WRONGFUL CONVICTIONS IN CANADA; WHO WILL BE EXONERATED NEXT?; EXCELLENT POST ON THE "PRECEDENT BLOG;" FAULTY FORENSICS ALL TOO PREVALENT;

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"TAMMY MARQUARDT, WAS CONVICTED OF THE SECOND DEGREE MURDER OF HER TWO AND A HALF YEAR OLD SON, KENNETH WYNNE, ON OCTOBER 24, 1995 AND SENTENCED TO LIFE IMPRISONMENT. . TAMMY MARQUARDT WAS 21 WHEN HER SON PASSED AWAY AND 23 YEARS OLD WHEN CONVICTED OF HIS MURDER. TAMMY MARQUARDT HAD BEEN OFFERED A FIVE-YEAR SENTENCE FOR MANSLAUGHTER BY THE CROWN BUT REFUSED EVEN THOUGH SHE WOULD HAVE BEEN ELIGIBLE FOR PAROLE AFTER 20 MONTHS IN JAIL. IN 1998 TAMMY MARQUARDT APPEALED HER CONVICTION BUT LOST. IRONICALLY, ONE OF THE ONTARIO COURT OF APPEAL JUDGES HEARING TAMMY MARQUARDT'S CASE WAS JUSTICE STEPHEN GOUDGE WHO FOUND HIMSELF, SOME 10 YEARS LATER, CONDUCTING AN INQUIRY INTO DR. CHARLES SMITH'S OPINIONS CONCERNING BABY DEATHS."

TODD HARRISON: THE PRECEDENT BLOG;

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"WILLIAM MULLINS-JOHNSON WAS CONVICTED IN 1994 OF FIRST-DEGREE MURDER IN THE DEATH OF HIS FOUR-YEAR-OLD NIECE IN SAULT STE. MARIE. DURING THE TRIAL, FOUR PATHOLOGY SPECIALISTS, INCLUDING A DR. CHARLES SMITH, WERE ASKED TO REVIEW TISSUE SAMPLES AND EVIDENCE. DR. SMITH WAS THE ONLY SPECIALIST OF THE FOUR TO CONCLUDE THAT THE CHILD HAD BEEN SEXUALLY ASSAULTED AT THE TIME OF DEATH, WHICH CONTRADICTED DEFENCE EVIDENCE THAT THE CHILD HAD DIED OF NATURAL CAUSES. DR. SMITH'S OPINION WAS ESSENTIAL TO THE JURY'S VERDICT OF FIRST-DEGREE MURDER. BECAUSE OF PROFOUND DOUBTS ABOUT THE INTEGRITY OF THE CONVICTION AND THE RESULTS OF MORE RECENT AND POTENTIALLY EXCULPATORY PATHOLOGICAL EVALUATIONS, AIDWYC HAD SOUGHT FOR SOME TIME TO RE-OPEN THE CASE. REPORTS THAT DR. SMITH HAD MISPLACED CRUCIAL EVIDENCE FRUSTRATED THESE EFFORTS AND PROMPTED AN AUDIT OF TISSUE SAMPLES FROM AUTOPSIES PERFORMED AT THE HOSPITAL FOR SICK CHILDREN IN TORONTO SINCE 1991. THE MISSING EXHIBITS OF CONCERN TO AIDWYC WERE SUDDENLY DISCOVERED ON DR. SMITH'S DESK IN LATE MAY.

AT THE TIME OF THE TRIAL, DR. SMITH WAS FREQUENTLY CALLED AS A PROSECUTION EXPERT IN TRIALS INVOLVING PEDIATRIC FORENSICS. SINCE THEN, DOUBTS ABOUT HIS FINDINGS IN A NUMBER OF CASES HAVE LED TO CHARGES BEING WITHDRAWN AND SOME CONVICTIONS BEING QUESTIONED. IN 2002, DR. SMITH WAS REPRIMANDED BY THE ONTARIO COLLEGE OF PHYSICIANS AND SURGEONS. ON JUNE 7, 2005, ONTARIO'S CHIEF CORONER ORDERED A FORMAL, INDEPENDENT REVIEW OF DR. SMITH'S INVOLVEMENT IN OVER 40 CASES IN WHICH HE PERFORMED AN AUTOPSY OR OFFERED AN EXPERT OPINION."

TODD HARRISON: THE PRECEDENT BLOG;

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"KYLE UNGER WAS SENTENCED TO LIFE IMPRISONMENT ALONG WITH CO-ACCUSED TIMOTHY HOULAHAN, WHO LATER COMMITTED SUICIDE, FOR A 1990 MURDER BASED IN PART ON A HAIR FOUND AT THE FEET OF THE VICTIM, 16-YEAR-OLD BRIGITTE GRENIER. THE HAIR SAMPLE WAS ORDERED TO BE RE-TESTED YEARS LATER BY THE RECENTLY ESTABLISHED MANITOBA HAIR EVIDENCE REVIEW COMMITTEE. CONTRARY TO THE PROSECUTION EVIDENCE LED AT TRIAL, THERE WAS NO INCRIMINATORY MATCH;"

TODD HARRISON; THE PRECEDENT BLOG;

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Bravo to writer Todd Harrison for his August 14, 2009 story on the "Precedent Blog" entitled "Who will be exonerated next," with its update on current wrongful convictions which have been taken on by AIDWYC - the Association in Defence of the Wrongly Convicted.

All too many of these cases cases - including the Steven Truscott case - are examples of forensic science (or forensic scientists) gone terribly wrong.

"Precedent: The new rules of law and style," is Ontario’s first independent legal magazine for young lawyers," is how Precedent describes itself.

"We’re stylish, fresh, and a little bit irreverent. Mixing law and lifestyle, Precedent brings you legal news, fashion, entertainment — all with a sense of humour. We think it's exactly what lawyers have been waiting for."

It is refreshing to note that Precedent has taken on such a crucial. visceral topic of interest to lawyers such as wrongful convictions = many of which have been caused by faulty pathology or faulty pathologists - or both;

"The recent death of Donald Marshall has prompted renewed public and media interest in the topic of wrongful convictions in Canada," writer Todd Harrison begins;

"Lately, we've seen everything from looks back at famous cases in our country's legal history to reflections on how much more still must be done to protect Canadians against being sent to prison for a crime they didn't commit," he continues;

"Central to any such discussion is the Association in Defence of the Wrongly Convicted (AIDWYC). The group has been at the forefront of many of Canada's high-profile exonerations, and it continues to work on behalf of people seeking to clear their names.

It's only a matter of time before someone else follows the footsteps of Marshall, David Milgaard and Guy-Paul Morin to freedom and vindication. Here's a look at some of the candidates whose cases are currently being fought by the AIDWYC.

Cases
The following are AIDWYC's current active adopted cases and their status. Check the News and Library pages for recent articles in the media on each of these cases.

New Cases
On May 21st 2009 AIDWYC endorsed the International cases of Jeff Boppre and Raymond Gray.

Jeff Boppre has been incarcerated for nearly 21 years in a Nebraska prison for two murders that we believe evidence proves Mr. Boppre did not commit.

Raymond Gray has been incarcerated in Michigan prisons for 37 years for a murder that AIDWYC believes evidence shows he did not commit.

Further information regarding both of these cases will be posted shortly.

Robert Baltovich
In June 1990, Elizabeth Bain, the girlfriend of 24-year old Robert Baltovich, a recent University of Toronto graduate, was murdered in Toronto. Her body has never been found, nor the weapon used to kill her. Two years later, Baltovich was convicted of the murder and sentenced to life in prison. In March 2000, AIDWYC filed a defence brief at a bail hearing and argued that there was new evidence to suggest that Baltovich was innocent and that the real perpetrator was Paul Bernardo. The bail hearing was successful and, after spending eight years in prison, Baltovich was released pending the appeal of his conviction. In September 2004, Baltovich's appeal was heard. In December 2004, the Ontario Court of Appeal unanimously quashed Robert Baltovich's murder conviction. In 2005 a new trial was ordered. Jury selection proceeded and the trial began in April of 2008. However, on April 22, 2008, the Crown withdrew its case against him and he was acquitted by the jury.

Christopher Bates
Christopher Bates was sentenced to life imprisonment in 1993 for the robbery and murder of Remi Lariviére, a Cowansville shopkeeper. Three others were charged in the crime. The evidence to support Bates' conviction was extremely tenuous. Bates was the first to go to trial. Two of the other men were later found not guilty and the fourth person was not prosecuted. On appeal, with AIDWYC's assistance, Bates' conviction was overturned and a new trial ordered. Anxious about his counsel and fearing a second wrongful conviction and lengthy separation from his young family, Bates accepted a last-second Crown offer of a plea to conspiracy to commit the robbery only and a suspended sentence which did not involve any further time in jail. AIDWYC shares the view of many that this plea of convenience was without factual foundation and after consulting with eminent Quebec counsel, has agreed to proceed with a s.696.1 application on Bates' behalf.

Wilbert Coffin
Wilbert Coffin was hanged for murder in Quebec on February 10, 1956. The federal Justice Department is now investigating whether the Gaspé woodsman was actually guilty of the crime. The Criminal Convictions Review Group (CCRG) is studying whether there are grounds to overturn Mr. Coffin's 1954 conviction. This represents the first time the CCRG--whose mandate is to investigate possible miscarriages of justice--has examined a case where the convicted person is deceased. In AIDWYC's review process, lawyer and AIDYWC co-president, Elisabeth Widner, along with AIDWYC's Director of Client Services, Win Wahrer, have visited Gaspé, Quebec in search of evidence that could exonerate Coffin. His case was subsequently formally adopted by AIDWYC in September 2006. The investigation could lead to three possible outcomes: to dismiss the application, to refer the case to a Court of Appeal, or to recommend a new trial. Canada has never overturned a conviction posthumously. It would set an important precedent and argument against the death penalty, and provide some measure of solace to Mr. Coffin's remaining family members.

Tammy Marquardt
Tammy Marquardt, was convicted of the second degree murder of her two and a half year old son, Kenneth Wynne, on October 24, 1995 and sentenced to life imprisonment. . Tammy Marquardt was 21 when her son passed away and 23 years old when convicted of his murder. Tammy Marquardt had been offered a five-year sentence for manslaughter by the Crown but refused even though she would have been eligible for parole after 20 months in jail. In 1998 Tammy Marquardt appealed her conviction but lost. Ironically, one of the Ontario Court of Appeal judges hearing Tammy Marquardt's case was Justice Stephen Goudge who found himself, some 10 years later, conducting an inquiry into Dr. Charles Smith's opinions concerning baby deaths.

In 2004 Tammy Marquardt contacted AIDWYC seeking its assistance in clearing her name. AIDWYC lawyers discovered that she was largely convicted on the expert testimony of discredited forensic pediatric pathologist Dr. Charles Smith who at the time was revered as the foremost expert in pediatric pathology. Dr. Smith testified that Kenneth was either smothered or strangled to death. Tammy Marquardt has always denied any wrong doing in Kenneth's death and, subsequently, six forensic experts including Newfoundland's Chief Medical Examiner, Dr. Simon Avis, have rejected Smith's opinion as to the cause of death. Kenneth was an epileptic and Dr. Avis believes he could have died from a seizure or other natural causes.

After 14 years behind bars Tammy Marquardt, on March 12, 2009, was granted bail and released to await the final outcome of her case, which will ultimately be heard in the Supreme Court of Canada of the Ontario Court of Appeal later this year.

William Mullins-Johnson
William Mullins-Johnson was convicted in 1994 of first-degree murder in the death of his four-year-old niece in Sault Ste. Marie. During the trial, four pathology specialists, including a Dr. Charles Smith, were asked to review tissue samples and evidence. Dr. Smith was the only specialist of the four to conclude that the child had been sexually assaulted at the time of death, which contradicted defence evidence that the child had died of natural causes. Dr. Smith's opinion was essential to the jury's verdict of first-degree murder. Because of profound doubts about the integrity of the conviction and the results of more recent and potentially exculpatory pathological evaluations, AIDWYC had sought for some time to re-open the case. Reports that Dr. Smith had misplaced crucial evidence frustrated these efforts and prompted an audit of tissue samples from autopsies performed at the Hospital for Sick Children in Toronto since 1991. The missing exhibits of concern to AIDWYC were suddenly discovered on Dr. Smith's desk in late May.

At the time of the trial, Dr. Smith was frequently called as a prosecution expert in trials involving pediatric forensics. Since then, doubts about his findings in a number of cases have led to charges being withdrawn and some convictions being questioned. In 2002, Dr. Smith was reprimanded by the Ontario College of Physicians and Surgeons. On June 7, 2005, Ontario's Chief Coroner ordered a formal, independent review of Dr. Smith's involvement in over 40 cases in which he performed an autopsy or offered an expert opinion.

Mullins-Johnson was released on bail on September 21, 2005 pending ministerial review of a s. 696.1 application. In July 2007, Federal Justice Minister Rob Nicholson ordered the Court of Appeal to review the case stating that "a miscarriage of justice may well have occurred." On October 15, 2007, the Ontario Court of Appeal acquitted Mullins-Johnson of all charges.

Romeo Phillion
Romeo Phillion was convicted in 1972 of the murder of firefighter and apartment superintendent Leopold Roy in Ottawa. New evidence was identified, including a police report not shown to the defence at the original trial that supported Mr. Phillion's alibi that he was at a service station 200 kilometres from Ottawa when the crime took place. There was also evidence that four Crown witnesses all changed their testimony about when they saw Mr. Phillion in Ottawa. An s.696.1 application was prepared and submitted to the Federal Minister of Justice, by AIDWYC and the Osgoode Hall Innocence Project on May 15, 2003. After serving 31 years in prison, Mr. Phillion, as a result of AIDWYC's efforts, was released on bail in July 2003. At the time, Mr. Phillion was the first person ever granted bail pending a ministerial review of his wrongful conviction. On August 23, 2006, then Justice Minister Vic Toews advised that he was reserving his final decision until certain issues can be addressed by the Ontario Court of Appeal.

Mr. Phillion and AIDWYC lawyers attended the Ontario Court of Appeal on January 21, 2008 for a week of testimony in his fresh evidence hearing. On July 8th and 9th 2008, the prosecution and defence lawyers attended court in London, England to hear testimony from the defence false confession expert, world renowned expert, Dr. Gisli Gudjonsson. Justice Robert Sharpe, who has been the "case management judge", flew to England to preside over the taking of evidence from Dr. Gudjonsson. On July 24th Mr.Phillion's fresh evidence hearing continued at the Ontario Court of Appeal with Justice Sharpe presiding. The Crown false confession expert, Dr. Michael Welner, a forensic psychiatrist from New York testified. Dr. Welner admitted that he had never asked to examine Mr. Phillion in person before submitting his report. November 17 - 27, 2008 final oral arguments were heard at the Ontario Court of Appeal. On March 5, 2009 the three Ontario Court of Appeal judges who presided over the fresh evidence hearing, Justices Michael Moldaver, John Laskin and James MacPherson released their written decision. In a 2-1 decision, Justice MacPherson dissenting, Mr. Phillion was awarded a new trial.

Ontario Attorney General, Chris Bentley, has advised Mr. Phillion and AIDWYC lawyers that his office will not proceed with a second trial given the passage of time and the death of so many of the witnesses. The following options are available to the Attorney General: 1. stay the proceedings; 2. withdraw the charges; 3. have Romeo Phillion return to court to be arraigned and enter a plea, at which point the Crown would advise the court it has no evidence to call. A judge would then acquit Mr. Phillion. Mr. Phillion and AIDWYC are awaiting the Attorney General's decision.

Steven Truscott
Steven Truscott was sentenced to death in 1959 at the age of 14 for the murder of 12-year-old Lynne Harper, on the basis of unreliable police and prosecution evidence. His sentence was commuted to life imprisonment in 1960 and his conviction upheld in 1967. In 2001, AIDWYC prepared and submitted an application for ministerial review (s.696.1) on Truscott's behalf. Retired former Justice of the Quebec Court of Appeal, Fred Kaufman, was retained to review, re-investigate and submit a report to the Justice Minister outlining his findings and recommendations. In October 2004, the Federal Justice Minister, Irwin Cotler, stated that Steven Truscott had likely suffered a miscarriage of justice and referred his case to the Ontario Court of Appeal. After pressure from the media, portions of the Kaufman Report were released to the public in November 2006. On June 19, 2006, a five-judge panel conducted a three-week fresh evidence hearing. In April 2006, the body of Lynne Harper was exhumed at the instruction of the Attorney General's office in the hopes of finding DNA evidence. Forensic experts were unable to conduct DNA tests due to the poor condition of her remains. The final oral arguments in Steven Truscott's case were heard in the Ontario Court of Appeal in January and February 2007. On August 28, 2007, the Ontario Court of Appeal acquitted Steven Truscott, concluding, "based on evidence that qualifies as fresh evidence in these proceedings, we are satisfied that Mr. Truscott's conviction was a miscarriage of justice and must be quashed." See the LIBRARY for copies of Truscott legal documents.

Kyle Unger | Updated April 11, 2009
Kyle Unger was sentenced to life imprisonment along with co-accused Timothy Houlahan, who later committed suicide, for a 1990 murder based in part on a hair found at the feet of the victim, 16-year-old Brigitte Grenier. The hair sample was ordered to be re-tested years later by the recently established Manitoba Hair Evidence Review Committee. Contrary to the prosecution evidence led at trial, there was no incriminatory match. The Federal Justice Minister has agreed to review the case. Unger was released on bail on November 24, 2005 pending ministerial review of his s.696.1 application that was submitted on his behalf by AIDWYC.

On March 11, 2009, Federal Minister of Justice, the Honourable Rob Nicholson announced his decision regarding Mr. Unger's case by stating, "I am satisfied there is a reasonable basis to conclude that a miscarriage of justice likely occurred in Mr. Unger's 1992 conviction." Mr. Unger was granted a new trial. Mr. Unger and his AIDWYC lawyers are currently waiting to be advised by the Province of Manitoba whether it will proceed with a second trial.

Erin Walsh
On October 17 1975 a jury convicted Erin Walsh of the second-degree murder of Melvin Eugene Peters, an African Canadian. The Crown claimed Walsh was racially motivated. The incident occurred when Peters and two other males attempted to rob Walsh of his money and drugs. During a life-and-death struggle with a gun, Peters was shot. The Crown's case centered on Walsh as the shooter and convicted of the crime, he spent the next 10 years in prison.Despite overwhelming odds, Walsh continued to pursue justice with what little resources at his disposal. He continued to write to whoever would listen. He continued even when it was to his detriment - even when the parole board would hold it against him. The problem was Walsh's story was not supported by any other independent evidence (that he was then aware of). After 28 years of perseverance, Walsh's efforts paid off.

In 2003, he wrote to the New Brunswick Provincial Archives and was given a package containing the complete Crown file, a file that had been collecting dust for almost three decades. In this file Walsh found a treasure trove of exculpatory evidence never before disclosed. Most significantly, he read for the first time that the Crown's star witness (and only eye witness to the shooting), David Walton (one of the robbers), was overheard by a St. John police officer less than an hour after the fatal shooting, asking his friend (the other robber) and co-crown witness MacMillan, why he shot Peters.

With amazement, Walsh read for the first time that there was a police report that was never disclosed to him or his lawyers that supported his story. In addition, Walsh read that there was a statement recorded by St. John Police in which the proprietor of a local hardware store said that the shells were purchased for the gun one day before Crown witness Macmillan said they were purchased, when Walsh was literally a thousand miles away from St. John. There were also seven signed statements by witnesses who could attest to the fact that Walsh ran away from Crown witnesses MacMillan, Walton and Peters after they had attempted to rob him at gunpoint just prior to forcing him into the car. These witnesses supported the fact that Walsh in fact asked for the police to be called just 10 minutes before the shot was fired that killed Peters.

Finally, on February 22, 2008 Federal Justice Minister R. Nicholson issued a Ministerial Remedy acknowledging that a miscarriage of justice likely occurred. Then, within hours of the Minister's decision, the New Brunswick Attorney General took the honourable position before the New Brunswick Court of Appeal that not only was a miscarriage "likely", but that it in fact occurred. The Attorney General agreed that the conviction should be quashed. On March 14th, 2008, after 33 years of proclaiming his innocence, Erin Walsh was vindicated.

The New Brunswick Court of Appeal reviewed his case and overturned his conviction of second degree murder."

The story can be found at:

http://mail.google.com/mail/?hl=en&tab=wm#inbox/1232902acb89cee7

Harold Levy...hlevy15@gmail.com;