The first degree murder charge stems from a disastrous incident in Hollywood, Florida 37 years ago when five-month-old Benjamin Dowling suffered severe brain damage while in custody a babysitter.
This babysitter, Terry Delores McKirchy, told police that baby Benjamin fell from a sofa and hit his head. However, doctors determined that the boy was shaken so hard that his brain hemorrhaged.
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McKirchy ultimately made a clear plea of attempted murder and aggravated bodily harm of a child in the 1985 case, which investigators said was a case of Shaken Baby Syndrome.
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The babysitter was sentenced to three years probation and 60 days in prison, while Benjamin lived the rest of his life with severe mental and physical disabilities until his death in 2019.
McKirchy, 59, now faces a second trial for the decades-old incident, after a Broward County grand jury charged her with first degree murder in Dowling’s death.
“The time between the injuries sustained and the death of the victim was taken into account by forensic experts who performed the autopsy and decided that the death was directly caused by the 1984 injuries,” said prosecutors in a statement. “This case went to the grand jury, who determined it was a homicide. “
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McKirchy was arrested in her hometown of Sugar Land, Texas earlier this month and is set to stand trial in Florida, where she faces a life sentence if convicted. She waived the extradition, the Broward state attorney’s office said. We don’t know if she has a lawyer.
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McKirchy told the Miami Herald in 1985 that she was innocent, but accepted the plea deal to put the case behind her.
“I know I didn’t. My conscience is clear. But I can’t cope with it anymore, ”McKirchy said at the time. “I am six months pregnant. You wouldn’t believe what this did to my family.
Prosecutor Barbara Mitchell, who made the plea deal at the time, said McKirchy’s light sentence would be “therapeutic.” However, she did not explain what that meant in a separate interview with the Herald in ’85.
Mitchell is still in the Broward County District Attorney’s Office, but she did not respond to various requests for comment.
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A person cannot be prosecuted twice for the same crime, but murder and attempted murder are different crimes, according to Bob Jarvis, professor of law at Nova Southeastern University.
“While the babysitter was tried years ago for attempted murder, she was never tried for murder,” Jarvis told the South Florida Sun-Sentinel, who first reported the arrest. . “So dual criminality does not apply to her situation and she can now be tried for murder. “
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Parents of the victim, Rae and Joe Dowling, say they want justice for their son after a life of struggle caused by this child custody incident.
“This devastating event led to a life of struggle and full-time care,” Dowling’s family wrote in his obituary.
“Benjamin never progressed in development beyond a 5½ month old baby. Benjamin has never crawled, completely overturned, never walked, never spoke, never fed himself, he never enjoyed a hamburger or an ice cream cone ”, declared parents in a statement released by prosecutors.
“Although he lived to be 35, the life we would have lived as a family has been forever changed. We cherish our time and memories with Benjamin, and we continue to support him with our belief that there should be justice for Benjamin.
The Dowlings said they knew something was wrong with their child when they picked him up at McKirchy’s in 1984. Doctors discovered the brain damage soon after.
Benjamin has undergone several painful surgeries during his life, including one to insert metal rods into his spine and another to connect a feeding tube to his stomach.
“Benjamin would never know how much he was loved and could never tell others about his love for them,” his family said. “Benjamin smiled when he was with his family.
“Although he was never able to verbalize anything, we think he knew who we were and that we were working hard to help him. “
–With files from The Associated Press