THE XUAN PENG CASE: ONTARIO COURT OF APPEAL ORDERS NEW TRIAL IN BATHTUB DROWNING CASE: PATHOLOGIST'S EVIDENCE NOT FULLY CONVEYED TO JURY BY JUDGE;

"THE HIGHER COURT SAID THAT BEFORE THE JURY BEGAN DELIBERATING, JUSTICE MARY LOU BENOTTO, THE JUDGE IN THE SUPERIOR COURT TRIAL, GAVE THEM AN "INCOMPLETE" REVIEW OF EVIDENCE GIVEN BY A PATHOLOGIST.

THE PEDIATRIC PATHOLOGIST HAD TESTIFIED THAT WHEN SUBMERGED UNDER WATER, A PERSON GENERALLY LOSES CONSCIOUSNESS WITHIN A MINUTE TO THREE MINUTES, BUT IT CAN HAPPEN IN AS LITTLE AS 30 SECONDS.

BUT WHEN BENOTTO REVIEWED THE EVIDENCE, SHE REMINDED THE JURY ONLY ABOUT THE PATHOLOGIST'S REMARKS ABOUT IT TAKING A FEW MINUTES TO LOSE CONSCIOUSNESS, AND LEFT OUT THE "AS LITTLE AS 30 SECONDS" PART."

DONOVAN VINCENT: THE TORONTO STAR;

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PUBLISHER'S NOTE: The Ontario Court of Appeal's unanimous decision to order a new trial for Xuan Peng puts the focus on the judge's duty to put the pathologist's evidence fully to the jury. The decision appears to recognize the reality that jurors may defer to the judge's charge on the pediatric pathologist's evidence because it is so technical in nature.

"A Toronto woman found guilty of second-degree murder in the bathtub drowning of her 4-year-old autistic daughter has won a new trial after Ontario's Court of Appeal quashed her conviction," the Toronto Star story by reporter Donovan Vincent began, under the heading "New trial for dead girl's mom," and the sub-heading "Appeal court judge rules that trial judge erred in charge to jury."

"In a 3-0 decision, the appeal court ruled that the judge in last year's murder trial of Xuan Peng made an error in her instructions to the jury that "effectively precluded" the jurors from considering a manslaughter verdict," the Wednesday December 30, 2009 story continues.

""I believe that manslaughter was a viable verdict and the appellant (Peng) was entitled to have the issue of her intent and the evidence surrounding it put fully and fairly to the jury. Unfortunately it was not," wrote Justice Michael Moldaver in the appeal court decision.

Peng was charged after her daughter Scarlett was found lifeless in the bathtub of their Toronto home on July 12, 2004. She was naked, with vomit on her face.

The trial heard that Scarlett, an only child, had been declared autistic after months of testing and at age 4 could not speak.

The trial was also told that on the day she died her parents were informed that while Scarlett would never function normally, she was only mildly autistic and there was potential for major improvement.

The day she died, Scarlett had been naughty all afternoon, which her mother found very frustrating, according to evidence in the trial. Peng, who suffered depression after her daughter's birth and was diagnosed with bipolar disorder in 2002, was alone with her daughter that afternoon for nearly four hours.

Prosecutors in the case argued Peng, unable to cope with Scarlett, drowned her daughter in a moment of frustration and rage, in order to relieve herself of a burden. At 20 months, the girl had been sent to China for two and a half years to live with her grandmother because Peng found it difficult to care for her.

But Peng's lawyer argued the death was the result of an accident in which the mother played no part. Peng had put her daughter down for a nap in their Toronto home around 6 p.m., but Scarlett ended up – unknown to her mom – getting into a tub of water that had been filled to clean kitchen utensils and a shower curtain, according to Peng's evidence.

There were no significant bruises or injuries to Scarlett or Peng.

After a jury deliberated for more than two days and found Peng guilty of second-degree murder, she was sentenced in March of last year to life in prison with no chance of parole for 10 years – with Peng's mother and husband protesting her innocence afterward.

The Court of Appeal quashed the conviction on Christmas Eve.

The higher court said that before the jury began deliberating, Justice Mary Lou Benotto, the judge in the Superior Court trial, gave them an "incomplete" review of evidence given by a pathologist.

The pediatric pathologist had testified that when submerged under water, a person generally loses consciousness within a minute to three minutes, but it can happen in as little as 30 seconds.

But when Benotto reviewed the evidence, she reminded the jury only about the pathologist's remarks about it taking a few minutes to lose consciousness, and left out the "as little as 30 seconds" part.

"Suffice it to say that if the jury were to accept that it took `a few minutes' for Scarlett to lose consciousness, that would not bode well for the appellant on the issue of intent," Moldaver writes.

"Specifically, it would cut away from the notion that she acted ... in the heat of the moment, quickly and impulsively, without giving much or any forethought to the consequences of her actions. That of course, was the basis upon which the jury could find the appellant guilty of manslaughter," she adds.

While second-degree murder carries a life sentence with a minimum requirement of 10 years in prison before parole eligibility, manslaughter generally carries lighter sentences.

Peng could seek bail while awaiting a new trial. Her lawyer John Mann declined to comment Tuesday."

The story can be found at:

http://www.thestar.com/news/gta/article/744085--new-trial-for-dead-girl-s-mom

Harold Levy...hlevy15@gmail.com;