A Texas woman who allegedly shook an infant in 1984 has been charged with his murder in Florida, where he died of a decades-old and life-changing brain injury at the age of 35.
The first-degree murder charge stems from a disastrous incident that happened in Hollywood, Fla., 37 years ago, when five-month-old Benjamin Dowling suffered major brain damage while in the care of a babysitter.
That babysitter, Terry Delores McKirchy, told police that baby Benjamin fell off a couch and hit his head. However, doctors determined that the boy had been shaken so hard that his brain hemorrhaged.
McKirchy ultimately pleaded no contest to attempted murder and aggravated battery of a child in the 1985 case, which investigators said was an instance of shaken baby syndrome.
The babysitter was sentenced to three years of probation and 60 days in jail, while Benjamin lived the rest of his life with severe mental and physical disabilities until he died in 2019.
McKirchy, 59, now faces a second reckoning for that decades-old incident, after a Broward County grand jury indicted her with first-degree murder in Dowling’s death.
“The passage of time between the injuries sustained and the death of the victim were considered by the forensic experts who conducted the autopsy and ruled the death was directly caused by the injuries from 1984,” prosecutors said in a statement. “This case was presented to the grand jury, which determined that this was a homicide.”
McKirchy was arrested in her hometown of Sugar Land, Texas earlier this month and is expected to stand trial in Florida, where she faces a possible life sentence if convicted. She has waived extradition, the Broward State Attorney’s Office said. It’s unclear if she has an attorney.
McKirchy told The Miami Herald in 1985 she was innocent, but accepted the plea deal to put the case behind her.
“I know I didn’t do it. My conscience is clear. But I can’t deal with it anymore,” McKirchy said at the time. “I’m six months pregnant. You wouldn’t believe what this has done to my family.”
Prosecutor Barbara Mitchell, who struck 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 with the Broward County prosecutor’s office, but she has not responded to various requests for comment.
A person cannot be prosecuted twice for the same crime, but murder and attempted murder are different crimes, according to Bob Jarvis, a law professor at Nova Southeastern University.
“While the babysitter was tried years ago for attempted murder, she has never been tried for murder,” Jarvis told the South Florida Sun-Sentinel, which first reported the arrest. “Thus, double jeopardy does not apply to her situation and she now can be tried for murder.”
The victim’s parents, Rae and Joe Dowling, say they want to see justice done for their son after a lifetime of struggle caused by that babysitting 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 infant. Benjamin never crawled, fully rolled over, walked, never talked, never fed himself, he never enjoyed a hamburger or an ice cream cone,” the parents said in a statement released by prosecutors.
“Although he lived to be 35 years old, the life we would have lived as a family was forever altered. We cherish our time with and memories of Benjamin, and we continue to support him through 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 from McKirchy’s home in 1984. Doctors discovered the brain injury a short time later.
Benjamin endured several painful surgeries over the course of 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 of his love for them,” his family said. “Benjamin did smile when he was around his family.
“Although he could never verbalize anything, we believe he knew who we were and that we were working hard to help him.”
—With files from the Associated Press