PUBLISHER'S NOTE: Guilty plea series: Part 4; Richard Brant: The Innocence Project has demonstrated a compelling need to expose the disturbing number of convictions in America attributed to guilty pleas rendered by innocent people in America. However, the problem of false guilty pleas is is common to many other jurisdictions, including Ontario, where I reside. I would like to make my own contribution to the Innocence Project's campaign, by running a series of posts taken from this Blog and elsewhere, which vividly illustrates the point. (Many of the posts were based on reports by my friend and colleague the late Tracey Tyler. the Toronto Star's talented legal affairs reporter for many years, until her untimely death. She had no patience for miscarriages of justice.) A common factor in many of the cases in this series is the presence of former doctor Charles Smith, the namesake of this Blog. In each case, the defence lawyer recommended a guilty plea to a lesser offence in order to avoid the ramifications of a conviction on the more serious charge - almost guaranteed by the now notorious former doctor's involvement in the case - in spite of the client's protests of innocence.
Harold Levy: Publisher; The Charles Smith Blog;
Conviction quashed in case involving disgraced pathologist Charles Smith
The Ontario Court of Appeal has quashed the aggravated assault conviction of a man who pathologist Charles Smith said shook his baby to death.
Richard Brant outside the Ontario Court of Appeal Wednesday, May 4, 2011 after his aggravated assault conviction relating to the death of his 2-month-old son Dustin was overturned. (LUCAS OLENIUK / TORONTO STAR)
"Having been wrongly convicted for the death of his son — then jailed, shunned and driven out of Ontario — Richard Brant is one of the more visible victims of pathologist Charles Smith’s incompetence.
But Mary Farrell, the child’s mother, also paid a heavy price for Brant’s 1993 conviction and her belief in his innocence.
Her two-year-old daughter was taken away from her and Farrell battled her own mother for custody, making for a relationship that remained strained until the elder woman’s death last December.
“We lost our son,” said Farrell, 40. Yet police “treated us like criminals. We were loving young parents.”
The former couple, who hadn’t seen each other in 16 years, was reunited in Toronto Wednesday before the Ontario Court of Appeal quashed Brant’s conviction for aggravated assault in connection with the death of their two-month-old son, Dustin.
Brant was out for a walk with the child in Belleville on Nov. 17, 1992 when he bumped into a distant relative on the street and lifted the plastic rain cover on a stroller to show off his newborn.
What he found was the boy in distress, with what appeared to be red foam around his mouth.
A police officer who witnessed the incident from his cruiser at a nearby stoplight confirmed that Brant appeared genuinely surprised and upset by the condition of the child, who died in hospital two days later.
Yet investigators suspected he was responsible and that drops of red liquid found in the family’s home were blood. They turned out to be cough syrup.
Undeterred, police brought in the heavy artillery in the form of Smith, who concluded Dustin died of blunt force trauma to the head, likely caused by shaking.
But fresh evidence from forensic experts who recently reviewed the autopsy findings shows there is nothing to support Smith’s opinion, the court was told on Wednesday.
Instead, the evidence suggests Dustin died of natural causes, likely pneumonia, the same conclusion reached by the neuropathologist who performed the autopsy before Smith arrived on the scene.
It was, said Justice Marc Rosenberg, a “miscarriage of justice.”
“It lifts a great weight off my shoulder,” Brant, 38, said Wednesday. “This just destroyed me.”
Brant said after serving a six-month jail sentence, he was shunned by neighbours on the Tyendinaga reserve, near Belleville.
The experience shattered his relationship with Farrell, despite her belief in his innocence. He moved to Montreal with a new girlfriend, then to Moncton to start a new life.
Later convicted of a robbery, he was paroled two days ago.
Brant said he felt pressured to plead guilty to a reduced charge in connection with Dustin's death after his trial lawyer told him Smith’s opinions were considered unassailable and he could get up to 15 years if convicted of manslaughter, the original charge.
That was the choice facing many parents who were victims of Smith’s mistakes, James Lockyer, Brant’s appeal lawyer, told the court.
A review by the Office of the Chief Coroner found Smith botched 20 child autopsies. Prior to a 2008 public inquiry into the debacle, four people had charges withdrawn or were otherwise exonerated. Since the inquiry, convictions have been quashed in five cases. Others are before the courts.
Brant said learning Smith had been proven wrong in his case left him angry, happy and confused about how such a highly-regarded “professional” could mess up so badly.
“That’s not a little wee mistake,” he said Wednesday. “That’s a life mistake. It (pertains) to lives he’s destroyed.”
See Innocence Canada summary of this case by Sarah Harland-Logan at the link below...Richard knew that he was innocent; but he also knew that he would face a stiff sentence if he were found guilty of manslaughter. Charles Smith would be the prosecution’s star witness, and Richard’s lawyer had told him that Smith was viewed as “the king” of his field. His compelling testimony could easily lead to a conviction, and Richard could spend up to fifteen years in jail. In addition, Richard and Mary had separated, unable to bear the tragedy of Dustin’s death together; and Richard’s new partner, Lynne, was expecting a baby. Having just lost his first child, he could not bear the thought of not being part of this new baby’s life. However, Richard had another option. After his preliminary hearing – where he had realized just “how much trouble … [he] was in” – the Crown prosecutor offered him a plea bargain. If Richard agreed to plead guilty to aggravated assault, then he could expect to spend only six to nine months in jail. Richard’s lawyer urged him to accept this offer. Richard agonized over what to do. On April 21, 1995, Richard pled guilty to aggravated assault. He was sentenced to six months in prison. After his release, Richard was ostracized by members of his community, who believed that he had killed his newborn baby. Richard soon moved to Montreal, and then to Moncton, hoping to start a new life. Pleading guilty to a crime he did not commit was the hardest decision of Richard’s life. Years later, he would file an affidavit – part of his effort to clear his name – in which he explained that “I did nothing to cause Dustin’s death and I still grieve for him. I never did anything to hurt my son…. I did not cause Dustin’s death or assault him in any way, and pled guilty because I felt I had no other realistic option.”
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/