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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8. "THE FRESH EVIDENCE:"
Introduction:
31. In February, 2006, at the Appellant’s request, the Chief Coroner asked Dr. Pollanen, the Chief Forensic Pathologist for the Province of Ontario, to review the case. In due course, Joshua’s body was exhumed and re-autopsied. In his report on the case, Dr. Pollanen disagreed with many of Dr. Smith’s findings and concluded that there was no determined cause of death. He was of the opinion that the evidence could reasonably support a conclusion that death occurred by accidental asphyxial means consequent on an unsafe sleeping environment “without any influence of another party”. The case was also reviewed by a neuropathologist, and a second forensic pathologist who came to the same conclusions as Dr. Pollanen.
Report of Dr. Pollanen, March 28, 2006, Fresh Evidence Materials, Tab 4, p. 15
A. Events Leading Up to the Re-examination of the Case:
32. After her release, the Appellant returned to live with her husband, who had never believed that she had killed Joshua. The Appellant, who has a grade 9 education, did one year of a Business Administration course at Loyalist College in Belleville. In 2002, she and her husband separated. From 2004 to February, 2007, the Appellant was employed as a technical support professional by Stream International.
Affidavit of the Appellant, November 7, 2009, Fresh Evidence Materials, Tab 1, paras. 3, 22
33. In 2004, the Appellant began a relationship with Robert Scott, a co-worker at Stream International. In 2005, she became pregnant. Because she was on the Child Abuse Registry, she and Mr. Scott advised Hastings Children’s Aid Society of her pregnancy. She also contacted her trial counsel, Bruce Hillyer, who, on September 7, 2005, wrote a strongly supportive letter to the Children’s Aid authorities on her behalf. He wrote:
In representing Ms. Sherret I was quite perplexed about whether or not the Crown Counsel could establish that her child had indeed died as a result of an unlawful act.
The Crown’s case rested primarily on the opinion of Dr. Charles Smith, a forensic pathologist with the Centre of Forensic Sciences in Toronto, who at that time, had a very high reputation in his field.
In preparing the defence, I had commissioned opinions from Dr. Jaffe, a forensic pathologist from Toronto and I also consulted with American doctors, whom I spoke with on the telephone.
They were all deeply troubled by what Dr. Smith reported, but in essence, they deferred to him, with the exception of Dr. Jaffe, with respect to his conclusions and findings.
Faced with the prospect of a conviction for murder and all that flows from that, I vigorously represented Ms. Sherret and at the 11th hour the Crown’s office, no doubt for good reasons, elected to resolve this matter by way of a plea for the rarely used charge of infanticide, on the basis that at the time, Sherry was suffering from post-partum depression.
This compromise between the Crown and defence was seen as a way out for both sides - the Crown fearing they couldn’t get a conviction of any kind and the defence fearing that a conviction for murder while not justified would result in a lengthy period of incarceration.
(Emphasis in original)
A worker at the Hastings Office was assigned to the case. On September 29, 2005, the Appellant gave birth to a healthy daughter, Madison.
Affidavit of the Appellant, November 7, 2009, Fresh Evidence Materials, Tab 1, para. 21
Affidavit of Bruce Hillyer, November 9, 2009, Fresh Evidence Materials, Tab 2, para. 11
Letter from Bruce Hilllyer to “To Whom It May Concern”, September 7, 2005, Appeal Book, vol. 2, p. 371
34. One month later, on November 1, 2005, the Chief Coroner announced that he was conducting a review of criminally suspicious and homicide cases, dating back to 1991, in which Dr. Charles Smith had performed an autopsy or provided an opinion. The Chief Coroner noted that “concerns [had been] raised about the conclusions reached in a number of cases where Dr. Smith was either the primary or a consultant pathologist.” He announced that 44 cases were to be reviewed (a number later revised to 45) by a team of “external” pathologists. He said:
The reviewers will be asked to provide their opinions on the following:
First, whether they agree that the important examinations were conducted;
Second, whether they agree with the facts reported as arising from these examinations; and
Finally, whether in their opinion, the conclusions reached with respect to the cause of death are supported by the materials available for review.
One of the cases to be reviewed was Joshua’s case. Five pathologists were chosen to participate in the review:
· Dr. John Butt (Vancouver)
· Professor Christopher Milroy (Sheffield, England)
· Professor Helen Whitwell (Birmingham, England)
· Professor Jack Crane (Belfast, North Ireland)
· Professor Pekka Saukko (Helsinki, Finland)
See Backgrounder “Review of Criminally Suspicious and Homicide Cases Where Dr. Charles Smith Conducted Autopsies or Provided Opinions”, November 1, 2005, Appeal Book, Vol. 2, p. 418
35. In the meantime, from Madison’s birth in September, the Appellant had been forbidden by the Children’s Aid Society from ever being alone in her presence. Madison’s father, and his parents, were the primary “supervising” caregivers. An Assessor was appointed by Hastings CAS to provide an opinion on the case. On January 22, 2006, the Assessor provided a 41 page report which concluded as follows:
It is recommended that the Hastings Children’s Aid Society continue to supervise this family, at minimum for the next year of Madison’s life, to ensure the family continues to maintain the condition that Ms. Robinson is not left unsupervised with Madison.
. . . . .
This has been a most difficult matter to assess given the seriousness of the situation. It is hoped that Ms. Robinson will see this plan as the “second chance” she has been praying for even though it is not believed she can be unsupervised with the child. I wish them the best in their future endeavours.
Despite the Assessment Report, Hastings CAS still considered it necessary, now that Madison was approximately the same age as Joshua had been when he died, to seek a Court order excluding the Appellant from the family home for at least one year, with Madison remaining in the custody of her father. The Application was scheduled to be heard in Family Court in Belleville on February 22, 2006.
Affidavit of the Appellant, November 7, 2009, Fresh Evidence Materials, Tab 1, para. 22
36. In February, 2006, the Appellant telephoned the Association in Defence of the Wrongly Convicted (AIDWYC) and asked for assistance. On February 14, 2006, she was interviewed by counsel. A letter was sent the same day to the Chief Coroner, Dr. Barry McLellan, requesting an immediate review of Joshua’s case . The letter concluded with the following request:
On February 22, 2006 a court proceeding is scheduled in Belleville at which time the Children’s Aid authorities will be seeking to persuade the Family Court that Ms. Sherret should be removed from the family home for at least one year, giving sole custody to Madison’s father for at least one year. Neither Madison’s father nor Ms. Sherret want this to happen.
It is the death of Joshua and Ms. Sherret’s alleged responsiblity for it which are the sole cause for the Children’s Aid position regarding Madison. Consequently, a review of the cause of Joshua’s death in 1996 acquires huge importance in the Children’s Aid position and the Court’s decision on February 22.
The external review of the pathology of Joshua’s death is most welcome but will inevitably take some time, perhaps a year or more.
May I therefore request that your office conduct its own review of Joshua’s death forthwith because of the urgency of the matter. If Joshua died of natural causes, as AIDWYC believes he likely did, Ms. Sherret may be about to become the victim of a third miscarriage of justice. Madison will become a victim too.
If you were able to conduct such a review, perhaps you could let me know in writing as to the likely date for its conclusion so that I can forward your letter to Ms. Sherret’s family law counsel in Belleville. He can then present it to the Court on February 22 and request an adjournment of the Family Court proceedings until your internal review has been completed.
On February 16, 2006, Dr. McLellan agreed to have the Appellant’s case reviewed internally forthwith, and advised that it would likely take eight weeks for the review to be completed. Hastings CAS thereupon agreed to an adjournment of their application pending in the Family Court.
Affidavit of the Appellant, November 7, 2009, Fresh Evidence Materials, Tab 1, para. 24
Letter from Appellant’s counsel to Dr. McLellan, February 14, 2006, Appeal Book, vol. 2, p. 373
Letter from Dr. McLellan to Appellant’s counsel, February 16, 2006, Appeal Book, vol. 2, p. 375
Letter from Robert Green to Appellant’s counsel, February 23, 2006, Appeal Book, vol. 2, pp. 393
B. Dr. Pollanen’s First Report:
37. On March 28, 2006, Dr. Michael Pollanen, after reviewing all available materials on the case, prepared his first report on Joshua’s death. In his report, Dr. Pollanen recorded a number of relevant findings.
(i) The skull fracture reported by Dr. Smith
38. Dr. Pollanen expressed the opinion that there was no skull fracture, and that Dr. Smith had simply observed a section of Joshua’s developing cranial suture under the microscope. He continued:
In my view, it would be unsafe to base any decision-making on the opinion that a skull fracture was present.
For the avoidance of doubt on this, Dr. Pollanen recommended that Joshua’s body be exhumed.
My best advice is that the skull ‘lesion’ is most likely a developing cranial suture. But, since there could be lingering doubt on this important issue, I believe an exhumation is justified. (emphasis in original)
Report of Dr. Pollanen, March 28, 2006, Fresh Evidence Materials, Tab 4, pp. 11-14
(ii) The neck hemorrhages reported by Dr. Smith
39. Dr. Pollanen examined microscopically the sections of Joshua’s neck in which Dr. Smith had reported hemorrhages were present. Dr. Pollanen found the “hemorrhages” to be post-mortem artefacts created by Dr. Smith during the autopsy when he dissected Joshua’s neck. Dr. Pollanen wrote:
But, these ‘hemorrhages’ are positioned along the periphery of the tissue and are adjacent to planes of dissection of the neck. On this basis, these hemorrhages are dissection-related artefacts, rather than injuries. In my opinion, there is no safe inference that can be made on these findings, i.e., these findings are not evidence of neck compression.
Report of Dr. Pollanen, March 28, 2006, Fresh Evidence Materials, Tab 4, p. 14
(iii) The ankle fracture:
40. Dr. Pollanen also observed the microscopic slides taken from Joshua’s left tibia (ankle). He wrote in this regard:
This represents a healing injury to the left ankle. How the injury occurred cannot be determined from the autopsy findings. A twisting or distracting motion on the ankle most likely caused the injury. This may have been an injury caused by the actions of another person, or by an accidental mechanism.
Classically, the metaphyseal fracture is considered to be an injury often found in cases of child abuse. But, in this case the injury is isolated. It is not part of a wider spectrum of skeletal injury such as multiple rib fractures of varying age, or multiple bilateral metaphyseal fractures involving the knees and other joints. On this basis, it is difficult to clearly conclude that the isolated metaphyseal fracture is an injury related to abuse or maltreatment.
Report of Dr. Pollanen, March 28, 2006, Fresh Evidence Materials, Tab 4, p. 14
(iv) Dr. Pollanen’s conclusions as to the cause of death:
41. Dr. Pollanen concluded that no definitive cause of Joshua’s death could be determined. He found no evidence of a homicidal cause of death:
Specifically, there is not positive evidence to support manual compression of the face or neck as the cause of death, since no injuries are present.
He further noted:
But, some forms of homicidal mechanical asphyxia in infants may leave little or no evidence at autopsy (e.g., suffocation or smothering) and cannot be excluded on the basis of autopsy findings alone.
SIDS was excluded as a diagnosis due to the presence of the ankle fracture.
Report of Dr. Pollanen, March 28, 2006, Fresh Evidence Materials, Tab 4, p. 14
42. Dr. Pollanen ascribed the cause of death as “unascertained” but postulated a “readily [explicable]” cause of death. He first set out his understanding of Dr. Smith’s conclusions in his preliminary hearing testimony; that death likely resulted from homicidal asphyxiation. Dr. Pollanen next set out why he disagreed with this diagnosis:
1. Based on the available information, it is unsafe to conclude that there is a skull fracture.
2. There is no neck injury.
3. There are no facial or conjunctival petechial hemorrhages.
4. There is a hazardous sleeping environment that readily explains death on an accidental basis.
Dr. Pollanen explained at length how Joshua’s hazardous sleeping environment may have led to his death:
An important consideration in this case is the scene, since it may have important implications for the cause of death. Specifically, the infant was found face-down in a make-shift crib. The ‘crib’ was constructed from a playpen using a sleeping bag and a quilt as a sleeping surface. In addition, Sherry Sherret indicated to the police that “the comforter was bunched up at the end [of the playpen] around his head and the infant had only recently been sleeping in the playpen rather than a bassinet. Based on previous thinking, this could very well be a significant factor to explain death. Forensic pathologists have become increasingly aware that unsafe sleeping environments are often associated with sudden death in infancy.
Dr. Pollanen concluded:
In my view, the scene and autopsy findings can reasonably support the conclusion that death occurred by an accidental asphyxial means in an unsafe sleeping environment, without any influence of another party. The precise situational factors that may have been involved in this case include both head covering by bedding and prone positioning on a soft depressible surface. Thus, asphyxia may well have occurred by re-breathing in a microenvironment with concomitant over heating. (emphasis in original)
Report of Dr. Pollanen, March 28, 2006, Fresh Evidence Materials, Tab 4, pp. 14-16
C. The Exhumation:
43. Further to Dr. Pollanen’s recommendation that Joshua’s body be exhumed, permission was immediately granted by the Appellant. The exhumation took place on May 29, 2006. Pollanen conducted the re-autopsy. In his report dated August 10, 2006, he referred to his previous review of the case in March:
At the request of the Chief Coroner for Ontario, I undertook a review of the forensic pathology of this case. The review was broadly-based and included all available medical evidence stemming from the death investigation. Based on the materials provided, I formed different conclusions to Dr. Smith concerning the cause and mechanism of death.
Dr. Pollanen noted that the relevance of the exhumation went to the “skull fracture issue” only. He found the exhumed skull to be in “satisfactory condition” and to be “adequately preserved for analysis”. He then provided a concise and definitive conclusion:
There is no skull fracture present in the exhumed skull.
Report of Dr. Pollanen, August 10, 2006, Fresh Evidence Materials, Tab 5, pp. 4, 9
Correspondence between Appellant’s Counsel and Chief Coroner, Appeal Book, vol. 2, p. 375-379
44. Dr. David Ramsay, a neuropathologist at the University Hospital, London Health Sciences Centre, was retained by the Appellant to attend the post-exhumation autopsy. He set out his conclusions in a report as follows:
There is no evidence of a skull fracture. The histological ‘abnormalities’ that Dr. Smith interpreted as a skull fracture were simply the normal appearance of a joint between two skull bones.
Dr. Ramsay went on to consider some of Dr. Smith’s other findings:
The abnormalities of the scalp remain unexplained and no tissue is available to allow their approximate age to be determined under the microscope. Therefore, Dr. Smith’s suggestion that they could have been caused by resuscitation efforts, while reasonable, is unverifiable. The minor abnormalities in the left temporalis muscle, while they might be haemorrhages, could also be artefacts. There is no evidence that these abnormalities had a major or fatal effect on the central nervous system.
There is evidence of recent minor intradural, subdural and subarachnoid bleeding. These are most likely to be artefacts.
There is evidence of old minor subdural bleeding, but this is a common finding in infants who die of natural causes with no history of a head injury.
There is no evidence of cerebral oedema (i.e. brain swelling). The features that led Dr. Smith to this conclusion are normal findings (i.e. the brain weight is normal, the size of the cerebral cortex ventricles is normal and tonsular notches may be a normal finding.) Moreover, the photographs show no evidence of flattening of the surface of the brain.
In Dr. Ramsay’s opinion:
There is no neuropathological explanation for Joshua’s death.
Report of Dr. Ramsay, July 23, 2007, Fresh Evidence Materials, Tab 8, pp. 5-6
The Termination of the Children’s Aid Proceedings
45. On August 24, 2006, the Appellant’s counsel wrote to Children’s Aid, and enclosed Dr. Pollanen’s post-exhumation report. He asked:
In all the circumstances would you consider removing the restrictions on Ms. Robinson’s custody of Madison. It seems to me that the validity of her infanticide conviction is now sufficiently doubtful that removal of the restrictions would be in the interests of justice, and in the interests of Madison and her mother. The present situation places a considerable strain on Ms. Robinson even though she has been dealing with it remarkably well.
In April, 2007, the CAS notified the Appellant that they were no longer seeking to supervise her care of Madison and, on April 11, 2007, Madam Justice Malcolm of the Ontario Court of Justice ordered the CAS Supervision Order to be terminated.
Letter from Appellant’s counsel to Hastings C.A.S., August 24, 2006, Appeal Book, vol. 2, p. 405
D. Dr. Jack Crane’s Review of the Case:
46. The external pathologists who reviewed 35 of Dr. Smith’s cases conducted their reviews in December, 2006. Professor Jack Crane, the state pathologist for Northern Ireland, was assigned the task of reviewing Joshua’s case, and completed a report. In his December 5, 2006 Autopsy Report Review Form, he wrote:
(1) Dr. Smith had not properly described Joshua’s injuries.
(2) Dr. Smith had failed to note a natural disease of bronchopneumonia that Joshua may have been suffering at death.
(3) Dr. Smith’s description/interpretation of Joshua’s injuries did not match the autopsy photographs.
(4) Dr. Smith’s description/interpretation of Joshua’s injuries did not match the histology (microscopic examinations) of the case.
(5) Dr. Smith’s testimony at the preliminary hearing was not reasonable and balanced.
(6) The cause of death opinion provided by Dr. Smith in his testimony was not the same as that provided in his Autopsy Report.
(7) The cause of death given by Dr. Smith was not reasonable based on the available information.
Professor Crane concluded:
The exhumation assisted in the confirmation/or rebuttal of the skull fracture and casts serious doubts on the view that this was a homicide.
The presence of inflammatory changes in the lungs may represent an early respiration infection, which could have contributed to sudden and/or unexpected death.
The playpen where the child died posed a real risk of death from accidental suffocation and this possibility was not adequately taken into account.
Prof. Crane’s Autopsy Review Form, December. 5, 2006, Fresh Evidence Materials, Tab 10, p. 2
47. Professor Crane prepared a more comprehensive Medico-Legal Report in 2007 at the request of the Goudge Inquiry. He disagreed with Dr. Smith’s diagnosis of asphyxia as the cause of death:
The autopsy report prepared by Dr. Smith was quite detailed but is lacking any form of discussion or opinion as to how the diagnosis of asphyxia, as the cause of death, was determined. It seems most likely that it was on the basis of the finding of petechial haemorrhages on the thymus, pleura and pericardium, congestion of the lungs and microscopic haemorrhages in the connective tissue of the neck. Furthermore, a diagnosis of asphyxia is vague and non-specific and should properly be provided in the context of the mechanism by which it was produced, e.g. compression of the neck.
In my review of the material in this case, including the autopsy photographs and microscopic slides, I can find no evidence to substantiate a diagnosis of asphyxia. The finding of petechial haemorrhages (pinhead-sized) spots of bleeding on the surfaces of the internal organs is a common finding in all types of infant deaths and is of no significance whatsoever. In many cases petechiae on the internal organs such as the thymus etc. may represent post-mortem congestion due to posture (face-down position) of the body after death. Congestion of the lungs merely represents a terminal event and again is of no significance in diagnosing asphyxia. The microscopic foci of bleeding in the sections taken from the internal neck structures are minute and only represented the edges of the sections and can be discounted as being of any significance. Thus it is my opinion that based on the autopsy findings described by Dr. Smith, there is no objective pathological evidence to support a diagnosis of asphyxia. (emphasis in original)
Like Dr. Pollanen, Professor Crane could not come up with a definite cause of death, and agreed that Joshua’s unsafe sleeping environment may well have caused his death:
Having reviewed this case I am of the opinion that, based on the autopsy findings, no definite cause of death can be identified. The location of the death, specifically in the playpen where there were blankets and quilts, and the face-down sleeping position raises concerns about the possibility of accidental suffocation. Indeed in a number of series of investigation (sic) of sudden deaths in infancy, unsafe sleeping environments, including co-sleeping in an adult bed or on a sofa, have been identified as significant factors. Conclusive proof in such cases, and indeed specifically in this case, is usually lacking, thereby precluding a definitive cause of death being given. There was no evidence in my opinion which would indicate compression of the neck. Although deliberate suffocation may not be associated with any findings at autopsy, there would appear to be no other evidence to support such a diagnosis.
There was, in Professor Crane’s opinion, no evidence of a skull fracture - “Dr. Smith misinterpreted the microscopic sections which had been taken across the suture”. In addition, Professor Crane was highly critical of Dr. Smith’s testimony at the preliminary inquiry:
It is my view that parts of Dr. Smith’s testimony to the court were misleading. Whilst he does concede that he cannot be sure of the cause of death he uses, what I consider to be inappropriate language, terms such as “If I was a betting man, I would bet that it was”. (Reference to death being non-accidental). He also commented “I am certainly highly suspicious of that”. (Referring to suffocation). Also in his evidence he makes reference to neck haemorrhage as being worrying and would increase the likelihood of a non-accidental etiology whereas in my opinion this was no more than an artefactual finding.
The evidence presented by Dr. Smith was unscientific, speculative and in my opinion prejudicial.
Medico-Legal Report of Professor Crane, Fresh Evidence Materials, Tab 11, pp. 3-6
48. In November, 2007, Professor Crane testified at the Goudge Inquiry as a member of a panel of three external reviewers and presented his opinions on the case in the same manner as in his two reports. He told the Commissioner that he considered the cause of death as “unascertained”. He explained that there was “a significant possibility that the death could have been caused by some form of suffocation in an unsafe sleeping environment.” He continued:
What I’m saying is there could be a range of possibilities, but what we have in this particular case, is a child being found in a face-down position in an unsafe sleeping environment where there were quilts and blankets.
And we do know that in such a position, infants may be susceptible to airway obstruction, which could result in death.
The Commissioner then asked Professor Crane:
Q. Do you mean by, “significant possibility,” likelier than any other explanation you can offer, based on the pathology?
A. Well, it’s not based on the pathology because the pathology hasn’t shown anything. It’s based on, if you like, the environment and the circumstances where that child was found.
Q. That is what I was getting at. It is not based on the pathology, but offering that opinion, would you be offering it as an effective differential explanation that is more likely than any other?
A. Yes, I think I would, Commissioner, yes.
The other two external reviewers, Dr. Butt and Dr. Milroy, who shared the stage with Professor Crane, agreed with Professor Crane’s findings.
Evidence of Professor Crane, Dr. Butt and Dr. Milroy, Inquiry into Pediatric Forensic Pathology in Ontario, November 19, 2007, Fresh Evidence Materials, Tab 12, p.247
Evidence of Professor Crane, Dr. Butt and Dr. Milroy, Inquiry into Pediatric Forensic Pathology in Ontario, November 22, 2007, Fresh Evidence Materials, Tab 13, p. 90
Harold Levy...hlevy15@gmail.com;
