How Could You? Hall of Shame-Dale Young jr-Child Death UPDATED

This will be an archive of heinous actions by those involved in child welfare, foster care and adoption. We forewarn you that these are deeply disturbing stories that may involve sex abuse, murder, kidnapping and other horrendous actions.

From Russellville, Arkansas, foster parent Derek Benham is on trial this week for the May 5, 2008 death of Dale Young Jr., 5. We covered the lawsuit aspect of this case back in May 2011.

Case History

Derek Benham charged with foster son’s 2008 death [Today’s THV11 12/27/10 by Monika Rued] says, “After his foster child’s death, Benham told authorities that the boy awoke blue-lipped and later began gurgling and choking on a pink fluid coming out of his mouth. He told investigators he administered what Gibbons called at the time some unorthodox resuscitation methods.

An autopsy showed the boy suffered damage to his small intestine, liver and lungs.”

The article Derek Benham Timeline [KATV 12/29/10 by Jason Pederson] goes into more details.

Dale’s “parents used drugs, which led to violence, neglect and sometimes their incarceration.

Dale and his older brother and sister had already been in at least a half dozen foster homes in Yellville, Pottsville, Russellville and Mena before being placed in the newly opened home of Derek and Jennifer Benham in January of 2008.”

A doctor at Arkansas Children’s Hospital told police that “Dale was a victim of abuse. In the months that followed others would agree.

The state police investigator found “…physical abuse to Dale Young by his foster father, Derek Benham.”

A DHS investigator concluded that “Derek Benham physically abused DY on the day in question.”

Two years after Dale’s death, his grandparents wondered why no one had been charged.

“I would think David Gibbons (the prosecutor) would do something by now,” Richard Young, Dale’s grandfather, told us back in May.

Derek Benham refused to cooperate with police or prosecutors in the months following Dale’s death, but he did say on the day of the incident that he had tried to help a choking Dale by performing a modified Heimlich Maneuver…putting the boy’s abdomen against a counter top and pushing on his back…and that may have caused his internal injuries.

With no witnesses, prosecutor David Gibbons told us in may that even if he suspected that Benham was guilty of a crime, he didn’t feel he could prove it.

“I’ve got to prove that a. it is a homicide and then b. who caused the homicide,” Gibbons explained to us back in May.

So what changed? Benham’s ex-wife’s story.

Jennifer Benham told state police this year that last summer, when she was still married to Benham and more than a year after Dale’s death, he admitted to injuring the boy with his knee.

That was the missing information Gibbons needed to prosecute.

“It just hit a nerve and went all the way to my toes,” says Richard Young, describing how he reacted to news of an arrest. “I couldn’t believe that finally something happened.”

Attorney Switch March 2011

“In January, a circuit judge issued an order declaring William O. “Bill” James Jr. of the James Law Firm in Little Rock as the attorney of record for Derek Benham. Benham’s previous attorney was Russellville-based Robert Veach.”

“Benham’s ex-wife, Jennifer, who now goes by the last name Merkey, told investigators her former spouse confessed in July 2009 he had “hurt” Young, slamming the boy onto his knee. The Benhams’ marriage was dissolved in April 2010.

In January, James filed on Benham’s behalf a waiver of formal arraignment and asked the court to enter his plea of not guilty.

The case is currently in discovery, James said, adding a trial date has been set for July.

“I don’t think they are going to be able to show he did anything to this child to cause his death,” James said. “At best, you have a disgruntled wife who had contradicted herself from previous sworn testimony that he did something to the child, when she previously swore under oath that he would never — she had no knowledge he had done anything to hurt the child.”

James is no stranger to criminal defense law. He has been on the defense teams of high-profile trials such as Gary Dunn and Curtis Vance.

In 2008, Dunn, a Dover resident, was arrested and charged in connection with the 2005 bludgeoning death of 19-year-old Nona Dirksmeyer. He has been tried twice for the crime — in April 2010 and January 2011 — and both trials ended with hung juries. James was on his defense team during both trials. A third trial is scheduled for August.

James was also the defense attorney for Vance, who in February was tried in Lee County on a charge of rape. A mistrial was declared after a hung jury. Vance was convicted in 2009 of killing Little Rock television news anchorwoman Anne Pressly and is currently serving life in prison without parole for that charge. James was not listed as attorney of record for Vance during his trial for Pressly’s murder.”

New attorney for Benham [Write for Arkansas 3/14/11 by Whitney Snipes]

Current Trial

“A jury will work this week [of December 12, 2011] to determine if the boy’s new foster father was responsible for his death.”

“There is no credible evidence that Derek did anything to this child to cause his death,” says Little Rock defense attorney Bill James. “There is going to be testimony from his ex-wife that says that he admitted it at some point that the facts and situation leading from his supposed confession up to the point where she finally comes forward and tells the police that are going to make her sound completely incredible.”

It took most of the day Monday to seat the jury.

Many were dismissed because they knew children who had been abused, were the victim of abuse themselves, or had been a crime victim.

“What we’re looking for in a juror is we’re looking for an impartial juror who is receptive to the case who has no prior involvement with the case and who is comfortable making a decision based on the law and the facts that come off the stand,” explained prosecutor David Gibbons.

Prosecutor Gibbons expects this trial will last three days.

He says he has much more than just the testimony of Benham’s ex-wife to support the first degree murder charge he has filed.

By week’s end we will know if the jury agrees.”

Former Foster Father on Trial [KATV 12/12/11 by Jason Pederson]

Update: A jury deliberated for five hours before finding Derek Benham not guilty of homicide, manslaughter OR negligent homicide.

“Derek Benham left a Russellville courtroom around 6:30 Wednesday evening with his mother and father immediately after a nine woman, three man jury found him not guilty of first degree murder.

“We’re certainly sorry about Dale’s death but finding Derek guilty would have just made it a further tragedy,” said defense attorney Bill James as he celebrated the verdict with Benham and his supporters. Dale Young Jr. died in May of 2008 after suffering a major abdominal injury. The boy was in the care of Derek Benham when he became ill and suspicion soon fell on the foster father.

But prosecutor David Gibbons didn’t bring a charge until more than two years later when Jennifer Merkey…Benham’s ex-wife…came forward with a story that Benham had confessed to her more than a year after the boy’s death that he hurt Dale. That story contradicted previous statements Merkey had given to police and DHS investigators. Benham’s defense attorneys questioned her credibility and motives and portrayed Benham as a caring foster father who is unable, just like everyone else, to explain how dale was injured.

“I’m feeling justice wasn’t done,” said Dale Young, biological father of Dale Young Jr. “And now I’m going to be hurting the rest of my life. And this is something I’ve got to deal with every day.”

“We put on the best case that we could,” said prosecutor David Gibbons after the verdict. “The jury was obviously attentive. They obviously gave it a lot of consideration. Certainly I’m personally disappointed but I’m appreciative of their efforts and you know that is our system. That’s the way it works.”

Former Foster Father Found Not Guilty
[KATV 12/14/11 by Jason Pederson]

“They got caught in their own lies,” Benham said during a telephone call in the courtroom immediately after the verdict was read before being admonished by his lawyer.

“We’re very happy, and happy for the Benham family,” Benham’s attorney, William O. “Bill” James said after the verdict was read. He added he was sorry for the loss of Young, but said “finding Derek guilty would have made it a further tragedy.”

James said Benham, who did not testify in his own defense, would have told the jury the same thing he told police in the interviews following Young’s May 5, 2008, collapse.

“My attorney said it best,” was the only comment offered by Benham before he left the courthouse. ”

Testimony

“The proceedings began with testimony by associate medical examiner Frank Peretti, who recited the various injuries to the boy he observed during the autopsy — including contusions to both lungs, a laceration to the left lung, a laceration to the liver, necropsy of part of the small intestine and damage to the pancreas.

Peretti testified there was no evidence to show any injuries had occurred outside the window of around 8-24 hours before Young was initially presented to medical personnel on May 5, 2008.

He told Prosecuting Attorney David Gibbons the boy’s injuries “very well could have” all been caused by a single incidence of blunt force trauma. He also acknowledged, however, to James the injuries to Young’s lungs could have come later, during CPR efforts.

After Peretti’s testimony, Gibbons rested his case, and James also rested the defense’s case without calling any further witnesses.”

“Prosecution’s closing statements

Evidence in the case, according to Gibbons, came largely from Young himself. He told the jurors, “for the most part, the injuries told the tale.”

He reviewed the injuries, the contusions — or bruises — and laceration on Young’s lungs; the laceration on his liver, located behind the lungs; the injury to the pancreas; and damage and lacerations to the boy’s intestines.

He noted the damaged organs and “how centered they are and where they are.”

Although Peretti’s report separated the injuries to the intestinal tract and to the lungs — one based on blunt force trauma and another set sustained during CPR, respectively — Gibbons said that finding was based on information received by Benham.

“This information came from one person — the defendant,” Gibbons said.

Gibbons noted testimony from two witnesses indicating Benham did not tell anyone about performing a modified Heimlich maneuver on the boy until Young was transported to Arkansas Children’s Hospital in Little Rock. He said Benham told Yvonne Chronister, a Department of Human Services (DHS) employee, about the maneuver first, and that was not until after Young was out of surgery.
And although witnesses testified Benham said he performed the maneuver around the time he called 911 and was trying to resuscitate the boy, Gibbons said there is nothing to show one injury was older than another.

Peretti had testified, Gibbons noted, all of Young’s injuries could be consistent with Benham bending the boy over a counter and pushing him.

Gibbons said there was no evidence Young was sick Sunday night, only that he did not eat much dinner. He said Jennifer Merkey testified Benham was agitated the night of May 4, 2008, because a conversation with his previous wife, Rebecca Shafer, about their biological daughter coming home with lice and Young exposing himself to their daughter got Benham agitated and “up in the air.”

While Gibbons acknowledged the defense had raised questions about Merkey’s reliability, he also noted Shafer testified she was, in fact, upset the evening of May 4, 2008, and had a conversation with Benham and Merkey.

If Merkey was telling the truth about Benham being agitated, Gibbons said she could also be believed when she said Benham and Young were downstairs later that evening and woke her up. Merkey testified she yelled at them to go to bed, and that when Young came up the stairs, he was crying.

Gibbons said if Benham had done something to harm Young that evening, it would fall “well within” the time frame Peretti and other medical professionals estimated the injury occurred. He noted that Benham was the one who said he had performed a modified Heimlich maneuver on the boy; Gibbons said the only question of fact was when the incident occurred.

“It did not happen when 911 was called,” he said. “That is a cover story.”

Defense’s closing statements

James, who complimented the jury’s attentiveness and said they “appear to take more notes than any jury I’ve ever had,” painted Young’s death as a tragic accident.

He also contrasted Gibbons’ proposal that the injuries provided ample evidence and said the case against Benham consisted of nothing more than the “accusations of a spurned woman.”

James said Benham and Merkey were doing well enough as foster parents that from the time they entered the program in January 2008 to the time Young died in May 2008, DHS had placed five foster children in their home.
He referred to previous statements by Merkey where she characterized Benham and Young as “buddies” and “two peas in a pod.”

James noted that Merkey testified it was not uncommon for Benham and Young to be downstairs together in the evenings, and Young had cried before after being told to go to bed. He also noted Young had never indicated Benham had ever hurt him.

“And what do we hear about Derek in the end?” James asked. “He was just another kid in the house.”

The day before Young went into cardio pulmonary arrest, prompting Benham to call 911, Benham took Young and another foster child, Young’s 9-year-old brother, to play on the playground at Old Post Park.

James mentioned testimony from medical professionals, who said Young could have sustained the injuries that caused his death without ever knowing and without an adult who was watching knowing.

He referred to evidence collected from both Merkey’s testimony and statements made by Benham that Young had little appetite and on May 4, 2008, the night before he was taken to the hospital.

“I don’t know why we have to pretend it didn’t happen,” James said, adding Young had to be “practically drag(ged)” out of bed the morning of May 5, 2008.

James also noted Benham took Young with him to work that morning for a few hours.

“Do you think he wants to take him to work and show him off” if Benham caused the boy’s injuries, James asked. In fact, testimony from emergency responders and others who spoke to Benham after the boy collapsed indicated Benham acted “appropriately” as a father should in such circumstances.

James also questioned the reliability of Merkey’s testimony. He questioned why she waited so long to come forward, and suggested she may have done so after a TV station ran a story about Young’s death.

He noted the timeline of events that occurred between the July 2009 date when Merkey said Benham confessed to harming Young and the time she came forward and made a statement to police in May 2010.

Events that occurred during that time frame included Merkey and Benham’s separation, Merkey filing for divorce, Merkey testifying during a DHS hearing she did not have reason to believe Benham had harmed Young, all in November 2009; Merkey filing two harassment complaints against Benham, one in February 2010 and one in March 2010; divorce proceedings, during which Benham wanted to change the terms of the divorce agreement; and the finalization of the couple’s divorce in April 2010.

James questioned why Merkey did not use Benham’s alleged confession during any of the divorce proceedings, especially when Benham wanted to change the terms of the agreement.

He also took exception to a comment Merkey made in a statement to police in 2010 when she said she “always” put the children first “every time.” He said she did not put the children first if she did go forward with her claim in 2009, when she said Benham first told her he harmed Young.

Although Merkey testified Tuesday one of the reasons she went to police with her statement was because of no-contact order against Benham was issued, James noted he and Gibbons entered an agreement of fact Wednesday morning that the no-contact order was issued in October 2010.
Another part of Merkey’s testimony James took issue with during his closing statements, as he did during cross examination of Merkey on Tuesday, was her insistence she never used the term “knee” when describing what Benham showed her in July 2009. He reminded the jury Shafer testified Merkey had specifically used her knee when reenacting the scene for her.

James said there was “no reason” to think Benham did not administer CPR to Young and that “it doesn’t make sense” to think the injuries to Young’s lungs occurred at the same time as the other injuries. He said it was implausible to think Young could have suffered the contusions to his lungs and not felt it, though he could have sustained the other injuries and not be aware of them.

“This is about Dale,” James said. “It’s about death, but it’s about stopping this tragedy. … That’s where this nightmare started for Derek. This is where it ends.”

Deliberations

After closing statements, Pearson said the jury would take a lunch hour before beginning deliberations at about 1:45 p.m. They deliberated until after 6:30 Wednesday, when they returned with the verdict of not guilty. In lieu of the charge of first-degree murder, the jury could have chosen to convict Benham of manslaughter or negligent homicide. ”
Benham acquitted
[The Courier 12/15/11 by Whitney Snipes]

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