge just does not get it at all.
That judge says, you can't raise this because this is
the same issue that Terry raised on appeal, ineffective assistance
of council, and we said no, Terry raised ineffective assistance
a trial council on appeal. We're now raising ineffective assistance
of appellate lawyer for failing to file the motion to
(28:15):
have an evidentiary hearing.
Speaker 1 (28:16):
Right in which the appellate attorney could have presented experts
to support the challenges to SBS and Judge of Dare's
confusion over the fact that both trial and appellate council
had failed you, but only the claim against trial council
had been raised that kept justice from being done here
for over a decade. And so you appealed Dare's decision,
which involved a number of procedural hurdles that took the
(28:36):
better part of the next six years through both the
state and federal systems until you finally reached the Sixth Circuit.
Speaker 2 (28:43):
And we go to the Sixth Circuit and we had
a terrific student attorney, one of the law students working
on the case, and she wiped the floor with the
Assistant Attorney General who was arguing against the petition.
Speaker 1 (28:56):
And that terrific student attorney, by the way, was named
Meredith Collier.
Speaker 2 (29:00):
It was a legal mismatch. It likes you seldom a see.
And so the end result of that, all of that
was we finally emerge in twenty seventeen with a ruling
from the federal court that Terry received ineffective assistance of
a Pellet council.
Speaker 1 (29:14):
So you get to file a new appeal, basically starting
back in the trial court, so Judge of Dari's court,
but he had retired at this point, and you got
to present Terry's original ineffective assistance claim about ken Lord
not asking the court to provide funds to the defense
for an expert witness.
Speaker 2 (29:29):
And we end up in front of a successor judge
in Saint Clair County port Hereon, who now says, well,
you know, I'm just not so sure that Terry was
really poor, and so we ended up having to hold
a whole evidentiary hearing to establish that Terry was too
poor to afford an expert And what the judge ends
up finding is, all right, well, Terry is poor, but
(29:51):
we lose because the judge says it was a reasonable
decision for Ken lord not to ask for money because
Judge A Dare might have denied it. Wait what yeah,
the successor judges. But it was that when I was
a lawyer, if I'd asked for that, Judge A Dare
probably would have laughed me out of court. But that
ruling would be wrong.
Speaker 1 (30:10):
Adair's alleged tendency to rule against providing the funds for
an expert would have been unconstitutional anyway. I mean, this
is obstinence that defies all reason. And we've covered Saint
Clair County only one time before running into this same
kind of maddening logic defying issues. And of course I'm
talking about temwijen Kenzu and we're going to have that
(30:32):
incredible episode linked in the bio. So in order to
receive justice, you had to get out of Saint Clair County.
Speaker 2 (30:37):
I argue the case in the Michigan Streme Court, and finally,
in March of twenty twenty one, the Michigan Supreme Court
issues a short order concluding that Terry gets a new trial.
And there was this case is so clear that it's
not even worth writing an opinion, and so the Michigan
Streme Court rules in our favor Terry's conviction is vacated,
and then the prosecution in Saint Clair County then sat
(30:58):
around for months and months after March twenty twenty one,
and finally dismiss the charges in September twenty twenty one.
So that's the point where Terry officially becomes exonerated.
Speaker 4 (31:09):
I'm just I felt that I was blessed to discover
the University of Michigan Law School and this is clinic.
Without them, I don't know where I would be right now.
Speaker 1 (31:18):
So, after all you'd been through Terry, you'd think exoneration
would be the end of the road. Your life is
seemingly back to normal, But as we've learned, there's almost
always a chance for another shoe to drop.
Speaker 3 (31:30):
I have no felony on my record.
Speaker 4 (31:32):
I can have a passport, I can go anywhere I want,
I can have firearms. But here in Michigan, there's a
thing called the Michigan Central Registry, and it doesn't matter
if there was a crime or not. If somebody feels
that you did something, then they'll put you on this registry.
Speaker 1 (31:48):
That's the registry maintained by Children's Protective Services. Are people
who have either been convicted suspected or whose names were
even breathed in the general direction of child abuse, neglect,
sexual exploitation go on. And so when the folks at
Michigan Law tried to get your name removed rightfully, so
there was some unexpected confusion.
Speaker 4 (32:08):
So when they contact the Central Registry, they say, well,
which one are you trying to get removed, because there's
more than one. So Um reaches out to me and
they're like, you know, do you have any idea of
something happening back in ninety five? And I'm like no,
They're saying something about your child, and I goes, I
don't have a child. That says my only child is Cody.
(32:29):
That's the only child I've ever had, and I had custody.
Speaker 3 (32:31):
Of my child. So I'm kind of confused here.
Speaker 1 (32:34):
And this is the situation that we briefly discussed earlier
with the woman back in nineteen ninety five who claimed
you were the father when her child was rushed to
the hospital. So even with your exoneration, you of m
was still having difficulty removing you from this list and
undoing the damage.
Speaker 4 (32:50):
I'm still battling this. They told my son he can't
leave my twelve year old grandson with me unless there's
another adult here or he can get in trouble for that.
Speaker 3 (32:59):
I just want my life back, you know. I just
want to enjoy my time with my grandkids, right.
Speaker 1 (33:03):
And that's the real crime here that a guy who
literally did nothing wrong was a loving dad still after
all these years, is not allowed to babysit his own grandchildren.
But I know there are great people at U of
M who are working on getting you off that list,
and in fact, we're going to have a link in
the bio for anyone who wants to support their incredibly
important work. So now it's time for closing arguments, where
(33:26):
I thank you both for sharing this story, and now
I'm just going to turn my microphone off, kick back
in my chair and listen to whatever else you two
amazing humans want to say. So, Dave, why don't you
kick it off and then hand it over to Terry.
Speaker 2 (33:42):
I'm really glad we achieved justice for Terry. I'm really
sorry how long it took that he had to be
patient for more than twelve years of us fighting this
thing up and down the courts. It's a great example
of how resistant the courts are to doing justice these
cases I people are still in prison based on bogus
(34:03):
shaking baby syndrome testimony, and it's our goal to find
as many of them as we can and win them, because,
as Terry's case shows, these diagnoses that are made without
sound science and made with far, far too much certainty
wreck people's lives. Terry, you know, Terry's experience was awful,
(34:23):
but there are people who are serving life sentences because
the baby died, and we need to root out as
many of these cases as we can. We need to
really stop this kind of testimony from being given in
the first place.
Speaker 4 (34:35):
My closing ar events would be love your family, Love
your loved ones. If there's people that you are not
talking to because of different circumstances, I think you need
to try to right those wrongs. And I think it's
time for people to start mending bridges. It feels like
this whole COVID thing is, you know, it's been like
(34:57):
a bomb that blew us all apart and at least
are just floating all around and everybody's everybody's all about
themselves anymore. I remember when I was a kid growing up,
when there was times like this. This is when families
pulled together you know, when they were there for one another.
I think that we just need to love our kids
and teach our kids, you know, so they don't do
(35:17):
our wrongs and make mistakes that you know that we've
occurred in our life.
Speaker 1 (35:29):
Thank you for listening to Wrongful Conviction. I want to
thank our production team Connor hall Any, Chelsea Lea Robinson,
Jeff Clyburn, and Kevin Warris. The music in this production
was supplied by three time OSCAR nominated composer Jay Ralph.
Be sure to follow us on Instagram at Wrongful Conviction,
on Facebook at Wrongful Conviction podcast, and on Twitter at
(35:51):
wrong Conviction, as well as at Lava for Good. On
all three platforms, you can also follow me on both
TikTok and Instagram at it's Jason Ravel. Conviction is a
production of Lava for Good Podcasts and association with Signal
Company Number one
Hosts And Creators
Lauren Bright Pacheco
Maggie Freleng
Jason Flom
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