"Dr. Charles Smith was the Crown’s star witness whose reputation preceded him – “everyone was talking about him”. His opinions seemed unassailable, and he had the support of the Suspected Child Abuse and Neglect Unit (SCAN), at least two of whom were to be Crown witnesses."
Affidavit of lawyer Alison Craig: Filed in Ontario Court of Appeal;
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Many insights into the wrongful conviction of Maria Shepherd - and the role played in it by Dr. Charles Randal Smith - can be gleaned from the affidavit filed in the Ontario Court of Appeal by Lawyer Alison Craig, an associate of Lockyer, Campbell, Posner, who, along with several other lawyers, did a superlative job of representing Ms. Shepherd and other victims of miscarriages of justice at the Goudge Inquiry; Because this affidavit is extremely lengthy I will be publishing selected sections;
Today: The Applicant’s Affidavit and Decision to Plead Guilty:
"The Applicant has sworn an affidavit on this Application. In it, she explains the emotional impact on her of losing Kasandra, followed by her arrest for manslaughter. She explains the circumstances that led to her decision to plead guilty, and her perception that Dr. Smith’s evidence amounted to scientific proof that she had caused Kasandra’s death.
When she was released on bail, the Applicant lost custody of her children, and they were placed in the care of her mother. She felt extremely guilty because of the financial and emotional burden she was placing on her mother, who was aging and whose health was deteriorating. In June, 1992, the Applicant learned that she was pregnant with her youngest daughter, Chanel. She was told by Mr. Wiley that the Crown would agree to a sentence of two years less a day if she pled guilty, that she would be able to serve the time at the Vanier Institution, a minimum security setting, and that she could conceivably be granted parole prior to the birth of her daughter. She was further advised that if she pled guilty (thereby showing remorse), the Children’s Aid Society would in due course likely agree that she should regain custody of all her children. She realized that if convicted after trial, she faced a substantial penitentiary sentence and might never regain custody of her children. The decisive evidence of Dr. Smith, coupled with her desire to get her children back, left her feeling she had no realistic alternative but to plead guilty to manslaughter. Thereafter, she decided that she would tell the authorities that, true or not, she had hit Kasandra the one time.
Meetings with Mr. Tom Wiley, defence counsel for the Applicant at her trial:
Mr. Lockyer has met with Mr. Tom Wiley, defence counsel for the Applicant at her trial on two occasions, the more recent meeting being on April 15, 2009. Mr. Wiley has not reviewed the contents of the Applicant’s file (which comes in several boxes) but has provided his best memory of his defence of the Applicant. He advises that his memories may not always be entirely reliable.
Mr. Wiley sought an expert opinion from Dr. Fred Jaffe, a forensic pathologist. Dr. Jaffe only reported verbally to Mr. Wiley, and did not prepare a written report. He did not challenge any of the fundamental features of Dr. Smith’s findings. He went to the Applicant’s home, and viewed the bedroom to see whether he could find an object onto which Kasandra might have fallen that could explain the injury to the inside of her scalp. He was looking for something with which her head may have impacted that was of similar radius and configuration to the injury. He was not successful “one way or the other” in this regard.
Mr. Wiley met regularly with the Applicant. She always maintained that she did not know what had happened to Kasandra. She denied doing anything that could have led to Kasandra’s death – she told Mr. Wiley that she had pushed Kasandra away while she was tending to Natasha, but never struck Kasandra in any way that could have caused her to be injured.
Mr. Wiley was convinced by Dr. Smith’s evidence that Kasandra had been assaulted, but had no basis for suggesting that Kasandra’s father (or natural mother) had anything to do with it. Mr. Wiley retained Dr. Ruth Bray to conduct a psychological assessment of the Applicant. Mr. Wiley believed that the Applicant had not caused Kasandra’s death and was fortified in this belief by Dr. Bray’s opinion that the Applicant had not caused her step-daughter’s death.
Mr. Wiley’s only defence, as he saw it, was one of accident, but he had no expert opinions to support this position. He considered the Applicant to be in a dreadful situation. A complicating factor was that the Applicant was pregnant with her fourth child. He discussed the Crown’s position with Ms. Linda Price, the senior of the two Crowns on the case. She told him that the Crown would seek a three to five year penitentiary sentence if the Applicant was convicted after a trial, and added that she would recommend an appeal if the trial judge were to impose a reformatory sentence. On the other hand, if the Applicant pleaded guilty to the charge of manslaughter, Ms. Price was prepared to agree to a joint submission of a reformatory sentence of two years less a day with a recommendation from the trial judge that the sentence be served at the Vanier Institution in Brampton. Vanier was very near to where the Applicant’s mother and four children were living.
Mr. Justice Langdon of the Superior Court of Justice was assigned to be the trial judge. With the Crown’s consent, Mr. Wiley re-elected trial by a judge without a jury. The Applicant’s trial began on September 28, 1992. A voir dire was commenced to determine the voluntariness of her statements to the police. As the voir dire proceeded, Mr. Wiley urged the Applicant, in out-of-court conversations, to accept the Crown’s plea offer and the joint submission on sentence. There is no doubt today in Mr. Wiley’s mind that the Applicant was persuaded by his opinion and, on October 1, 1992, she accepted his advice and pleaded guilty. The case was adjourned to October 22, 1992 for the facts to be read in, and for her sentencing.
When the plea was entered, it was Mr. Wiley’s understanding that the factual basis for the plea was that the Applicant struck Kasandra a single blow to the back of her head which caused her death. Within days of the plea being entered, Mr. Wiley recalls that he became aware that Dr. Levin, an ophthalmologist at the Hospital for Sick Children, believed that Kasandra’s retinal hemorrhages proved that she had been severely shaken and that this shaking was the actual cause of her death. Dr. Smith had also alluded to likely shaking of Kasandra in his evidence at the preliminary hearing.
Mr. Wiley and the Crown discussed striking the plea. If Kasandra had died as a result of shaking, it struck at the essence of the facts to be read in on the Applicant’s plea. Counsel agreed on a course of action. Mr. Wiley would retain Dr. Lucy Rourke of the Department of Pathology, at the Children’s Hospital in Philadelphia, for an opinion on whether the blow on which Dr. Smith relied was sufficient in itself to have been the cause of death. Mr. Wiley and Detective Barnhart of the Peel Region Police Force travelled to Philadelphia and briefed Dr. Rourke on the case. She reviewed the case for a short time and verbally advised Mr. Wiley that a single blow to the head could have caused Kasandra’s death. Mr. Wiley recalls Detective Barnhart was present at the time that Dr. Rourke gave her opinion (but is aware that Detective Barnhart may disagree). An allusion was made to these events when the facts were read in by the Crown on October 22, 1992. Ms. Price advised the Court:
Ms. Price: Now, that is ... With regard to Dr. Smith, the pathologist – and Your Honour is aware of the events of the last week and a bit with regard to this case – it is Dr. Smith’s position with regard to the suggestion that more had occurred than one blow, that is, the issue of shaking, that ...
The Court: I am assuming the accused shaking the child.
Ms. Price: Yes. As well.
The Court: I see. Very well.
Ms. Price: That shaking may well have been a component, but that is speculative and until there is more research in the area, he is not prepared to say more than that. That it is his position still that, as he first opined, that the cause of death was evidenced by at least one blow of significant force to her head. Because, as Your Honour will remember, defence took issue with that suggestion.
The Court: I’m sorry?
Ms. Price: I’m sorry. Defence took issue.
The Court: I see. Okay.
Ms. Price: Perhaps I shouldn’t say ‘took issue’ with that suggestion, but that became an issue in any event. It became a potential issue. That is the position of the pathologist in this particular case who examined the body.
Mr. Wiley himself referred to the trip to Philadelphia in his submissions on sentence:
When my friend mentioned other - an issue that the defence had taken with respect to this matter of shaking that had been raised, it was an issue which came up not only as an issue of some aggravation but also a potential issue with regard to the cause, and an interesting issue, medically speaking, but I think to her credit, having had counsel look at the issue with very experienced people in Philadelphia, coming back and discussing that with my client, she really wasn’t interested in interesting issues, she was interested in assuming responsibility, which she has done for what occurred on the 9th of ‘91, and after long reflection is content that the first opinion which was offered by Dr. Smith as early as August of 1991 at the preliminary hearing, which I think I read to Your Honour on another occasion when we were here discussing the matter of release of these exhibits.
He certainly says at page 73 of the preliminary hearing, “If there was one blow, then certainly one blow can explain everything,” and that is certainly consistent with what my friend has read in to you with regard to the facts, and that is the position on which this plea of guilty is tendered. 5
Mr. Wiley summarized the motivations for the Applicant’s plea for Mr. Lockyer as follows:
a) Dr. Charles Smith was the Crown’s star witness whose reputation preceded him – “everyone was talking about him”. His opinions seemed unassailable, and he had the support of the Suspected Child Abuse and Neglect Unit (SCAN), at least two of whom were to be Crown witnesses. Dr. Jaffe, whom Mr. Wiley consulted, never challenged the watch impression theory. Mr. Wiley and the Crown both found this theory particularly compelling as the Applicant’s watch did match the shape of the injury under Kasandra’s scalp. Mr. Wiley saw his only defence as one of accident but he had no expert evidence to support this, nor any testimony from the Applicant that she had ever seen Kasandra fall so that her injury could have resulted from a fall in the home. Dr. Smith had also graphically described in his testimony the type of fall needed to cause such an injury. Most problematic was that, despite Dr. Jaffe’s best efforts, he could not produce an object from the bedroom on which Kasandra may have fallen to match the donut-shaped bruise. As a consequence, Mr. Wiley feared that the Applicant was doomed to be convicted after a trial.
b) The Applicant’s personal situation was dire. Her three children were in the custody of her mother. She likely faced a penitentiary sentence after a trial. This would result in her being imprisoned in the Kingston Penitentiary for Women far from her children. She might never be allowed to have custody of her children again. As well, when the trial began, the Applicant was three months pregnant, and was very apprehensive as to whether she would be allowed to keep the baby. In all these circumstances, a reformatory sentence in the Vanier Institution was a proposition that gave the Applicant some hope for the future. Children’s Aid officials suggested that her children would likely be allowed to return to her if she accepted responsibility for Kasandra’s death and served her sentence locally. Dr. Bray saw the plea as a good option for the Applicant in her overall circumstances. Finally, it was important, if possible, that the Applicant, who had been on anti-depressants since 1991, avoid the tremendous stress of a lengthy trial to determine whether she was responsible for Kasandra’s death.
c) Mr. Wiley has always stressed that the Applicant never told him that she did anything to cause Kasandra’s death."
Harold Levy...hlevy15@gmail.com;
