UP-DATE: DOOLEY CASE: APPEAL COURT BLOCKS ATTACK ON OPINIONS RENDERED BY DR. CHARLES SMITH AND OTHER PATHOLOGISTS; REJECTS FRESH EVIDENCE APPLICATION

"A panel of Ontario Appeal Court judges has rejected fresh evidence presented by lawyers representing a Toronto couple convicted of second-degree murder in the death of their seven-year-old son," The CBC reports.

"Randal Dooley died in September 1998 of a brain injury, the culmination of what the judge presiding over his parents' 2002 trial called one of the worst cases of child abuse in Canadian history," the CBC story, published yesterday, continues.

"The boy's father, Tony Dooley and stepmother, Marcia Dooley, were sentenced to life in prison in May 2002. Marcia Dooley's parole eligibility was set at 18 years, while Tony's was set at 13 years.

Lawyers for the couple are now asking the Ontario Court of Appeal to grant the two a new trial, saying fresh evidence casts doubt on the cause of death.

Two experts in the original trial — Dr. Robin Humphreys and the now discredited Dr. Charles Smith — concluded the boy had died after being violently shaken.

Alternate cause of death

On Tuesday, defence lawyer Gerald Chan presented the opinion of another pathologist, Dr. David Ramsay, who said shaking may not have caused the fatal brain injury.

Ramsay also said there is no reliable data on how much force is required to cause that injury, and suggested it could have been caused by a fall from a bunk bed — an explanation given by the Dooleys in 2002 for Randal's death.

However, Justice David Doherty said Tuesday all the experts agree that Randal suffered a fatal brain injury. He said if the injury wasn't caused by shaking, it could have been caused by the blunt force of a hand or fist.

Doherty questioned how the information presented Tuesday was new evidence, since many of the arguments had been made at their trial.

The Appeal Court is scheduled to hear arguments on the appeal through Thursday.

Trial judge criticized

Tony Dooley's lawyer, Clayton Ruby, kicked off the appeal Monday by saying the original trial judge had erred by repeatedly using inflammatory language in his comments to jury members instead of encouraging them to be unemotional.

The presiding judge at the time, Superior Court Justice Eugene Ewaschuk, determined Marcia Dooley inflicted most of the beatings and was the one who murdered Randal.

During sentencing, Ewaschuk called Marcia Dooley "Randal Dooley's cruel and evil stepmother."

Ewaschuk called Tony Dooley a coward, saying the father chose deliberately to do nothing to prevent his son's death.

An autopsy on Randal, who weighed just 40 pounds at the time of his death, discovered 13 broken ribs, a lacerated liver and a tooth in his stomach. A pathologist testified the boy had been stomped on and kicked.

"We provide an appeal because it's good for us to have a justice system we can be proud of. It's not for [Tony Dooley]; it's for us," Ruby said Monday, acknowledging the Dooleys were unlikely to receive public sympathy."

The story can be found at:

http://www.cbc.ca/canada/toronto/story/2009/09/22/randal-dooley-appeal-evidence482.html

Harold Levy...hlevy15@gmail.com;