TAMMY MARQUARDT CASE: (PART 11); A POWERFUL EDITORIAL PERSPECTIVE; THE ORANGEVILLE CITIZEN;

"ANY READING OF THE APPEAL COURT'S JUDGMENT MUST LEAD THE READER TO AN INESCAPABLE CONCLUSION THAT EVEN FOUR YEARS AFTER HIS TESTIMONY, THE WORD OF CHARLES SMITH WAS GOSPEL IN OUR CRIMINAL JUSTICE SYSTEM.

YET TODAY, WE DOUBT THERE IS ANY REAL MEDICAL EXPERT WHO WOULD SUPPORT DR. SMITH'S CONCLUSION THAT THE CHILD, KENNETH WYNNE MARQUARDT, WAS A VICTIM OF FOUL PLAY.

ALL THAT'S REALLY KNOWN IS THAT HE HAD A HISTORY OF EPILEPTIC SEIZURES AND THAT SIX PATHOLOGISTS WHO HAVE EXAMINED THE MEDICAL EVIDENCE HAVE ALL REJECTED THE SMITH FINDINGS.

ONE IRONY IN THE MARQUARDT CASE IS THAT ONE OF THE THREE APPEAL COURT JUDGES (WHO TURNED DOWN MARQUARDT'S APPEAL) WAS JUSTICE STEPHEN GOUDGE, WHO 10 YEARS LATER FOUND HIMSELF CONDUCTING AN INQUIRY INTO DR. SMITH'S ROLE IN THE RASH OF WRONGFUL CRIMINAL CONVICTIONS THAT FOLLOWED INFANT AND CHILD DEATHS."

EDITORIAL: THE ORANGEVILLE CITIZEN;

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The Orangeville Citizen editorial, dated 19 March, 2009, runs under the heading "Marquardt case shows potency of 'expert' testimony."

"If there's any doubt that Tammy Marquardt should be given a second chance to appeal her second degree murder conviction in the deaths of her two-year-old son, it's surely removed if you read the result of her first appeal," the editorial begins;

"In January 1998, four years after she was convicted by a Toronto jury, three judges of the Ontario Court of Appeal took only six days to dispose of the appeal, finding no merit in any of the grounds raised by Ms. Marquardt's counsel, Toronto lawyer David Harris," the editorial continues;

"In fact, the only issue on which they asked Crown counsel Susan Reid to respond was the trial judge's directions to the jury on manslaughter, and the only other grounds for appeal raised by Mr. Harris were the judge's instruction to the jury on reasonable doubt and whether an adverse inference could be drawn from the failure of the defence at trial to confront a Crown witness.

Nowhere in the appeal court's brief reasons is there any mention whatsoever of the role played by the Crown's expert witness, Dr. Charles Smith.

In fact, all the court said about it was this: "It was the theory of the Crown that the appellant intentionally caused the child's death by suffocating him. The expert evidence indicated that the breathing would have to be obstructed for one to two minutes to cause the death."

As a result, Ms. Marquardt, now 37, has spent 14 years of a life sentence in jail and lost forever the custody of her two younger sons.

Any reading of the appeal court's judgment must lead the reader to an inescapable conclusion that even four years after his testimony, the word of Charles Smith was gospel in our criminal justice system.

Yet today, we doubt there is any real medical expert who would support Dr. Smith's conclusion that the child, Kenneth Wynne Marquardt, was a victim of foul play.

All that's really known is that he had a history of epileptic seizures and that six pathologists who have examined the medical evidence have all rejected the Smith findings.

One irony in the Marquardt case is that one of the three appeal court judges was Justice Stephen Goudge, who 10 years later found himself conducting an inquiry into Dr. Smith's role in the rash of wrongful criminal convictions that followed infant and child deaths.

The Marquardt case closely resembles that of William Mullins-Johnson, the Sault Ste. Marie man who spent 12 years in prison after being wrongly convicted of murdering his four-yearold niece on the basis of Dr. Smith's testimony.

Last Thursday, Ms. Marquardt finally won her freedom when the Crown consented her release to a Toronto half-way house pending a Supreme Court of Canada decision on a bid by lawyer James Lockyer for a fresh appeal.

In the circumstances, there should be no doubt that the request should be granted, or that the appeal should be allowed without the normal requirement for a new trial.

After all, we now know something that her jury was never told — that Ms. Marquardt had turned down a Crown offer of a five-year sentence if she would avoid the murder trial by pleading guilty to manslaughter. (She would have then been eligible for parole after 20 months in jail and day parole after 10 months.) She now says she rejected the plea bargain only because she knew she had no role in her son's death.

If nothing else, this case demonstrates the need for changes in our laws that will make it easier for those who are wrongfully convicted to achieve justice.

After all, the sad fact of the matter is that although Dr. Smith's expertise has been questioned for close to a decade, victims like Ms. Marquardt and Ms. Mullins-Johnson have remained in jail and would still be there were it not for the tireless efforts of lawyers like Mr. Lockyer and the Association in Defence of the Wrongly Convicted.

As we see it, the Criminal Code should permit applications to provincial appellate courts for new trials whenever new evidence arises that a judge of that court sees as making it more likely than not that the triers of fact at the new trial would have a reasonable doubt as to guilt.

Although such a change would certainly mean more work for appellate judges, as well as more retrials, it would surely be preferable to seeing more innocent men and women jailed while the current cumbersome procedures are followed.

One need only recall the many years David Milgaard's mother had to fight to have her son exonerated, and how much more difficult it would have been for both Mr. Milgaard and Guy Paul Morin to establish their innocence had it not been for the DNA evidence that cleared them.

As for Ms. Marquardt, the next challenge she will undoubtedly face will be to find some way to develop a relationship with her other sons, Keith, now 14, and Eric, now 12, who was born after she went to prison. Both were seized by child welfare officials and put up for adoption."

Harold Levy...hlevy15@gmail.com;