MARCIA AND TONY DOOLEY CASE: SMITH OPINION COMES UNDER ATTACK IN ONTARIO COURT OF APPEAL ALONG WITH OTHER GROUNDS;

"WHAT THE LAWYERS WILL ARGUE, THIS IN THE WAKE OF THE WELL-DOCUMENTED FALL OF DISGRACED PATHOLOGIST DR. CHARLES SMITH (WHO TESTIFIED AT THIS TRIAL AND WHO, WITH ANOTHER EXPERT WHO TESTIFIED, BELIEVED RANDAL HAD DIED OF A RECENT SUBDURAL HEMATOMA, POSSIBLY CAUSED BY SHAKING, OR BLUNT FORCE, OR BOTH) AND THE DISCREDITED "SHAKEN-IMPACT SYNDROME" THEORY, IS THAT THE CUMULATIVE EFFECT UNDERMINES THE CONCLUSION THAT THE PAIR HAD THE REQUISITE INTENT FOR MURDER.

NOTHING, HOWEVER, SIGNIFICANTLY DIMINISHES THE IMPACT OF THE 61 TRIAL WITNESSES AND 92 TRIAL EXHIBITS AND THE HARD TRIAL TRUTH - THAT RANDY WAS THE VICTIM OF A VICIOUS, ESCALATING AND ULTIMATELY FATAL PATTERN OF ABUSE THAT COULD ONLY HAVE BEEN CARRIED OUT BY THOSE WHO HAD A DUTY TO PROTECT HIM."

COLUMNIST CHRISTIE BLATCHFORD: THE GLOBE AND MAIL;

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""The buildings are cheek-by-jowl in downtown Toronto, their entrances maybe a couple of hundred feet apart," Christie Blatchford's column, published earlier today begins, under the heading, "bloodlessness of appeal belies violent death
Lawyers are now arguing that Randy Dooley's stepmother and father were wrongly convicted of murder."

"But it's a million miles from the trenches where Randy Dooley's parents' murder trial was held in the spring of 2002 to the august Ontario Court of Appeal, where lawyers are now arguing that his stepmother and father were wrongly convicted," the column by Blatchford, who covered the Dooley trial, continues.

""The little boy died on the evening of Sept. 24, 1998, his daddy phoning 911 the next morning to report, rather memorably, "For some reason, it seems like my little son has killed himself or something. He's stiff as a board."

Both Marcia Dooley, Randy's stepmother, and his father Anthony (Tony) Dooley were convicted by a jury almost four years later of second-degree murder.

Though on the evidence heard at the three-month trial, she was found to have been the actual murderer, Mr. Dooley a secondary player or party, the jurors' verdict suggested they accepted the prosecutorial theory that the long-standing abuse of Randy was a joint enterprise.

Their differing degrees of criminal responsibility were reflected in the sentences Ontario Superior Court Judge Eugene Ewaschuk gave them - the missus eligible to apply for parole after 18 years in prison, the mister after 13 years.

In the able hands of Judge Ewaschuk, the trial was a vibrant, living thing, as trials ought to be, and the dead boy - seven years old, three-foot-10-inches tall and 42 pounds, Randal was at autopsy found to have at least 13 broken ribs, a developing pneumonia, a torn liver and adrenal gland and four areas of injury to his brain linked to two separate incidents, one old, one recent - had a presence in the courtroom.

Not so at the appeal court, where bloodlessness is the name of the game, but where even so, Clayton Ruby, the appeal lawyer for Mr. Dooley, yesterday brought matters to a new depth of aseptic dryness.

Mr. Ruby made the argument - it is the first one in his 88-page factum - that Judge Ewaschuk prejudiced the Dooley jurors by describing the dead boy numerous times in his final remarks as "poor, pitiful Randal."

Outside the courthouse on a break, Mr. Ruby said the judge had a duty to remind the jurors to be dispassionate and that by repeatedly saying " 'poor, pitiful Randal,' that alliteration, we say, had the effect of inflaming the jury."

In his factum, he went even further. "There are, regretfully, a large number of judicial comments which refer to 'poor, pitiful Randal,' " Mr. Ruby wrote.

"Indeed, a juror might well think that this was Randal Dooley's proper name."

Har-har-har: There's nothing like having a laugh at an old judge (Judge Ewaschuk is now semi-retired) and a dead kid (now in his grave almost 11 years to the day).

Mr. Ruby appears to be throwing everything but the kitchen sink at this one.

In addition to the miscarriage-of-justice-by-alliteration allegation, he raised the spectre of racism, pointing out that "the opportunities for hatred of and disgust at these two black accused persons in the public mind were numerous," as if Randy, the alleged object of so much misplaced sympathy, was not also black; he argued that because Mr. Dooley wasn't present in the apartment for the last assault upon Randal, he shouldn't have been convicted and said, "If I'm right about that, there should be an acquittal," and today, lawyers for both Dooleys will also argue a "fresh evidence" application.

The fresh evidence in my view hardly lives up to its name in this instance.

What the lawyers will argue, this in the wake of the well-documented fall of disgraced pathologist Dr. Charles Smith (who testified at this trial and who, with another expert who testified, believed Randal had died of a recent subdural hematoma, possibly caused by shaking, or blunt force, or both) and the discredited "shaken-impact syndrome" theory, is that the cumulative effect undermines the conclusion that the pair had the requisite intent for murder.

Nothing, however, significantly diminishes the impact of the 61 trial witnesses and 92 trial exhibits and the hard trial truth - that Randy was the victim of a vicious, escalating and ultimately fatal pattern of abuse that could only have been carried out by those who had a duty to protect him.

As even one of the defence lawyers at trial once wearily agreed, "You don't have to be a brain surgeon to look at Randal's body and see obvious signs of abuse." And only two people had ongoing exclusive access to that little boy.

His parents described his last day as utterly normal, even as they also told the police he had vomited four or five times, wet himself, lost control of his bowels and suffered a seizure such that Marcia Dooley stuck him in a bathtub of cold water and even forced ice on a spoon into his mouth.

As Randy's older brother Teego, then 11, testified - he was in the bathroom when Mrs. Dooley did her trick with the spoon, perhaps breaking off the tooth later found in Randy's tummy at autopsy - he took his little brother out of the tub, dressed him in dry jammies, and lay down beside him.

There is nobility in the trial lawyer's job, and perhaps there's nobility in what lawyers do at the Court of Appeal, and I am merely blind to it. But I am blind, and furious that the appellate Crowns acknowledge in their factum that Judge Ewaschuk's "repeated references to 'poor pitiful Randal' were unnecessary," though they defend them as grounded in evidence and accurate. "No one would quarrel with the sentiment expressed by the trial judge," their factum reads. But, they add, "That sentiment, however had no place in his instruction."

But Judge Ewaschuk was there, in court, every day, as were the jurors, as was I. No one will ever convince me that Randy Dooley was not poor or pitiful, or that jurors should not have heard the judge say he was. He was.. Jurors don't want automatons as judges, even if they may get them in their lawyers.

Oh, and by the way - Randy's brother's name is pronounced Teego (Tea-Go), Mr. Ruby. It does not rhyme with Leggo.

The column can be found at:

http://www.theglobeandmail.com/news/national/bloodlessness-of-appeal-belies-violent-death/article1296656/

Harold Levy...hlevy15@gmail.com;