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FORT LAUDERDALE, Fla .– Babysitter Terry McKirchy received a light sentence 36 years ago after making an unmistakable plea to attempted murder for shaking 5-month-old Benjamin Dowling so severely that he suffered injuries permanent brain – weekends in prison for three months and three years probation.
But now McKirchy faces a life sentence after a Florida medical examiner said Dowling succumbed to these injuries when he died in 2019 at the age of 35 after living with severe disabilities. mental and physical.
A Broward County grand jury recently charged McKirchy, 59, with first degree murder and she is now jailed near her home in Sugar Land, Texas, awaiting her return to Florida. McKirchy, who previously denied harming the boy, has waived the extradition, the Broward state attorney’s office said. The South Florida SunSentinel first reported the arrest.
“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.”
It is not known whether McKirchy has a lawyer and Broward’s Public Defender’s Office, which represented her in the 1980s, did not immediately respond to a request for comment on Monday. McKirchy told the Miami Herald in 1985 that she was innocent, but accepted the plea deal to put the case behind her. Under the deal, she would only serve on weekends until the birth of her third child, and then she would be free.
“I know I didn’t. My conscience is clear. But I can’t take care of it anymore, ”McKirchy told the newspaper. “I am six months pregnant. You wouldn’t believe what this did to my family.
Benjamin’s parents Rae and Joe Dowling said their first son never made progress after his injuries, according to his family and others.
“Benjamin has never crawled, completely overturned, never walked, never spoke, never fed himself, he never enjoyed a hamburger or an ice cream cone, he never could never tell us when he was itchy or anything wrong, ”the couple said in a statement. . “When he cried in pain, we as families and caregivers had to guess what was wrong and hope that he could meet his need.”
They did not address McKirchy’s arrest in their statement and, through the state attorney’s office, declined interview requests.
The Dowling’s had been married for four years when Benjamin was born on January 13, 1984. The two Dowling’s were working, so they hired McKirchy, then 22, to keep him in his suburban Fort Lauderdale home.
Rae Dowling says that when she picked up Benjamin from McKirchy on July 3, 1984, she immediately knew something was wrong. His fists were clenched and his body limp. She rushed him to hospital, where doctors said he suffered from a brain hemorrhage due to strong shaking.
McKirchy has been charged with attempted murder and aggravated child abuse. The Dowlings told the Herald in 1985 they were stunned when District Attorney Barbara Mitchell told them about the plea deal McKirchy would receive. She was facing 12 to 17 years old.
Mitchell told the newspaper the phrase was “therapeutic,” but did not explain. Mitchell is still in the Broward DA’s office, but has not been made available for comment. Another prosecutor is handling the current case. Ryal Gaudiosi, then McKirchy’s public defender, called the sentence “fair under the circumstances”. He died in 2009.
David Weinstein, a Miami defense attorney and former prosecutor who is not involved in the case, said it was difficult to know what happened in the 1985 agreement. Maybe it was witnesses were not available or the available medical evidence was not strong. Prosecutors may have felt that McKirchy’s pregnancy would make it difficult to get a conviction.
Today, he said, prosecutors may think a homicide case is stronger because medical and scientific evidence may have progressed. He said McKirchy’s attorneys could argue that the lapse of time would prevent them from mounting an adequate defense, as witnesses may have died and memories fade.
“There are a lot of unanswered questions,” he said.
The Dowlings said Benjamin had undergone several surgeries during his life, including metal rods placed along his spine. He fed by tube and attended drug rehabilitation schools and special schools. The Dowling’s had two more children and would take Benjamin to their games and shows. The family moved to the Gulf Coast of Florida in the late 1990s. He passed away at their home on September 16, 2019.
“Benjamin would never know how much he was loved and could never tell others his love for them,” they said. “Benjamin would smile when he was with his family, although he could never verbalize anything, we think he knew who we were and that we were working hard to help him.”
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