Prosecutors have conceded that Marco Trotta's conviction for second-degree murder cannot stand in light of fresh evidence that Dr.Charles Smith's opinion that various injuries inflicted on 8-month old Paolo were linked to his death on May 29, 1993 were linked to his death was utterly flawed.
But the Supreme Court is struggling with the issue of whether to allow convictions on lesser and included offences to stand or to send them back for trial before a new jury.
Trotta was released from prison in May on the basis of the fresh evidence after serving nine years behind bars on his 1998 murder conviction.
The dilemma is well captured by Globe and Mail reporter Kirk Makin in report today on Friday's hearing, under the heading, "Bad autopsy shouldn't alter verdict, court told."
"Horrendous abuse that an eight-month-old boy suffered at the hands of his father, Marco Trotta, was so obvious that a botched autopsy conducted on the child should be
overlooked, the Supreme Court of Canada was told Friday" Makins's story begins.
"Ontario prosecutor Lucy Cecchetto conceded that, while disgraced pathologist Charles Smith made significant errors in the case, a jury had ample other evidence to conclude that baby Paolo was killed by his father.
“What is clear is that there was a lifetime of abuse,” Ms. Cecchetto said. “Bruising had been noted. Bite marks had been noted. Almost every person who came into contact with him was concerned.… On all the facts, this was an exceptionally strong case for murder.”
However, lawyers for Mr. Trotta and his wife, Anisa, argued that by misidentifying or fabricating injuries – and then overstating his evidence at the Trotta trial – Dr. Smith irredeemably poisoned the entire proceeding.
“It would be unfair to allow the Crown to take advantage of a trial that was really a miscarriage of justice as a whole,” lawyer James Lockyer said. “Really, we should start again and give them a proper trial on proper evidence on all counts.” ...
Mr. Trotta has appealed his convictions and 15-year sentence for second-degree murder, aggravated assault and assault causing bodily harm.
Ms. Trotta has appealed convictions for criminal negligence causing death and failing to provide her son with the necessities of life.
After several years of building doubts surrounding the accuracy of Dr. Smith's autopsy findings in child deaths, the Ontario government called an inquiry last spring to look into 20 potentially false charges or convictions.
In a handful of these cases, parents of deceased children have already been exonerated in their deaths. The Trotta case represents the flip side – cases where the degree of culpability of the individuals charged is murky. Authorities fear that in many of these cases, the Smith factor could effectively result in something akin to a wrongful acquittal.
Several judges Friday expressed discomfort at having to speculate which of the various convictions registered against the Trottas are validated by other, untainted evidence.
Mr. Lockyer and co-counsel Michael Lomer warned that it would be folly to simply lop off the murder conviction and keep the other convictions intact. They said the jury could not have helped taking Dr. Smith's findings into account each time they considered a charge.
“It has to have a ripple effect,” Mr. Justice Ian Binnie agreed.
Mr. Lockyer said Dr. Smith's “hugely impressive” credentials would inevitably have captivated the jury, and that his florid language and “highly unprofessional, highly prejudicial” conclusions had to have coloured their analysis of all the charges.
Mr. Lockyer and Mr. Lomer said that while there was sufficient evidence of ongoing abuse for a jury to potentially convict their clients of some of the lesser charges, the Supreme Court should not attempt to decide the question.
“We don't dispute that there is evidence to reach that conclusion, but whether it should be reached is another question,” Mr. Lockyer said. “That is the reason to send it back to be retried by a jury – not for this court to essentially put itself in a jury's shoes.”
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