TAMMY MARQUARDT CASE: PART (2); "A MOTHER'S QUEST FOR JUSTICE;" JUSTICE REPORTER KIRK MAKIN; GLOBE AND MAIL; SMITH'S OPINION "FLATLY" DISMISSED;

“DR. SMITH'S TESTIMONY WAS CENTRAL TO THE PROSECUTION THEORY THAT THE APPLICANT WAS AN IMPECUNIOUS YOUNG MOTHER WITH LIMITED PARENTING AND COPING SKILLS,” SAYS THE BRIEF. “DR. SMITH ENTIRELY DISCOUNTED THE THEORY THAT KENNETH, WHO HAD BEEN TREATED FOR A NUMBER OF SEIZURES DURING HIS LIFE, MAY HAVE DIED DURING A SEIZURE.”

PROUDLY TOUTED BY HIS EMPLOYERS AT ONTARIO'S OFFICE OF THE CHIEF CORONER AS A WORLD-CLASS PEDIATRIC PATHOLOGIST, DR. SMITH'S VIEW CARRIED THE DAY. MS. MARQUARDT WAS CONVICTED OF SECOND-DEGREE MURDER AND SENTENCED TO LIFE IN PRISON WITH NO CHANCE OF PAROLE FOR 10 YEARS.

"HOWEVER, IN AN AFFIDAVIT FILED WITH HER BRIEF, NEWFOUNDLAND'S CHIEF MEDICAL EXAMINER, SIMON AVIS, FLATLY DISMISSES DR. SMITH'S CONCLUSION THAT KENNETH'S DEATH WAS A RESULT OF ASPHYXIA. THE ONLY LEGITIMATE FINDING FOR CAUSE OF DEATH, HE SAID, IS “UNDETERMINED.”

JUSTICE REPORTER KIRK MAKIN: GLOBE AND MAIL;"
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Justice Reporter Kirk Makin's story ran under the heading: "A mother's quest for justice," and the sub-heading: "Tammy Marquardt watched from jail as Charles Smith's pathology was discredited and other convictions were overturned. Now, finally, freedom is within reach."

"A caption under the photo by the Globe's Charla Jones, reads: "Tammy Marquardt is the only Canadian parent still behind bars due to the testimony of disgraced pathologist Charles Smith."

"KITCHENER, ONT. — The only parent in Canada still behind bars for a murder conviction as a result of testimony from disgraced pathologist Charles Smith finally has the wheels of justice grinding in her favour," Makin's story, published on Friday 13 February, began;

"From her prison cell, Tammy Marquardt has watched helplessly as Dr. Smith's once-sterling reputation was destroyed in case after case – several times granting freedom to a parent or caregiver convicted of killing a child. But never for her," the story continued;

"It has been 14 years since she passed up a plea bargain in order to tell a disbelieving jury she had not suffocated her two-year-old son, Kenneth. Now, the Supreme Court of Canada has granted permission to reopen her case.

“They say the truth will set you free,” Ms. Marquardt said, her green eyes flashing, as she sat in a sparsely furnished office at the Grand Valley Institution for Women in Kitchener, Ont. “Well, it didn't set me free; it gave me a life sentence. And right now, I'm still living with that life sentence.

“For years, I was told that I was in denial,” she said in her first-ever interview. “You're in here, so obviously you did something. I had to just hold my head up, knowing in my heart of hearts that I hadn't done anything. I know the truth – and it will come out some day. I have just held onto that.”

Ms. Marquardt's dark journey began on Oct. 9, 1993, when she called 911 in a panic to report that she had emerged from the shower to find Kenneth – who had a history of epileptic seizures – tangled in his bedclothes, struggling for breath and calling, “mommy.”

“According to all witnesses who entered the apartment – and thereafter, the hospital – the applicant was visibly and deeply upset,” says a brief filed with the Supreme Court on her behalf.

On the eve of her trial, her two lawyers gave her conflicting advice. “One kept saying, ‘There isn't enough evidence here to get you convicted.' The other was saying, ‘The Crown's offering you a plea of manslaughter for five years – take it!' I hadn't done anything,” Ms. Marquardt said. “Why should I take it?”

The Crown portrayed Ms. Marquardt as an overstressed mother on welfare who had called the Children's Aid Society several times to have Kenneth temporarily placed in a foster home, once expressing fears that she might hurt him.

“Dr. Smith's testimony was central to the prosecution theory that the applicant was an impecunious young mother with limited parenting and coping skills,” says the brief. “Dr. Smith entirely discounted the theory that Kenneth, who had been treated for a number of seizures during his life, may have died during a seizure.”

Proudly touted by his employers at Ontario's Office of the Chief Coroner as a world-class pediatric pathologist, Dr. Smith's view carried the day. Ms. Marquardt was convicted of second-degree murder and sentenced to life in prison with no chance of parole for 10 years.

However, in an affidavit filed with her brief, Newfoundland's Chief Medical Examiner, Simon Avis, flatly dismisses Dr. Smith's conclusion that Kenneth's death was a result of asphyxia. The only legitimate finding for cause of death, he said, is “undetermined.”

“To further define the asphyxia as a result of smothering or neck compression was wrong and inappropriate,” Dr. Avis said.

His view is corroborated by a Finnish pathologist, Pekka Saukko, who branded Dr. Smith's findings “illogical and completely against scientific-based reasoning.”

Ms. Marquardt said she does not regret her decision to reject the offer of a five-year sentence in return for pleading guilty to manslaughter. “I don't think I could have lived with myself,” she said. “They shouldn't have even offered it. So long as they get somebody – that's all that matters.”

James Lockyer, a lawyer with the Association in Defence of the Wrongly Convicted, calls Ms. Marquardt's case “as heart-wrenching as you can imagine.”

“It is an unfortunate side of the adversarial process that once you are convicted, the onus is on you to correct it.”

With the Crown unwilling to concede a wrongful conviction in Ms. Marquardt's case, Mr. Lockyer said it was imperative that he and co-counsel David Bayliss painstakingly assemble an ironclad case before they approached the courts.

Their next step will be to apply for bail. Then, they will ask the Ontario Court of Appeal to consider fresh evidence that could exonerate their client.

Ms. Marquardt gave birth to her second child, Keith, while on bail awaiting trial. She arrived in prison five months pregnant; her third son, Eric, was seized two days after he was born. Both boys were adopted by the same parents, whose identity remains a mystery to Ms. Marquardt.

She dreams that at the end of it all, she will see her two sons.

“The last time I heard of them was 1998, when the adoption was finalized,” Ms. Marquardt said. “I'm always thinking about them. I would like to see them again, but I don't want them to feel obligated. It's their choice.

“I know that one day they are going to want to hear the truth, to know what really happened to their older brother and what caused them to be adopted. I'm the only one who can really give them the truth. So, I have to stay above water.”

Her features grew steely as Ms. Marquardt spoke of Dr. Smith, who said in a public apology last year that while he did make serious mistakes in some of his cases, he never intended to cause any harm.

“As far as I'm personally concerned, he needs to be punished,” she said. “To me, it was like he was up there being God. It still makes me very angry. He needs to feel some of the stuff we've gone through. I don't want to see the man dead or anything, but he does need to do time.”

Ms. Marquardt was released on parole in 2005, but it was revoked after she began drinking heavily.

“It's impossible to turn back the clock of time and wipe away the nightmares, pain and tragic losses that 14 years of imprisonment have dealt Tammy,” said Win Wahrer, a spokesman for the Association in Defence of the Wrongly Convicted.

Ms. Marquardt said she tries not to think about being exonerated. “Part of me is scared to look that far ahead,” she said. “It's just overwhelming. The truth is finally going to be out there. I just wish it didn't take so long.

“If they still had capital punishment, I would be dead,” she added. “Thank God Canada doesn't have the death penalty any more.”

Harold Levy...hlevy15@gmail.com;