PUBLISHER'S NOTE: THE ACQUITTAL OF SHERRY SHERRET, DIRECTED ON MONDAY DECEMBER 7, 2009, BY THE ONTARIO COURT OF APPEAL, WITH THE CONSENT OF THE CROWN, IS AN ENORMOUS TRIBUTE TO THE ASSOCIATION IN DEFENCE OF THE WRONGLY CONVICTED (AIDWYC), WIN WAHRER, ITS DIRECTOR OF CLIENT AFFAIRS, AND THE THREE LAWYERS WHO HANDLED HER CASE: JAMES LOCKYER, ZACHARY KERBEL AND ANDRAS SCHRECK; THIS BLOG IS PLEASED TO PRESENT FOR OUR READERS THE FRESH EVIDENCE FACTUM FILED ON MS. SHERRET'S BEHALF IN THE ONTARIO COURT OF APPEAL. IT IS A MASTERFUL DOCUMENT WHICH MAKES VERY CLEAR THE ROLE PLAYED IN THIS UGLY MISCARRIAGE OF JUSTICE BY DR. CHARLES SMITH - AND THE COMPLEX PROCESS BY WHICH IT WAS FINALLY UNRAVELLED. I HAVE CHOSEN TO RUN THE DOCUMENT IN FIVE PARTS BECAUSE OF ITS LENGTH.
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PART 1:
STATEMENT OF THE CASE:
On January 4, 1999, Sherry Sherret-Robinson was arraigned before Mr. Justice R.G. Byers in the Ontario Court (General Division) at Belleville on an indictment charging one count of Infanticide. She was alleged to have killed her 4 month-old son, Joshua who had died on January 23, 1996. She elected trial before a judge without a jury and pleaded not guilty. The Crown read in a set of facts to the Court which alleged that the Appellant had smothered Joshua and thereby caused his death. The Appellant’s counsel did not dispute the facts. The Court found her guilty as charged, and an outstanding indictment alleging the Second Degree Murder of Joshua was thereupon withdrawn. The Appellant was subsequently sentenced to imprisonment for one year. She did not appeal her conviction or sentence. In February, 2006, ten years after Joshua’s death, the case was reopened at the Appellant’s request. Joshua’s body was exhumed and a second autopsy conducted. Its conclusions led to the Appellant bringing an application, pursuant to section 678(2) of the Criminal Code, for an extension of time to file an appeal from her conviction. On July 26, 2007, Madam Justice MacFarland granted her application and her conviction appeal was filed. On her appeal, the Appellant is asking that new evidence from forensic pathologists as to the circumstances of Joshua’s death be admitted as fresh evidence, her conviction for Infanticide quashed, and a verdict of acquittal entered.
PART II
SUMMARY OF THE FACTS:
1. THE APPELLANT’S CHILDREN:
2. The Appellant, who is now 34 years of age, has given birth to three children:
• Austin was born on July 4, 1994 and is now 15 years old. Austin was seized by Children’s Aid in 1996 after Joshua died. He was placed for adoption after the Appellant’s conviction and sentencing. She has not seen Austin since her sentencing on June 2, 1999. She is allowed to correspond with him on his birthday and at Christmas each year, and to send him presents.
• Joshua was born on September 23, 1995 and died at 4 months of age on January 23, 1996. The Appellant’s then husband, Peter Robinson, was his natural father.
• Madison, the Appellant’s daughter, was born on September 29, 2005 and is now 4 years old. Madison resides with the Appellant in her apartment in Belleville.
• The Appellant is pregnant and expecting her fourth child on April 6, 2010.
Affidavit of the Appellant, November 7, 2009, Fresh Evidence Materials, Tab 1, paras. 4 and 14
2. THE EVENTS SURROUNDING JOSHUA’S DEATH:
3. At 8:00 a.m., on January 23, 1996, at the age of 4 months, Joshua was found by his mother lying face down, dead, in his playpen. Her husband and Austin, who was then 18 months old, were also in the apartment.
Affidavit of the Appellant, November 7, 2009, Fresh Evidence Materials, Tab 1, para. 4
4. The circumstances of Joshua’s death are described in the Appellant’s affidavit on the appeal. On January 22, 1996, the Appellant, her husband Peter Robinson, Austin and Joshua were living together at an apartment in Trenton. The Appellant had spent the day with Joshua at her parents’ home. She returned home with him at 9:30 p.m. After he was fed and changed, Joshua was put to bed. He had recently begun sleeping in his playpen in the living room, which he seemed to prefer to his bassinet. An adult sleeping bag was folded underneath him, and a comforter and blanket were over him. The Appellant checked on Joshua two or three times, fed him at around midnight, and later went to bed herself.
Affidavit of the Appellant, November 7, 2009, Fresh Evidence Materials, Tab 1, paras. 5, 6
5. At 5:30 a.m., the Appellant woke in the middle of a dream. She checked Joshua and Austin. Both were sleeping. At 8:00 a.m., she woke up again and was surprised that Joshua had apparently slept through the night. She went to wake up both her children. Joshua was lying in his playpen face down. The Appellant picked him up. His body was completely stiff and his complexion was blue. She became frantic. She placed him back on his tummy and yelled for her husband. He checked Joshua and cried: “No, not my son, not my son.” Because they had no phone, the Appellant ran out of the apartment, into the building, screaming, “My baby’s dead. My baby’s dead.” and banged on doors for help. A neighbour, Cathy Chandler, answered her door and allowed the Appellant to use her telephone. The Appellant called her mother who, at 8:21 a.m., called emergency services.
Affidavit of the Appellant, November 7, 2009, Fresh Evidence Materials, Tab 1, paras. 6,7
6. James McDonald, a neighbour in the building, heard the Appellant crying and screaming, and was first into the apartment. He found Joshua lying on his stomach in his playpen. He said in his statement:
What I was expecting was the baby choking or something at the time. When I observed the baby, it didn’t look to be anything wrong. It seemed to be sleeping. I put my arm on the one shoulder and grabbed the other shoulder to turn him over. As I turned it over, as soon as I saw the face, the discolourment, the eyes closed up swollen, I knew the rigor mortis had already set in and it had been there awhile. I felt myself there was no need to try to revive the baby at that time. I felt it was too late. I just placed the baby back down the way I found it.
Mr. McDonald was asked how Joshua was laying. He responded:
Face down arms up over its head. It had a mound of blankets around him. I feel if the child was in distress over the night it wouldn’t have been able to roll over on its side because of the blankets. (emphasis added)
Witness Statement of James McDonald, January 24, 1996, Appeal Book, vol. 1, p. 76-77
7. The police response was almost immediate. Cst. Christine Snider was the first officer on scene at 8:22 a.m. The Appellant met her in the stairwell wearing a t-shirt and underwear. Cst. Snider saw Joshua’s father crying in the kitchen doorway. She described her observations of Joshua:
He was in a small playpen in the livingroom. He had thick comforters under him and a small blanket pushed beside him. He was wearing an undershirt and a diaper. The child was laying on his stomach with his face down and slightly to the left. I could not see the child’s profile from the top. The child’s head was facing east with the feet facing west. The child’s head was blue - both the face and the backview. His skin was cool to the touch and clammy. I did not notice any marks on the baby. I asked the father how long the child had not been breathing. He stated at least 10 minutes. (emphasis added)
Willsay of Cst. C. Snider, Appeal Book, vol. 1, p. 82
8. Cst. Delong, an Identification Officer, attended and took photographs of the apartment and the playpen.
Cst. Delong noted that all four layers were damp, and increasingly so layer by layer. The bars of the playpen were padded with vinyl coverings. Cst. Delong noted red staining on the comforter which she believed likely originated from Joshua’s mouth. The Centre of Forensic Sciences subsequently reported that stains on the comforter showed “indications of blood”
Willsay of Cst. L. Delong, Appeal Book, vol. 1, p. 85
Centre of Forensic Sciences Report, Appeal Book, vol. 1, p. 254
Photos, Appeal Book, vol. 1, p. 100-105
9. Ambulance attendants arrived. They found Joshua to be purple in colour. His eyes were closed and non-reactive and there was “thick white mucous” around his lips and gums. Attendant Litwiller noted that there were “a large number of blankets” in the playpen, under and beside the baby. Resuscitation attempts were made en route to, and at, the Trenton Memorial Hospital, but to no avail. Joshua was pronounced dead at 9:20 a.m..
Willsay of Roger Littwiller, Appeal Book, vol. 1, p. 255
10. The Coroner, Dr. Bonn, and Staff Sgt. MacLellan spoke to the Appellant at the hospital. She told them that Joshua had been sleeping in the playpen, instead of his bassinet, for a week and said she last fed him in the night at 12:30 a.m. with Similac formula. She said there was a severe mold and mildew problem in her apartment. Dr. Bonn asked her:
Q. What time this morning did you check the baby?
A. 08:00
Q. Was the alarm set?
A. Yes.
Q. What did you notice?
A. He was white, not breathing.
Q. Did you pick him up?
A. No, I just shook him, then ran out to bang on doors, get a phone
Q. Did you notice anything else about the baby?
A. His lips were blue, head at the head of the playpen.
Q. What position was he in?
A. On his belly.
Q. Which way was his face?
A. (indicated turn to the right).
Staff Sgt. MacLellan then asked her:
Q. What position was he put down?
A. On his belly.
Q. Who put the baby down?
A. I did.
Q. Was the baby still in same position?
A. He moved his arm, and had moved closer to the end of the playpen couple of inches. [The] Comforter was bunched up at that end around his head but his head [was] at the same end as when he was put down.
Q. What time did you go to bed?
A. About 1:30 (also stated baby monitor was on in the room and it works).
The Appellant and her husband both thought Joshua’s death might be linked to the mold and mildew problem in their building.
Memo Book of S/Sgt. G. MacLellan, Appeal Book, vol. 1, pp. 262-264
Statement of Sherry Sherret-Robinson, March 7, 1996, Appeal Book, vol. 1, pp.132, 152, 156
Statement of Peter Robinson, March 7, 1996, Appeal Book, vol. 1, pp.194-195
11. The police investigated Joshua’s medical history. They discovered that the Appellant had taken him to see a doctor on several occasions. He was a fussy baby and, on occasion, the Appellant found it difficult to cope. She was described as depressed at times. On December 29, 1995, after a particularly difficult day, she took Joshua to the Trenton Memorial Hospital. While there, she told a nurse that she was worried that she might smother Joshua. The Appellant was anxious and upset at the time. A doctor saw her and concluded that the Appellant was talking impulsively, and he had no concerns about the Appellant’s ability to care for Joshua. The police also found out that the Appellant had been complaining to the City of Trenton about the mold in her building. On January 5, 1996, the Appellant took Joshua to the hospital again. Joshua had been irritable, short of breath, and was not eating well. The Appellant told hospital staff that she suspected the mold was making him ill and she was planning to move.
Summary of Facts, Transcript of Trial Proceedings, January 4, 1999, 103/10-108/20
3. THE AUTOPSY:
12. At first, the autopsy was going to be performed at the Belleville General Hospital. On the post-mortem warrant, the Coroner requested a “full SIDS investigation”. X-rays were first taken of Joshua’s body and they showed a “bucket handle” fracture of the left ankle. Concerned that Joshua’s death might be a “suspicious death”, the Coroner arranged for the autopsy to be performed at the Hospital for Sick Children in Toronto.
Warrant for Post-Mortem Examination, January 13, 1996, Appeal Book, vol. 1, p. 9
13. Dr. Charles Smith commenced the autopsy at 10:16 a.m. on Wednesday, January 24, 1996. He had Joshua’s body x-rayed again and at 11:16 a.m, advised S/Sgt. MacLellan that the x-rays showed a possible second fracture. The location provided by Dr. Smith for this possible fracture was not recorded by S/Sgt. MacLellan. Dr. Smith briefed the police officers in attendance at the conclusion of the autopsy. S/Sgt. MacLellan recorded the briefing in his notes:
Dr. Smith in room, states as an asphyxial mode of death. The question is what set it off. Concerns about hemorrhaging behind ear and the fracture of the ankle. Unable to tell us when these occurred right now. Will eventually give us a range of time. May be not very definitive. States it is consistent that someone smothered the child but cannot say that it is not natural causes either if really examined. Injuries need to be explained. Cannot fit this into the latest definition of SIDS. States this is a very difficult case. States it would be unusual for the fracture to occur after death but cannot say it did not now. Minor swelling of the brain indicates that death was not immediate. Not seen in SIDS deaths. Minor hemorrhages on skull are suspicious but can’t say what caused them. Hemorrhage around ear is not post mortem, did not occur after death. I asked if it would take a lot of force to cause that injury around the ear. States “no”, that one blow could cause this injury around the ear, was on the left side. The blow that caused this injury could also have caused the swelling on the brain.
On February 8, 1996, officers met Dr. Smith again to get answers to some questions they had. During this meeting, Dr. Smith told them: “I think she killed him”.
Memo Book Notes of S/Sgt. G. MacLellan, Appeal Book, vol. 1, p. 267-269, 293
14. Before writing his autopsy report, Dr. Smith had the benefit of a report from Dr. Becker, a neuropathologist at the Hospital for Sick Children. In his report on his examination of Joshua’s brain, dated March 18, 1996, Dr. Becker concluded that there was: “No significant neuropathologic diagnosis”. Dr. Smith’s post-mortem report, dated March 21, 1996, recorded his Summary of Abnormal Findings. They were:
1. (Sudden and unexpected Death)
2. Asphyxia, with
1.1 Petechial hemorrhages of
1.1.1 Thymus
1.1.2 Pulmonary pleura
1.1.3 Epicardium
1.2 Congestion and edema of lungs
1.3 Hemorrhage in connective tissues of neck (microscopic)
1.4 Cerebral edema
3. Contusions of scalp, recent
4. Dural hemorrhage, recent and old
5. Avulsion fracture of distal left tibia, healing
Dr. Smith certified the cause of death as “Asphyxia”.
Report of Dr. Becker, March 18, 1996, Appeal Book, vol. 1, p. 10
Report of Post Mortem Examination, March 21, 1996, Appeal Book, vol. 1, p. 16;
TOMORROW: PART TWO;
Harold Levy...hlevy15@gmail.com;
