TAMMY MARQUARDT RETROSPECTIVE: PART FOUR; THE SUPREME COURT OF CANADA FACTUM; FRESH EVIDENCE;

"THE APPLICANT IS A LIKELY VICTIM OF A MISCARRIAGE OF JUSTICE. DR. SMITH PLAYED AN IMPORTANT ROLE IN HER TRIAL AND PRESENTED SEEMINGLY CONVINCING EVIDENCE TO THE JURY THAT KENNETH WAS THE VICTIM OF A HOMICIDE, THROUGH STRANGULATION OR SMOTHERING. IT IS NOW APPARENT THAT THERE WAS NO SCIENTIFIC FOUNDATION FOR THESE CRITICAL FINDINGS. IN THESE CIRCUMSTANCES, IT IS IN THE INTERESTS OF JUSTICE FOR HER CASE TO BE RECONSIDERED BY A COURT OF COMPETENT JURISDICTION."

FROM TAMMY MARQUARDT'S "FACTUM": (A DOCUMENT FILED IN THE SUPREME COURT OF CANADA IN SUPPORT OF HER APPLICATION TO HAVE HER SECOND-DEGREE MURDER CONVICTION SENT BACK TO THE ONTARIO COURT OF APPEAL FOR CONSIDERATION OF FRESH EVIDENCE);

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PUBLISHER'S NOTE: Like Bill Mullins-Johnson, Sherry Sherret, two women who cannot be identified by name and Dinesh Kumar - all victims of Dr. Charles Smith who have been acquitted by the province's highest court often years after their conviction - Tammy Marquardt will be asking the Ontario Court of Appeal to clear her name. (At least five other similar appeals are pending). Ms. Marquardt's appeal is set for Thursday February 10, 2011. In anticipation of this important date I am running a retrospective of 14 posts which ran previously on this Blog.

HAROLD LEVY: PUBLISHER; THE CHARLES SMITH BLOG;

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Monday, March 9, 2009
TAMMY MARQUARDT; (4); STILL BEHIND BARS; ANOTHER MISCARRIAGE OF JUSTICE ATTRIBUTED TO DR. CHARLES SMITH; APPLICATION TO SUPREME COURT; SECTION TWO;

BACKGROUND:

TAMMY MARQUARDT STILL LANGUISHES BEHIND BARS IN SPITE OF NUMEROUS FORENSIC OPINIONS THAT THE NOW DISCREDITED DR. CHARLES SMITH'S EVIDENCE WAS TERRIBLY WRONG; MS. MARQUARDT IS THE ONLY ONE OF DR. SMITH'S VICTIMS STILL BEHIND BARS - HAVING SERVED 13 YEARS OF HER LIFE-SENTENCE FOR SECOND-DEGREE MURDER OF HER SON (2 1/2 YEAR-OLD SON KENNETH); SHE IS ASKING THE SUPREME COURT OF CANADA TO SEND HER CONVICTION BACK TO THE ONTARIO COURT OF APPEAL FOR CONSIDERATION OF FRESH EVIDENCE. THE "FACTUM" SHE HAS FILED WILL ALLOW OUR READERS TO FOLLOW UP-COMING DEVELOPMENTS IN THE CASE, INCLUDING MS. MARQUARDT'S BAIL APPLICATION WHICH IS SET FOR MARCH 12TH; TAMMY MARQUARDT - AND WILL PROVIDE INSIGHTS INTO A TYPICAL SMITH "ASPHYXIATION" CASE. BECAUSE OF ITS LENGTH, I AM PUBLISHING THE DOCUMENT CONSECUTIVELY IN TWO PARTS; THE FIRST PART PROVIDES A FACTUAL SETTING; THE SECOND SETS OUT THE "FRESH EVIDENCE" CONSIDERATIONS UNDERLYING HER APPLICATION TO CANADA'S HIGHEST COURT; MS. MARQUARDT IS BEING ASSISTED BY THE ASSOCIATION IN DEFENCE OF THE WRONGLY CONVICTED WHICH HAS ALREADY HELPED OBTAIN FREEDOM AND VINDICATION FOR SEVERAL OF DR. SMITH'S VICTIMS AND HAS PLAYED A MAJOR ROLE IN THE GOUDGE INQUIRY INTO ONTARIO'S PEDIATRIC FORENSIC PATHOLOGY SYSTEM;
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The factum continues with the following description of the fresh evidence considerations in the case, beginning with a terse description of the "points in issue." (Readers are referred to some fascinating notes appended at the end of the "factum" following the list of authorities);

34.

Events have transpired in recent years that demonstrate Dr. Charles Smith regularly provided incorrect opinions as to the cause of death in suspicious death cases (see, for example, R. v. Trotta, [2007] 3 S.C.R. 453, R. v. Mullins-Johnson (2008), 228 C.C.C. (3d) 505 (Ont.C.A.) (and the Goudge Inquiry Report) . As regards the Applicant’s specific case, and Dr. Smith’s opinion that asphyxia was the cause of Kenneth’s death, these opinions have now been refuted by a total of six pathologists. Their opinions constitute admissible fresh evidence that meets the Palmer tests. Accordingly, the Applicant’s conviction should be remanded to the Court of Appeal for review to determine whether her second degree murder conviction should be set aside on the ground that it constitutes a miscarriage of justice.



PART III

THE FRESH EVIDENCE AND THE LAW


Introduction


35.

Commencing in 1999, public concerns over Dr. Smith’s work began to develop and, by 2005, reached a crescendo. On November 1, 2005, the Chief Coroner for the Province of Ontario announced a review of criminally suspicious and homicide cases, dating back to 1991, in which Dr. Smith had performed an autopsy or provided an opinion. Forty- five cases were subsequently identified and reviewed by a panel of internationally recognized forensic pathologists, namely:

● Professor Pekka Saukko, a Professor of Forensic Medicine at the University of Turku in Finland;


● Dr. John Butt, a forensic pathologist in British Columbia;

● Professor Christopher Milroy, a consultant forensic pathologist to the British Home Office;


● Professor Helen Whitwell, a Professor of Forensic Pathology at the University of Sheffield in England; and


● Professor Jack Crane, the State Pathologist for Northern Ireland.



The results of the review were released on April 19, 2007. The Chief Coroner reported that, in 20 of the 45 cases, the reviewers disagreed with the opinions of Dr. Smith. The Applicant’s case was one of these 20 cases. Dr. Saukko was the primary reviewer of her case, and his opinions were supported by his four colleagues. More recently, Dr. Avis, the Chief Medical Examiner for the Province of Newfoundland and Labrador, provided a complete report on the case. The expert evidence on the case is now unanimous: the cause of Kenneth’s death is undetermined, and included within the potential causes of death are a number of natural causes including a seizure disorder.


A. Dr. Saukko’s Review of Kenneth’s Case in 2006-2008


36.

Pursuant to the Chief Coroner’s review, Dr. Saukko prepared a point-form report on Kenneth’s autopsy on December 14, 2006. In it, he concluded:

There is not sufficient evidence for the diagnosis of asphyxia to be made. It cannot be based only on petechial hemorrhages of thymus, pulmonary pleura and epicardium which are non-specific findings. The cause of death should be given as unascertained. Not apparent from records whether toxicology was performed.


In October, 2007, Dr. Saukko prepared a full medico-legal report on Kenneth’s death at the request of the Goudge Inquiry and subsequently testified about his findings at the Inquiry in 2008. According to Dr. Saukko, Dr. Smith’s work on the case, and his autopsy report, were deficient, his determination on the cause of death was in error, and his testimony at the Applicant’s preliminary inquiry and trial was unprofessional and misleading. Dr. Saukko’s opinions on the Applicant’s case were adopted in full, and unanimously, by the other four reviewing pathologists when they gave their evidence at the Goudge Inquiry.


37.

According to Dr. Saukko, Dr. Smith’s diagnosis of asphyxia was without scientific foundation. His findings were not indicative of a homicidal death. He wrote:


Dr. Smith’s testimony at the preliminary hearing is the first time to learn about his reasoning as to the cause and mechanism of death. The testimony is very contradictory, unscientific and confusing. His diagnosis of “asphyxia”, without giving the mechanism by which it has been thought to have caused the death, is based solely on the occurrence of petechiae in thymus, lungs and epicardium. Findings which are generally known to be non-specific but which according to Dr. Smith are significant and “…sufficient to make a diagnosis of asphyxia.”


After observing that Dr. Smith had not completely ruled out death by seizure, Dr. Saukko concluded:

It is illogical and completely against scientific evidence based reasoning to give any cause of death if there is one or several causes that cannot be reasonably ruled out and, in such a case, the death has to be classified accordingly as unascertained.


Dr. Saukko reiterated that “petechial hemorrhages of the thymus and the serous membranes such as pleura or pericardium are non-specific”, i.e. there were possible causes for the condition that were not indicative of homicide.


38.

Dr. Saukko’s concerns in the case were heightened by the harvesting of several of Kenneth’s organs prior to autopsy. He wrote:

When one or more whole organs or organ systems have not been investigated it means that possible pathology within these organs has not been excluded leaving more room for uncertainty and speculation and diminishing the value of the autopsy. This is neither in the interest of the defendant nor the general public as objective and professional cause of death investigation is a prerequisite for a fair criminal investigation and trial and one of the cornerstones of trust in any judiciary.


He further concluded:

Therefore, as a rule, the cause of death cannot be reliably established without a complete autopsy with ancillary investigations such as complete histological examination of all major organs, microbiology, virology and full toxicological investigation.


As Dr. Saukko observed, there had been no examination of several major organs and no post-mortem toxicology investigation had been undertaken in the case.


B. Dr. Simon Avis’s Review of Kenneth’s Case


39.

Dr. Simon Avis is the Chief Medical Examiner for the Province of Newfoundland and Labrador. The Applicant requested that he provide an opinion on the case. In his nine page report, dated October 30, 2008, Dr. Avis disagrees with Dr. Smith’s post-mortem report that Kenneth died from “asphyxia”, and criticizes substantial portions of his trial testimony. Dr. Avis concludes his report by saying:

The cause of death should be presented as Undetermined

The manner of death should be presented as Undetermined

A seizure disorder cannot be excluded as a cause of death.

MCAD or a related metabolic error cannot be excluded as a cause of death.

A cardiac conduction defect cannot be excluded as a cause of death.

There is no evidence in the pathology to support a finding of “asphyxia”, whether by neck compression or suffocation. (original emphasis).



The Goudge Inquiry


40.

On April 25, 2007, the Province of Ontario established a Commission of Inquiry into Pediatric Forensic Pathology in Ontario. The Commission’s Terms of Reference established it as a systemic review of pediatric forensic pathology in the Province. In fulfilling this task, the Commissioner considered it necessary to examine Dr. Smith’s work in criminally suspicious cases which had begun in 1981 and concluded in 2001. A year before Kenneth’s death, Dr. Smith became the first director of the Ontario Pediatric Forensic Pathology Unit (OPFPU). Yet, as the Commissioner noted in his report, Dr. Smith “has neither formal forensic pathology training nor board certification in that field”. In short, he was a pediatric pathologist, not a forensic pathologist.

Goudge Report, Inquiry into Pediatric Forensic Pathology in Ontario, pp. 44-47, 116-119


41.

It can be fairly stated that the Commissioner was highly critical of Dr. Smith’s work from a number of perspectives. He catalogued a litany of errors that Dr. Smith made in individual cases, from providing erroneous opinions as to cause of death, mishandling exhibits, misinterpreting post-mortem artefacts as pre-mortem injuries, failing to provide reports in a timely fashion, becoming an advocate for the Crown’s case, overstating his expertise and giving imbalanced evidence. The Commissioner then said:

Finally, Dr. Smith did not always testify with the candour required of an expert witness. In some cases, he made false and misleading statements to the court.


After giving two examples of this, the Commissioner continued:

These examples are troubling. It goes without saying that an expert witness giving evidence under oath should do so with complete candour and honesty. False and misleading statements should form no part of an expert witness’s evidence.


The Commissioner further noted that Dr. Smith “actively misled those who might have engaged in meaningful oversight of his work”. He concluded his remarks by saying:

Dr. Smith was adamant that his failings were never intentional. I simply cannot accept such a sweeping attempt to escape moral responsibility. The most obvious examples of conduct that belies Dr. Smith’s assertion were his attempts to frustrate oversight that I have reviewed. At those moments when the need for accountability and oversight might have become even more apparent to those in a position to do something about it, Dr. Smith was not above using deception to attempt to throw them off the trail.


Dr. Smith is a complex, multi-dimensional person. The terrible irony is that, in some ways, the negative attributes I have described were compounded by positive qualities. He was willing to take on difficult pediatric cases that his colleagues were not anxious to do. He has a sense of responsibility that led him to cooperate with the work of this Inquiry. In his evidence, he admitted many of his shortcomings that the evidence had laid bare. And, albeit much too late, he owned up to a great deal. In addition, the evidence is clear that others found him engaging. Support staff liked working with him, and many people found him a charismatic and effective speaker. As we now know, although he did so on the basis of terribly deficient training and fundamentally flawed practices, he appeared to be completely assured, and often, in circumstances where the science could not provide certainty. These sorts of qualities not only increased the risk he posed as an expert in the criminal justice system but tended to build an unwarranted trust in already lax overseers.


Such an expert can do much damage without effective oversight by those who must provide it and constant vigilance on the part of the participants in the criminal justice system who can protect the system against flawed expert evidence. None of that happened here. The challenge is to ensure that history does not repeat itself.


Goudge Report (supra), Chapter 8, “Dr. Smith and the Practice of Pediatric Forensic Pathology”


42.

The Commissioner spent some time dealing with the diagnosis of “asphyxia” as a cause of death. He criticized its use as a diagnosis. He noted Dr. Smith’s regular use of the term as a cause of death. He observed that the very kind of findings recorded by Dr. Smith in Kenneth’s case were non-specific:

...there is a problem with the basis on which asphyxia is diagnosed. Diagnostic criteria that were commonly used for establishing asphyxia – petechial hemorrhages in the thoracic viscera, congestion and edema of the lungs, cyanosis of the fingernails, and cerebral edema – are in fact non-specific findings. In other words, these findings can appear on a body for a variety of reasons, including, but in no way limited to, asphyxia. They are meaningless without more evidence and cannot properly be said to be diagnostic of asphyxia.


As early as 1974, forensic pathology textbooks were referring to those criteria as “obsolete”, in recognition of the fact that they were non-specific and therefore non-diagnostic. As a result, in the 1980s and 1990s, forensic pathologists should have been aware that certain findings, such as intrathoracic petechiae and congestion of the lungs, were non-specific and were insufficient on their own to substantiate the diagnosis of asphyxia.




The Commissioner considered Dr. Smith’s findings in nine cases (one of them being Kenneth’s):

Nonetheless, Dr. Smith determined that asphyxia was the cause of death in nine of the 18 cases the Commission examined in detail. In several others, he found that there was an asphyxial component to the death, but that it was not the cause of death. At the Inquiry, Dr. Smith testified that he was aware that certain findings, like petechial hemorrhages in the thoracic viscera, were non-specific and therefore not diagnostic of asphyxia. As a result, he said he diagnosed asphyxia only when he observed these non-specific findings at autopsy and when there was some other evidence to suggest an asphyxial mechanism of death. The latter took two forms: specific pathology findings, or a history suggesting asphyxia.


I have reviewed all nine cases and find that Dr. Smith adopted the approach he described in some cases, but not others. In some instances, he appeared to do exactly the opposite – he diagnosed asphyxia based solely on the presence of non-specific findings.


Goudge Report (supra) at pp. 148-152


43.

Later in his report, the Commissioner returned to the “asphyxia” issue. He wrote:

It is clear that a pathologist’s opinion about the cause of death, if it is not carefully expressed, can be a major source of misunderstanding. The best example that emerged from the Inquiry was the use of the term “asphyxia”. Dr. Smith opined that asphyxia was the cause of death for a number of the cases under review. Asphyxia, based on its Greek root, literally translates as “stopping of the pulse”. However, the evidence at this Inquiry demonstrated that the term has commonly been used to mean simply that the deceased stopped breathing or was deprived of oxygen. It has also been used frequently to denote mechanical asphyxia through the intervention of a third party. The latter meaning is radically different from the former, in that it generally implies non-accidental injury. One of the problems identified at the Inquiry was that Dr. Smith used the term “asphyxia” in inconsistent ways. At times he used it in its more inculpatory sense as indicating mechanical asphyxia through the intervention of a third party. At other times he used it in its more benign sense, although this distinction would not always be apparent to the police and others who received the opinions. The situation was compounded by Dr. Smith’s testimony. He sometimes explained what asphyxia meant in ways that were, at best, confusing and nearly incomprehensible. The varied meanings that can be given to the term asphyxia not only invite caution in its use but present a compelling argument to avoid its use altogether, if confusion and misunderstanding are to be avoided.


One of the Commissioner’s Recommendations reads as follows:

Recommendation 85


a) The use of the term “asphyxia” should be avoided as an articulated cause of death. If it must be used to describe the mechanism of death, it should be elaborated on to avoid confusion.


b) Forensic pathologists in Ontario should be educated as to the dangers associated with the term “asphyxia” and, under the auspices of the Chief Forensic Pathologist, reach a common understanding as to when it should and should not be used.


c) More generally, forensic pathologists should be careful to express their opinions in terms that are not susceptible to varied meanings, but that do elucidate the issues addressed by the opinions.


Goudge Report (supra) Recommendation 85 at pp. 408-410

1.

The Commissioner directly alluded to Kenneth’s case in his report on several occasions. He wrote:

● At the Inquiry, Dr. Smith denied that he ever allowed irrelevant or prejudicial information to affect his decision making in an individual case. It is clear, however, that in a number of cases he recorded irrelevant social history in his reports. For instance, in Kenneth’s case, Dr. Smith recorded in the Sick Kids final autopsy report that Kenneth’s mother’s husband, who was not Kenneth’s father, was not present when Kenneth’s body was found because he was with his girlfriend, who was giving birth to his baby. The reason he was not there has no relevance to the pathology, but hints at an adverse moral judgment.

. . . . .


● The evidence also shows that rather than candidly admitting the reasons for his delay [in producing reports], Dr. Smith unfortunately also often blamed others for his own failings. In Kenneth’s case, Dr. Smith produced his report of post-mortem examination in April 1994, six months after the autopsy. In September 1994, he testified at the preliminary hearing in the case. Defence counsel questioned him about that six month delay. Dr. Smith told the court that the main reason for the delay was a lack of administrative support at Sick Kids. He said, “thanks to the government cutbacks, I no longer have a secretary, so I have to actually type my own reports, and any report that gets out is because I have sat there at eight o’clock at night typing it myself.” He testified that “I have to do all the work myself.”


This explanation was simply not true. Dr. Smith never lost an assistant due to “government cutbacks” or otherwise. At no time was he required to type his post-mortem reports himself. Throughout the 1990s, he had administrative assistants available to him. They were diligent and more than willing to do the work assigned to them. In fact, Dr. Smith preferred to type his own reports.

. . . . .


● Dr. Smith also from time to time used language in his testimony that was loose and unscientific. Certain inappropriate expressions are found throughout his testimony. The language of “betting” is one of them. In Kenneth’s case, Dr. Smith testified that suffocation can occur without leaving any marks and that, if he were a “betting man”, he would say that suffocation was a better explanation for Kenneth’s death than manual or ligature strangulation.


The Commissioner wrote of “the dangers in delivering a preliminary opinion”:

● Once again, the evidence at the Inquiry is instructive. In Kenneth’s case, at the conclusion of the autopsy, Dr. Smith told police that there was nothing that would indicate an obvious cause of death, but he nonetheless characterized the cause of death as suffocation by obstruction of the airways. Kenneth’s mother was arrested several weeks thereafter, almost five months before Dr. Smith issued his post-mortem report, which included no such characterization. Dr. Pekka Saukko, who reviewed the case, testified that suffocation was not a reasonable conclusion (tentative or otherwise), as there was no pathology to substantiate it.


Goudge Report (supra) at pp. 39, 131, 170, 182-3, 188, 393, 396


2.

The Commissioner conducted a roundtable to discuss how to address potential wrongful convictions arising from Dr. Smith’s work. Ms. Mary Nethery, a director in the Ministry’s Criminal Law Division, was a member of the roundtable. She spoke of the Ministry’s desire to expedite cases in which there was potential fresh evidence, “for example, evidence from eminent forensic pathologists presented at this Inquiry, that pathology evidence at trial was faulty, or potentially that the science has changed.” She went on to say:

So we would be willing to set up an expedited process for dealing with the extension of time to appeal. We would work with the Defence Bar, and the Ontario Court of Appeal to develop that process.


We expect that the process would apply to most of the cases. It may be sort of a group application based on some of the evidence that’s been presented here.


So in order to expedite things ... should there be an extension of the process for time to appeal, the real issues would be the merits of the case argued in the Court of Appeal. And [we] would expend our time and energy on that issue, I think both from the defence and the Crown’s side.


Most of the Dr. Smith cases of potential wrongful conviction arose as a result of guilty pleas at trial, usually to lesser and included offences, in which there was no subsequent appeal to the Court of Appeal. As a consequence, in three cases, applications for extensions of time to appeal have already been granted by that Court, and others are pending. The Applicant’s case differs in that her case went to trial and she unsuccessfully appealed her conviction. Sometime after Ms. Nethery’s testimony at the Inquiry, the Ministry directly addressed the Applicant’s circumstances and advised counsel that it may consent to a section 43(1.1) Supreme Court Act application, and to an extension of time to file the application.

Goudge Report (supra) at pp. 515-6


Conclusion


3.

The Applicant is a likely victim of a miscarriage of justice. Dr. Smith played an important role in her trial and presented seemingly convincing evidence to the jury that Kenneth was the victim of a homicide, through strangulation or smothering. It is now apparent that there was no scientific foundation for these critical findings. In these circumstances, it is in the interests of justice for her case to be reconsidered by a court of competent jurisdiction. The Court of Appeal is an appropriate court for this purpose because it did not have the opportunity to consider the fresh evidence when it heard the Applicant’s appeal in 1998 – thus, if a section 696.1 ministerial review application were to be brought, the Minister would be asked to refer the case to the Court of Appeal. It is submitted that the route proposed is a sensible, efficient and speedy alternative to a ministerial review application, and this Court is asked to refer the case to the Court of Appeal accordingly.

See R. v. Hinse, [1994] 64 QAC 53 (C.A.), reversed [1997] 1 S.C.R. 3

R. v. Hinse, [1995] 4 S.C.R. 596

See also R. v. Balafrej (2005), 197 C.C.C. (3d) 88 (Que.C.A.)

Supreme Court of Canada: Bulletin of Proceedings (15 April 2005),

online: http://scc.lexum.umontreal.ca/en/bulletin/2005/05-04-15-bul.wpd/05-04-15-bul.wpd.pdf at p. 552



PART IV


4.

No costs were awarded in the lower courts and therefore the Applicant does not seek costs of this application.



PART V

ORDER REQUESTED


5.

It is respectfully requested that the application for an extension of time be granted, the application allowed and the case referred to the Court of Appeal for review.

ALL OF WHICH IS RESPECTFULLY SUBMITTED this27th day of January, 2009____________________

JAMES LOCKYER

Counsel for the Applicant

AUTHORITIES


Canada (Minister of Justice) v. Karas, [2008] S.C.C.A. No. 88.


R. v. Hinse, [1994] 64 QAC 53 (C.A.), reversed [1997] 1 S.C.R. 3


R. v. Hinse, [1995] 4 S.C.R. 596


See also R. v. Balafrej (2005), 197 C.C.C. (3d) 88 (Que.C.A.)


Supreme Court of Canada: Bulletin of Proceedings (15 April 2005),

online: http://scc.lexum.umontreal.ca/en/bulletin/2005/05-04-15-bul.wpd/05-04-15-bul.wpd.pdf at p. 552

1 Rick Marquardt was at Scarborough General Hospital that afternoon. He had gone there to be with his ex-girlfriend, who was about to give birth to their baby.


At trial, the Crown hypothesized that the Applicant was angry with Rick Marquardt for attending the birth and took out her frustration on Kenneth. P.C. Terry’s evidence did not support the Crown’s theory. He testified that when he took a statement from the Applicant at the Oshawa General, she was calm and seemed unperturbed by Rick Marquardt’s attendance at the birth of his previous girlfriend’s baby.

2 Defence counsel had consulted Dr. Fred Jaffe on the case in 1994. He advised that he was unable to assist since he was retiring. In a letter dated June 19, 1994, Dr. Jaffe wrote to defence counsel:


I think I suggested to you that a paediatric pathologist would be most effective in advising you in the above matter. However, it is a fact of life that, here in Toronto, all paediatric pathologists are associated with the Hospital for Sick Children and are, thus, colleagues of Dr. Smith.

In a memorandum to the file, defence counsel wrote: Dr. Jaffe “…made some interesting observations about the preliminary hearing evidence. He believes that Dr. Smith has handed [the defence] a chance of acquittal with his equivocal testimony.”


On the advice of Dr. Jaffe, the defence then consulted Dr. Chitra Rao, a pathologist who regularly conducted autopsies in suspicious death cases in Hamilton, Ontario. She was not a pediatric forensic pathologist. She did not provide a report to the defence but the defence file contains a memorandum outlining her opinion. She considered Dr. Smith’s post mortem report to be thorough and she disbelieved the Applicant’s explanation of the events on October 9th, 1993. Further, she did not believe that Kenneth was epileptic because two EEG tests carried out in his lifetime had not revealed any brain abnormalities. She further told counsel that the petechial hemorrhages of the thymus, pulmonary plueura and epicardium suggested asphyxia but were not conclusive of it.


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The story can be found at:

http://smithforensic.blogspot.com/2009/03/tammy-marquardt-still-behind-bars_09.html

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PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:

http://www.thestar.com/topic/charlessmith

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;

TAMMY MARQUARDT RETROSPECTIVE: PART THREE; SUPREME COURT OF CANADA FACTUM: FIRST PART; UP TO THE FRESH EVIDENCE;

"THE APPLICANT IS A LIKELY VICTIM OF A MISCARRIAGE OF JUSTICE. DR. SMITH PLAYED AN IMPORTANT ROLE IN HER TRIAL AND PRESENTED SEEMINGLY CONVINCING EVIDENCE TO THE JURY THAT KENNETH WAS THE VICTIM OF A HOMICIDE, THROUGH STRANGULATION OR SMOTHERING. IT IS NOW APPARENT THAT THERE WAS NO SCIENTIFIC FOUNDATION FOR THESE CRITICAL FINDINGS. IN THESE CIRCUMSTANCES, IT IS IN THE INTERESTS OF JUSTICE FOR HER CASE TO BE RECONSIDERED BY A COURT OF COMPETENT JURISDICTION."

FROM TAMMY MARQUARDT'S "FACTUM": (A DOCUMENT FILED IN THE SUPREME COURT OF CANADA IN SUPPORT OF HER APPLICATION TO HAVE HER SECOND-DEGREE MURDER CONVICTION SENT BACK TO THE ONTARIO COURT OF APPEAL FOR CONSIDERATION OF FRESH EVIDENCE);

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PUBLISHER'S NOTE: Like Bill Mullins-Johnson, Sherry Sherret, two women who cannot be identified by name and Dinesh Kumar - all victims of Dr. Charles Smith who have been acquitted by the province's highest court often years after their conviction - Tammy Marquardt will be asking the Ontario Court of Appeal to clear her name. (At least five other similar appeals are pending). Ms. Marquardt's appeal is set for Thursday February 10, 2011. In anticipation of this important date I am running a retrospective of 14 posts which ran previously on this Blog.

HAROLD LEVY: PUBLISHER; THE CHARLES SMITH BLOG;

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Sunday, March 8, 2009
TAMMY MARQUARDT; PART 3: STILL BEHIND BARS; ANOTHER MISCARRIAGE OF JUSTICE ATTRIBUTED TO DR. CHARLES SMITH; APPLICATION TO SUPREME COURT; SECTION ONE

BACKGROUND:

TAMMY MARQUARDT STILL LANGUISHES BEHIND BARS IN SPITE OF NUMEROUS FORENSIC OPINIONS THAT THE NOW DISCREDITED DR. CHARLES SMITH'S EVIDENCE WAS TERRIBLY WRONG; MS. MARQUARDT IS THE ONLY ONE OF DR. SMITH'S VICTIMS STILL BEHIND BARS - HAVING SERVED 13 YEARS OF HER LIFE-SENTENCE FOR SECOND-DEGREE MURDER OF HER SON (2 1/2 YEAR-OLD SON KENNETH); SHE IS ASKING THE SUPREME COURT OF CANADA TO SEND HER CONVICTION BACK TO THE ONTARIO COURT OF APPEAL FOR CONSIDERATION OF FRESH EVIDENCE. THE "FACTUM" SHE HAS FILED WILL ALLOW OUR READERS TO FOLLOW UP-COMING DEVELOPMENTS IN THE CASE, INCLUDING MS. MARQUARDT'S BAIL APPLICATION WHICH IS SET FOR MARCH 12TH; TAMMY MARQUARDT - AND WILL PROVIDE INSIGHTS INTO A TYPICAL SMITH "ASPHYXIATION" CASE. BECAUSE OF ITS LENGTH, I AM PUBLISHING THE DOCUMENT CONSECUTIVELY IN TWO PARTS; THE FIRST PART PROVIDES A FACTUAL SETTING; THE SECOND SETS OUT THE "FRESH EVIDENCE" CONSIDERATIONS UNDERLYING HER APPLICATION TO CANADA'S HIGHEST COURT; MS. MARQUARDT IS BEING ASSISTED BY THE ASSOCIATION IN DEFENCE OF THE WRONGLY CONVICTED WHICH HAS ALREADY HELPED OBTAIN FREEDOM AND VINDICATION FOR SEVERAL OF DR. SMITH'S VICTIMS AND HAS PLAYED A MAJOR ROLE IN THE GOUDGE INQUIRY INTO ONTARIO'S PEDIATRIC FORENSIC PATHOLOGY SYSTEM;
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The factum begins with the following statement of facts - a description of tthe history of the Proceedings and the basis of Ms. Marquardt's application;

1.

This is an application for an Order pursuant to Section 43(1.1) of the Supreme Court Act that the Applicant’s case be remanded to the Court of Appeal for Ontario for reconsideration to consider fresh evidence and determine whether her conviction on the charge of second degree murder should be set aside on the ground that it was a miscarriage of justice. An Order extending the time for the filing of this application is also requested. It is anticipated that the Respondent may support both applications (for a recent case in which this Court has used its power to refer a case to the appellate court for reconsideration, see Canada (Minister of Justice) v. Karas, [2008] S.C.C.A. No. 88)


2.

On October 9, 1993, Kenneth Wynne, the Applicant’s 2 ½ year old son (born in Scarborough on May 18, 1991) was found lying on his mother’s bed with no visible signs of life. The Applicant, who was alone in her apartment at the time, summoned emergency services. Kenneth was resuscitated at the hospital but died three days later after life support was removed. On November 23, 1993, the Applicant was charged with his second degree murder.


3.

On October 24, 1995, following a trial before Mr. Justice McIssac and a jury in Whitby, Ontario, the Applicant was convicted of second degree murder and sentenced to life imprisonment without parole eligibility for ten years. The Applicant’s appeal of her conviction was heard before Justices Finlayson, Rosenberg and Goudge on January 16, 1998 and dismissed in a unanimous judgment on January 22, 1998. No application for leave to appeal to this Court was brought. The Applicant, who testified in her own defence at her trial, has always maintained her innocence of the crime. She has filed an affidavit on this application which sets out her personal history and the event of Kenneth’s death, and describes her life in the penitentiary. She has now served 13 years of her life sentence and is presently being held at Grandview Penitentiary in Kitchener, Ontario.


4.

Dr. Charles Smith was the pathologist who conducted Kenneth’s autopsy. In his post-mortem report and at the Applicant’s trial, he claimed the evidence established that Kenneth’s death was caused by “asphyxia”, through smothering or strangulation. Dr. Smith’s testimony was central to the prosecution’s theory that the Applicant, an impecunious young mother with limited parenting and coping skills - and carrying on an unstable relationship with Kenneth’s step-father (Rick Marquardt) - had suffocated Kenneth in a moment of frustration. Dr. Smith entirely discounted the defence theory that Kenneth, who had been treated for a number of seizures during his life, may have died during a seizure.


5.

In 2005, the Chief Coroner for Ontario initiated a review of cases of suspicious child deaths in which Dr. Smith had conducted the autopsy. One of them was Kenneth’s case. Dr. Pekka Saukko, a professor of forensic medicine at the University of Turku, Finland, was designated by the Chief Coroner as the primary reviewer of Kenneth’s case. In his report to the Chief Coroner in October, 2007, Dr. Saukko concluded that Dr. Smith’s finding of asphyxia was “illogical and completely against scientific evidence-based reasoning.” In December, 2007, Dr. Saukko testified in the same manner about Kenneth’s case at the Inquiry into Pediatric Forensic Pathology in Ontario, chaired by the Honourable Mr. Justice Stephen Goudge.


6.

In 2008, Dr. Simon Avis, the Chief Medical Examiner for the Province of Newfoundland, conducted a comprehensive review of the medical evidence and circumstances surrounding Kenneth’s death. In his report, Dr. Avis agrees that Dr. Smith wrongly attributed Kenneth’s death to homicidal asphyxia, and concludes that he may have died during an epileptic seizure or of other natural causes.


7.

The Applicant had intended to make an Application for Ministerial Review to the Minister of Justice under Part XXI.1 of the Criminal Code for a Reference to the Court of Appeal for Ontario pursuant to section 696.3(3)(a)(ii) of the Criminal Code. The Respondent, however, has advised the Applicant that in their view an extension of time to appeal should be brought before this Court so that the parties can together urge that the case be remanded for hearing in the Court of Appeal pursuant to section 43(1.1) of the Supreme Court Act. Hence, this application is being brought in this form. Both parties are, of course, available to attend an oral hearing on the application if the Court so orders pursuant to section 43(1)(c) of the Act.


B. The Events of October 9, 1993


8.

On the afternoon of Saturday, October 9, 1993, the Applicant (aged 21) called 911 from her apartment in Oshawa and told the operator that her son was not breathing. Emergency workers arrived at the apartment within five minutes. The Applicant was visibly distraught. She directed them to Kenneth. He was lying motionless on a couch to which the Applicant had moved him. His face was a grey-ashen colour and he was not breathing. Efforts at resuscitation at the apartment failed and he was transported immediately to Oshawa General Hospital.


9.

Minutes after his admission, an emergency physician saw Kenneth. He was in a state of cardiac arrest. Within ten minutes, Kenneth’s heart beat was restored and he was placed on a ventilator. Two hours later, he was transferred to the Hospital for Sick Children in Toronto. There, Dr. Shemie, a pediatric intensive care specialist at the hospital, found Kenneth to be in a deep coma with minimal brain function. He diagnosed Kenneth with a severe brain injury due to a loss of oxygen. When questioned by the Crown as to how Kenneth came to be in this condition, Dr. Shemie testified:

The history that we obtained from the mother who was there with Kenneth at home was not enough to explain the severity of this problem and not enough to explain why a child would stop breathing and subsequently his heart would have stopped…It was inadequate, in my mind, to explain why Kenneth was so sick and, therefore, at that point I requested that our S.C.A.N. [Suspected Child Abuse and Neglect] Unit get involved.

On Tuesday, October 12, Kenneth was declared brain dead and his life support systems were removed.


10.

The Applicant gave repeated, consistent explanations of the events leading to Kenneth’s death. The jury heard in the evidence what she told the 911 operator, ambulance personnel, the police officers who interviewed her at the hospital, and the doctors and nurses at the Oshawa General Hospital and the Hospital for Sick Children. In addition, she gave a videotaped statement at the Oshawa police station on the day Kenneth was taken to hospital, and she testified as the only defence witness at her trial.


11.

On October 9, the Applicant had put Kenneth down for a nap at 1:00 p.m., as was her habit. She lay down on the couch in her living room and, while waiting for her husband to telephone,1

12.

had fallen asleep. At 4:30 p.m., she woke up and went to the bathroom. While in there, she heard Kenneth call out “Mommy, Mommy.” She called to him from the bathroom that she would be with him in a moment. When she entered the bedroom shortly afterward, Kenneth’s head was at the foot of the bed and he was tangled up in the bedsheets. She could not see his arms and he was kicking, continuing to call out “Mommy.” She tried to extricate him from the sheets, but he kept kicking and this seemed to tighten the sheets around him. She disentangled Kenneth’s arms after what seemed like twenty minutes and removed him from the sheets. Kenneth was, she testified, motionless, like “a rag doll.” She kept calling out, “Kenneth, wake up. Mommy is here wake up”, but he did not respond. She ran with him to the living room and called 911. The Applicant, who had taken C.P.R. training a few years earlier, received instructions from the 911 operator on how to resuscitate Kenneth but she was too terrified and overwhelmed to follow them. According to all witnesses who encountered her at the apartment and thereafter at the hospital, the Applicant was visibly and deeply upset. She was urging Kenneth to fight for his life, saying that if he died so would she. According to P.C. Terry, during an interview of the Applicant at the hospital, the Applicant was in hysterics, hyperventilating and convulsing. Dr. Huyer at the Sick Children’s Hospital, testified that, when the life support systems were removed on Tuesday from Kenneth, the Applicant was expressing suicidal thoughts.


C. Dr. Charles Smith’s Evidence on the Cause of Death


13.

At the time of the Applicant’s trial, Dr. Charles Smith was the director of the Ontario Pediatric Forensic Pathology Unit at the Hospital for Sick Children. He described the Unit as the only one of its kind in the world, claimed that he probably did more pediatric forensic pathology than anyone else on the continent, and said he had performed more than 1,000 pediatric autopsies in his career. Dr. Smith conducted Kenneth’s autopsy. Prior to autopsy, Kenneth’s liver, kidneys and other organs were, with the Coroner’s approval, harvested for organ donation purposes. As a consequence, they were never subjected to forensic analysis. Dr. Smith called it “a minor inconvenience” for his autopsy.


14.

Dr. Smith testified that Kenneth appeared to be “a healthy and well-cared for little boy who showed no external abnormality apart from evidence of medical intervention.” Dr. Smith certified the cause of death to be “Asphyxia” which caused irreversible brain damage. He defined asphyxia as

... a condition affecting the organs of the body or the body wherein there is impaired delivery or utilization of oxygen. An injury occurs because either there is inadequate supply of oxygen or the oxygen which is present cannot be properly used.


As evidence of his thesis, Dr. Smith pointed to scattered petechial hemorrhages (tiny red spots) over the surfaces of Kenneth’s heart, lungs and thymus. Photographs of the petechial hemorrhages were shown to the jury. Dr. Smith gave an example of how these petechial hemorrhages would have occurred:

If you are trying to breathe and you can’t get air in, if you have swallowed a hotdog at a baseball game and it’s stuck in your airway so you have complete tracheal obstruction, your brain is going to cause the muscles of your chest cage to work very hard trying to suck air in to get oxygen. But if it can’t get in, the internal environment in your chest cage is going to have a negative pressure compared to the outside world. The blood vessels on the surfaces of the organs in your chest see that negative pressure and that’s the same as having a pressurized can of shaving cream on an airplane. The pressure inside the shaving cream is fine, but the pressure outside of it is so low that it goes beyond the mechanical integrity of the wall of the container.


Dr. Smith testified that these findings of petechial hemorrhages supported his diagnosis of asphyxia.

15.

Dr. Smith further described his examination of Kenneth’s neck. He noted no external injury, but detected microscopic hemorrhages in the small skeletal muscles in the lower part of the neck. These hemorrhages he considered to be “consistent” with a non-accidental injury to the neck (but acknowledged that the attempts at Kenneth’s resuscitation by the medics could have caused them).


16.

Kenneth’s brain was extremely swollen. Dr. Smith explained that such swelling occurs in response to a lack of oxygen and was “part of [the] asphyxia”. Photographs of Kenneth’s skull after his scalp had been reflected, and of his brain, were shown to the jury. Dr. Smith testified that between two and five minutes of oxygen deprivation would cause irreversible injury to the brain. Dr. Smith told the jury:

So what I’m left with in Kenneth is this: He has evidence of asphyxia. I have no natural disease that explains the asphyxia. I have some microscopic evidence of hemorrhage in his neck that would be consistent with neck injury, but I can’t say whether that neck injury was accidental or non-accidental. It would appear to be not a severe or prolonged neck injury if it was real such that we see the petechial changes in or around his eyes or in the region of his face.


So, what I’m saying is that he died of asphyxia. The asphyxia could be environmental, could be an environmental lack of oxygen, could be something like a plastic bag or a gentle suffocation. It could be a neck compression, I can’t rule that out, though I don’t have incontrovertible evidence of that.



17.

Dr. Smith was next asked how long it would take to cause a child’s heart to stop beating through suffocation. He postulated a time between ten and twenty minutes. He was asked:


Q. Are the findings that you made on Kenneth Wynne’s body, are they consistent with suffocation with a soft object?


A. Yes, they are.


Q. And are they also consistent with suffocation with a plastic bag or some such other object?


A. Yes, they are.


Q Is there anything else that your findings are consistent with?

A. It’s possible that someone held his nose and mouth closed and he was suffocated that way. You understand my uncertainty about the significance of the hemorrhage in his neck. Is it possible that there was a very broad ligature or very soft object that was placed around his neck that is associated with asphyxia? That is a possibility. I don’t think it’s as likely, but it’s a possibility.


In cross-examination, Dr. Smith further included a pillow as an object capable of causing a partial, and fatal, obstruction of airflow.


18.

Crown counsel asked Dr. Smith whether a seizure might account for Kenneth’s death. He answered, “I can’t accept that explanation unless you have other evidence to support it. I don’t have evidence of that at all.” He did not detect any “structural or anatomic or architectural evidence” of a seizure disorder at autopsy. Dr. Smith recognized “the problem of sudden and unexpected death in epilepsy”, but maintained that, in such cases, unless the person drowned or inhaled their own vomit, “you don’t have evidence of asphyxia.” Dr. Smith was asked for his comment on the Applicant’s statements that Kenneth called out “Mommy, mommy” before he went lifeless; he responded: “If that’s true then the seizure hypothesis is not at all a tenable explanation.”
19.

Dr. Shemie, a physician at the Hospital for Sick Children with a specialty in pediatrics, noted that he understood all but one of Kenneth’s seizures had been temperature related, and on this basis rejected a seizure as a likely cause of death. As well, Kenneth’s ability to say “Mommy, mommy” was inconsistent with a seizure.



D. History and Treatment of Kenneth’s Seizures


20.

The Applicant explained Kenneth’s extensive history of seizures including his treatment and hospitalization for them. A stream of medical records detailing Kenneth’s treatment confirmed her testimony in this regard. The Applicant testified that Kenneth had seizures between November, 1991 and July, 1993. During them, “his eyes would roll in the back of his head and his whole body would start shaking a lot.”


21.

Dr. Miroslav Ort, whose specialty was pediatric medicine, had treated Kenneth for his seizures at a clinic in Oshawa. On Kenneth’s first appointment (July 6, 1993), the Applicant reported that he had suffered seven seizures of which two were accompanied by fever. Dr. Ort was concerned by the history of Kenneth’s seizures, ordered a brain scan and prescribed dilantin, “one of the basic medications for epilepsy.” Kenneth suffered another seizure on the same night as his first visit to Dr. Ort and was taken by his mother to the Oshawa General Hospital. The Applicant advised Dr. Ort when she saw him three weeks later that she thought Kenneth had a fever that night at the hospital, but the chart detailing Kenneth’s admission did not contain a reference to fever.


22.

At first, Kenneth was placed on phenobarbital but this was stopped when he had side effects. Dr. Ort then prescribed dilantin as an anti-seizure drug and Kenneth took this drug until his death. However, it was noted that, when he was brought by emergency personnel to the hospital on the day he became lifeless, the amount of dilantin in his body was below a therapeutic level. In this regard Dr. Shemie, a pediatrician at the Hospital for Sick Children, testified

“there is no question that children who have a history of seizures when…the levels of the drug are low in the blood, as Kenneth had, that they could have a recurrence of that seizure.”



23.

Dr. William Logan, who had a specialty in pediatric neurology, treated Kenneth following his admission to H.S.C. on October 9, 1993. He testified that a seizure accompanied by fever (a febrile seizure) is a common, “fairly mild condition.” Epileptic seizures, however, resulting from a brain abnormality, can have very serious consequences up to and including death. Dr. Logan acknowledged that there are cases of sudden death in epilepsy. He testified that “we don’t quite understand” such cases, which are infrequent. Crown counsel asked Dr. Logan in re-examination whether sudden death in epilepsy was applicable in Kenneth’s case. Dr. Logan answered “no” but was not asked to expand upon his answer. Dr. Logan’s testimony on whether Kenneth’s brain injury may have resulted from a seizure prior to his admission to hospital on October 9, 1993 was ambiguous. He referred to Kenneth’s extrication from the sheet and his loss of consciousness, and noted “that he may or may not have been having a seizure at that time.” Dr. Logan testified: “That event of not breathing and having to be resuscitated was something which I think could explain his present condition, but I couldn’t explain how he got to that event from that history. It didn’t quite explain it totally in my mind and I thought that was an unusual preceding event for his comatose state.”



E. Involvement with Community Social Workers Prior to Kenneth’s Death


24.

The Applicant had had several contacts with community social workers from the time of her pregnancy until shortly before Kenneth’s death. At trial, the Crown relied on the testimony of some of these workers in an effort to establish that the Applicant, unable to cope as a young mother, was a threat to Kenneth’s safety.


25.

Before and after Kenneth’s birth, the Applicant went to Rosalie Hall, a maternity home for pregnant teens, seeking supportive counseling. After Kenneth’s birth, her social worker, Maureen Edwards, conducted a home visit. The Applicant told her that Kenneth was difficult to soothe and that sometimes, when she fed him and burped him, she imagined that she was putting her arms around his neck. She said she yelled at him on occasion. Ms. Edwards gave the Applicant advice on how to ease her frustration.


26.

Cathy Sorichetti, another social worker at Rosalie Hall, met the Applicant a month later at a mothers’ group meeting. After the meeting, the Applicant told her that she was under stress. The Applicant told her about a time when Kenneth was crying and she placed her hand over his mouth, something that frightened her. She explained how she might cover her ears when Kenneth screamed. Sorichetti told the Applicant that it might be a good idea if Kenneth went into care but the Applicant was resistant to this.


27.

However, on January 25, 1993, the Applicant attended the office of Frances Holmes, a Toronto Children’s Aid Society (C.A.S.) worker, requesting that Kenneth be placed for a time in a foster home. At the time, the Applicant was living in a basement apartment with Kenneth and two other adults. She told Holmes that her living conditions were cramped, she was under stress and was worried she might hurt Kenneth. Holmes attended the basement apartment the following day and the Applicant again requested that Kenneth be taken into care. The C.A.S. secured a three-month custody order during which Kenneth was placed into care, and then returned to his mother when it was over.



28.

On July 5, 1993, the Applicant moved to the Oshawa Y.M.C.A. to get away from Rick Marquardt. A week later, she disclosed to a supervisor, Marlene Wikaruk, that she had squeezed Kenneth’s leg, causing him a bruise. When Wikaruk said that she would have to report this, the Applicant accepted it. Wikaruk was impressed that the Applicant had come to her unsolicited and saw it as a cry for help. Later that day, in an interview with a child protection worker, the Applicant explained that she was having difficulty coping with Kenneth’s temper and his lack of appetite.


F. The Night of October 21, 1993, two weeks after Kenneth’s Death


29.

On October 21, 1993, some two weeks after Kenneth’s death, the Applicant was drinking in a bar with Rick Marquardt, Stewart Powell and Stacey Craig. She became highly intoxicated to the point that she vomited. During the evening, the Applicant screamed several times that she had forgotten how to do C.P.R. and had killed Kenneth. She wanted to go to the cemetery so the four of them drove there. Once there, the Applicant kept shouting that she had killed Kenneth because she had forgotten how to perform C.P.R. On several occasions, she had to be prevented from running onto the road into traffic. The Applicant herself testified that she screamed “It’s all my fault. I killed Kenneth. I forgot how to do C.P.R. It’s all my fault.” She added: “…it sounds disgusting --I wanted to dig Kenneth up and drop myself in to where he was…I wanted to die…I wanted to be with him.”


G. The Closing Addresses and the Charge to the Jury


30.

In her closing address, the Crown called on the jury to conclude the Applicant had suffocated Kenneth. She said:

Her worries and frustrations, her insecurities, whatever her feelings may have been, I submit to you, came to a head at that point in the afternoon. She went into Kenneth’s room and her feelings became translated into action and Kenneth Wynne died at her hand…



The Crown characterized the “seizure hypothesis” as “a red herring” and summed up Dr. Smith’s evidence on this point:

Dr. Smith went on in his evidence to say that he could not accept that a seizure caused Kenneth’s death and that if there had been no airway obstruction, that his death from seizure was even less likely. So without some kind of airway obstruction as Dr. Logan and Dr. Shemie referred to in combination with the seizure, it just was not tenable as far as he was concerned.

I think that all the doctors have agreed that for there to be any air of reality to this theory that a seizure caused or even contributed to Kenneth’s death, there has to be something more than that.


In this case, obviously the reference to something more is a reference to the sheet, but again all of these doctors, they know all of this. They know all these possibilities. As Dr. Smith said, he wished he could have come to some other conclusion, but none of them did. None of them thought Kenneth was having a seizure, although I have to be fair and say that some allowed that, in some circumstances, it must be possible, but really I think their opinion is it’s just not at play here and especially not while Kenneth is crying out, speaking in any sense. You don’t do that when you have a seizure. I think that’s a fair summary of the medical evidence on that point. You just don’t do that. If the seizure is so fleeting that you are then able to recover and start speaking again, it is not the kind of seizure that might even come close to causing a concern in this case.


Now, one of the other things that was put to Dr. Smith is that his findings about the petechiae were perhaps not entirely conclusive and defence raised this in closing, and I feel it necessary to point out again all of this was put in a lot of detail to Dr. Smith throughout his evidence, not just the petechiae, but all the other points and he indicated that he was still confident about his ultimate conclusion. He made the point that some pathologists that deal with adult pathology cases all the time may not be familiar with the child patterns of petechiae and that he remained confident about his own conclusions in this matter and not just conclusions based on this point or that point, but on the whole picture. What he found at autopsy, what he knew about the history of the events leading to Kenneth’s death and what he understood about Kenneth’s care. He has come to a conclusion with all of this in mind and his conclusions, as with all the other doctors, I would submit to you is worth very very serious consideration. In fact, it would be my submission to you that there is no evidence before you to contradict any of the opinions of the doctors.


So ultimately I would be saying to you that this whole suggestion that seizures played a part in Kenneth’s death is a complete red herring. It raises no reasonable doubt about what happened. It just does not figure into the events of October 9th.


Crown counsel insisted that the Applicant suffocated Kenneth to death:


I’m going to suggest to you really that the whole story about the struggle with the sheet is a red herring again as far as your deliberations are concerned. Because even if the sheet factored in here somehow and she was trying to untangle Kenneth from a sheet, it didn’t prevent him from breathing. It did not prevent him from breathing. She may have, but the sheet on its own, no.



31.

The defence tendered no medical evidence at the Applicant’s trial. In his closing address to the jury, defence counsel submitted that Kenneth’s death may indeed have been caused by a

seizure. He stated this submission was not “a cheap shot” at Dr. Smith:2

The interesting thing is if you look at the situation here if it was death by asphyxia without a seizure, which is really what the report, the autopsy report might be suggesting to be fair, that is the likely cause as Dr. Smith I think has told us, but is the alternative that we are suggesting as the defence was it ever considered by the doctors is what I’m asking you. It’s not a cheap shot. I hope you don’t find my saying that is a cheap shot that the doctors were intent on looking at one thing. They knew something about the history. They perhaps knew that there was some suspicious circumstances around this death. I’m not suggesting for a moment that Dr. Smith and Dr. Logan, most importantly Dr. Smith, wasn’t doing his job the way he would do on each and every occasion. Very experienced and very very eminent medical practitioner.


I’m just asking was the alternative that we suggest ever considered by the doctors? No one looked carefully at his history not because they were being negligent, not because they were being incompetent, because it was a stone, ladies and gentlemen, that wasn’t turned over is what I’m suggesting…


The seizures are not fanciful, in my respectful submission. I would like to tell you that I fully recognize that the medical opinion, the collective weight of the medical opinion suggests that Kenneth was not in a post-seizure state when he died and if that can be determined by an autopsy, then so be it. But I submit that it appears that that may not be a totally unqualified response or answer to that particular problem.


32.

In his charge to the jury, the trial judge summarized the medical evidence on the cause of death:

In support of the Crown theory that Ms. Marquardt willfully smothered Kenneth, the prosecution has led the evidence of several eminently qualified doctors. Everyone agrees that he died from asphyxia. However, there is nothing specifically referable in their evidence to a death by suffocation. The best they could do is state that Kenneth’s death is consistent with such a process. Nothing was found in the treatment of the deceased from October 9th and following to suggest that seizure formed any part of the cause of the asphyxia.


On the other hand, you will recall the testimony of Dr. Smith, the pathologist, and Dr. Logan, the neurologist, that they could not totally foreclose the possibility of a seizure as part of the death process here. It appears to be universally accepted by all of these witnesses that a normal EEG, which Kenneth had on two occasions in the summer before his death according to the evidence of Dr. Ort, does not necessarily mean that the individual does not have epilepsy. It is often a functional rather than a structural disorder.



33.

The Applicant appealed her conviction. No fresh evidence was proffered to the Court, nor was the verdict attacked as unreasonable. Rosenberg J.A., writing for the Court, began his judgment with a factual summary of the case at trial. He wrote:

The appellant appeals her conviction for second degree murder. The deceased was the appellant's two and a half year old son. The appellant was alone with the child at the time of the death and there was no doubt that if the death was caused by an unlawful act, the appellant had committed that act. It was the theory of the Crown that the appellant intentionally caused the child's death by suffocating him. The expert evidence indicated that the breathing would have to be obstructed for one to two minutes to cause the death. Based on this evidence, together with evidence of motive and admissions made by the appellant following the death, the Crown argued that the appellant had intentionally killed the deceased. It was the theory of the defence that the child died accidentally after becoming twisted in a sheet or suffering a seizure.


Rosenberg J.A. termed as the “principal ground of appeal” the trial judge’s failure to relate to the jury the evidence relevant to the included offence of manslaughter. Rosenberg J.A. noted that the basis for a manslaughter verdict was “tenuous”:

The only defence advanced at trial was accident. The trial judge properly directed the jury that if they had a reasonable doubt that the death was accidental, the appellant was entitled to an acquittal. The appellant, in her extensive and detailed testimony, gave no evidence capable of supporting a manslaughter verdict either on the basis of a loss of control or excessive use of force to quiet the child. The appellant denied being angry, denied being under any special stress due to her relationship with her husband, denied any need to discipline the child, denied having had a black-out, in short denied being in any kind of mental state that would support a lack of intent. There was no other physical or circumstantial evidence to suggest that the appellant lacked the requisite intent at the time of the death. On the other hand, the medical and other evidence strongly suggested at least an intent to cause bodily harm that the appellant knew was likely to cause death and was reckless whether death ensued or not. It was sufficient that the intent and the act of suffocation coincided at some point. It was not necessary that the requisite intent continue throughout the entire period required to cause the child's death: see R. v. Cooper (1993), 78 C.C.C. (3d) 289 at 298 (S.C.C.).

. . . .


This was not a case where there was an obvious body of evidence that pointed to the accused not having the requisite intent for murder at the time of the killing. The evidence that the appellant now seeks to rely upon to support lack of intent was largely disputed by the appellant in her own testimony. More importantly, there was no evidence that, at the time of the killing, the appellant was in any state of mind to which this earlier evidence was referable. In those circumstances, it would be unreasonable and unrealistic to require the trial judge to marshall this evidence in support of a position that was disavowed by the appellant in her own testimony and which would have undermined that position.


The appeal was dismissed. Legal Aid funding was refused for further appellate proceedings and, as a consequence, no application for leave to appeal to this Court was ever brought.

Tomorrow: The factum; Second part; The fresh evidence;

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The POST can be found at:

http://smithforensic.blogspot.com/2009/03/tammy-marquardt-still-behind-bars.html

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PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:

http://www.thestar.com/topic/charlessmith

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;

TAMMY MARQUARDT RETROSPECTIVE: PART TWO; A MOTHER'S SEARCH FOR JUSTICE; THE GLOBE AND MAIL;

“DR. SMITH'S TESTIMONY WAS CENTRAL TO THE PROSECUTION THEORY THAT THE APPLICANT WAS AN IMPECUNIOUS YOUNG MOTHER WITH LIMITED PARENTING AND COPING SKILLS,” SAYS THE BRIEF. “DR. SMITH ENTIRELY DISCOUNTED THE THEORY THAT KENNETH, WHO HAD BEEN TREATED FOR A NUMBER OF SEIZURES DURING HIS LIFE, MAY HAVE DIED DURING A SEIZURE.”

PROUDLY TOUTED BY HIS EMPLOYERS AT ONTARIO'S OFFICE OF THE CHIEF CORONER AS A WORLD-CLASS PEDIATRIC PATHOLOGIST, DR. SMITH'S VIEW CARRIED THE DAY. MS. MARQUARDT WAS CONVICTED OF SECOND-DEGREE MURDER AND SENTENCED TO LIFE IN PRISON WITH NO CHANCE OF PAROLE FOR 10 YEARS.

"HOWEVER, IN AN AFFIDAVIT FILED WITH HER BRIEF, NEWFOUNDLAND'S CHIEF MEDICAL EXAMINER, SIMON AVIS, FLATLY DISMISSES DR. SMITH'S CONCLUSION THAT KENNETH'S DEATH WAS A RESULT OF ASPHYXIA. THE ONLY LEGITIMATE FINDING FOR CAUSE OF DEATH, HE SAID, IS “UNDETERMINED.”

JUSTICE REPORTER KIRK MAKIN: GLOBE AND MAIL;"

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PUBLISHER'S NOTE: Like Bill Mullins-Johnson, Sherry Sherret, two women who cannot be identified by name and Dinesh Kumar - all victims of Dr. Charles Smith who have been acquitted by the province's highest court often years after their conviction - Tammy Marquardt will be asking the Ontario Court of Appeal to clear her name. (At least five other similar appeals are pending). Ms. Marquardt's appeal is set for Thursday February 10, 2011. In anticipation of this important date I am running a retrospective of 14 posts which ran previously on this Blog.

HAROLD LEVY: PUBLISHER; THE CHARLES SMITH BLOG;

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Friday, February 13, 2009
TAMMY MARQUARDT CASE: PART (2); "A MOTHER'S QUEST FOR JUSTICE;" JUSTICE REPORTER KIRK MAKIN; GLOBE AND MAIL; SMITH'S OPINION "FLATLY" DISMISSED;

Justice Reporter Kirk Makin's story ran under the heading: "A mother's quest for justice," and the sub-heading: "Tammy Marquardt watched from jail as Charles Smith's pathology was discredited and other convictions were overturned. Now, finally, freedom is within reach."

"A caption under the photo by the Globe's Charla Jones, reads: "Tammy Marquardt is the only Canadian parent still behind bars due to the testimony of disgraced pathologist Charles Smith."

"KITCHENER, ONT. — The only parent in Canada still behind bars for a murder conviction as a result of testimony from disgraced pathologist Charles Smith finally has the wheels of justice grinding in her favour," Makin's story, published on Friday 13 February, began;

"From her prison cell, Tammy Marquardt has watched helplessly as Dr. Smith's once-sterling reputation was destroyed in case after case – several times granting freedom to a parent or caregiver convicted of killing a child. But never for her," the story continued;

"It has been 14 years since she passed up a plea bargain in order to tell a disbelieving jury she had not suffocated her two-year-old son, Kenneth. Now, the Supreme Court of Canada has granted permission to reopen her case.

“They say the truth will set you free,” Ms. Marquardt said, her green eyes flashing, as she sat in a sparsely furnished office at the Grand Valley Institution for Women in Kitchener, Ont. “Well, it didn't set me free; it gave me a life sentence. And right now, I'm still living with that life sentence.

“For years, I was told that I was in denial,” she said in her first-ever interview. “You're in here, so obviously you did something. I had to just hold my head up, knowing in my heart of hearts that I hadn't done anything. I know the truth – and it will come out some day. I have just held onto that.”

Ms. Marquardt's dark journey began on Oct. 9, 1993, when she called 911 in a panic to report that she had emerged from the shower to find Kenneth – who had a history of epileptic seizures – tangled in his bedclothes, struggling for breath and calling, “mommy.”

“According to all witnesses who entered the apartment – and thereafter, the hospital – the applicant was visibly and deeply upset,” says a brief filed with the Supreme Court on her behalf.

On the eve of her trial, her two lawyers gave her conflicting advice. “One kept saying, ‘There isn't enough evidence here to get you convicted.' The other was saying, ‘The Crown's offering you a plea of manslaughter for five years – take it!' I hadn't done anything,” Ms. Marquardt said. “Why should I take it?”

The Crown portrayed Ms. Marquardt as an overstressed mother on welfare who had called the Children's Aid Society several times to have Kenneth temporarily placed in a foster home, once expressing fears that she might hurt him.

“Dr. Smith's testimony was central to the prosecution theory that the applicant was an impecunious young mother with limited parenting and coping skills,” says the brief. “Dr. Smith entirely discounted the theory that Kenneth, who had been treated for a number of seizures during his life, may have died during a seizure.”

Proudly touted by his employers at Ontario's Office of the Chief Coroner as a world-class pediatric pathologist, Dr. Smith's view carried the day. Ms. Marquardt was convicted of second-degree murder and sentenced to life in prison with no chance of parole for 10 years.

However, in an affidavit filed with her brief, Newfoundland's Chief Medical Examiner, Simon Avis, flatly dismisses Dr. Smith's conclusion that Kenneth's death was a result of asphyxia. The only legitimate finding for cause of death, he said, is “undetermined.”

“To further define the asphyxia as a result of smothering or neck compression was wrong and inappropriate,” Dr. Avis said.

His view is corroborated by a Finnish pathologist, Pekka Saukko, who branded Dr. Smith's findings “illogical and completely against scientific-based reasoning.”

Ms. Marquardt said she does not regret her decision to reject the offer of a five-year sentence in return for pleading guilty to manslaughter. “I don't think I could have lived with myself,” she said. “They shouldn't have even offered it. So long as they get somebody – that's all that matters.”

James Lockyer, a lawyer with the Association in Defence of the Wrongly Convicted, calls Ms. Marquardt's case “as heart-wrenching as you can imagine.”

“It is an unfortunate side of the adversarial process that once you are convicted, the onus is on you to correct it.”

With the Crown unwilling to concede a wrongful conviction in Ms. Marquardt's case, Mr. Lockyer said it was imperative that he and co-counsel David Bayliss painstakingly assemble an ironclad case before they approached the courts.

Their next step will be to apply for bail. Then, they will ask the Ontario Court of Appeal to consider fresh evidence that could exonerate their client.

Ms. Marquardt gave birth to her second child, Keith, while on bail awaiting trial. She arrived in prison five months pregnant; her third son, Eric, was seized two days after he was born. Both boys were adopted by the same parents, whose identity remains a mystery to Ms. Marquardt.

She dreams that at the end of it all, she will see her two sons.

“The last time I heard of them was 1998, when the adoption was finalized,” Ms. Marquardt said. “I'm always thinking about them. I would like to see them again, but I don't want them to feel obligated. It's their choice.

“I know that one day they are going to want to hear the truth, to know what really happened to their older brother and what caused them to be adopted. I'm the only one who can really give them the truth. So, I have to stay above water.”

Her features grew steely as Ms. Marquardt spoke of Dr. Smith, who said in a public apology last year that while he did make serious mistakes in some of his cases, he never intended to cause any harm.

“As far as I'm personally concerned, he needs to be punished,” she said. “To me, it was like he was up there being God. It still makes me very angry. He needs to feel some of the stuff we've gone through. I don't want to see the man dead or anything, but he does need to do time.”

Ms. Marquardt was released on parole in 2005, but it was revoked after she began drinking heavily.

“It's impossible to turn back the clock of time and wipe away the nightmares, pain and tragic losses that 14 years of imprisonment have dealt Tammy,” said Win Wahrer, a spokesman for the Association in Defence of the Wrongly Convicted.

Ms. Marquardt said she tries not to think about being exonerated. “Part of me is scared to look that far ahead,” she said. “It's just overwhelming. The truth is finally going to be out there. I just wish it didn't take so long.

“If they still had capital punishment, I would be dead,” she added. “Thank God Canada doesn't have the death penalty any more.”

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The story can be found at:

http://smithforensic.blogspot.com/2009/02/tammy-marquardt-case-part-two-mothers.html
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PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:

http://www.thestar.com/topic/charlessmith

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;

TAMMY MARQUARDT RETROSPECTIVE: PART ONE; "THE FINAL HOSTAGE." THE TORONTO STAR;

"AS WITH SO MANY OTHER CASES INVOLVING SMITH, THEN REGARDED AS ONTARIO'S TOP PEDIATRIC FORENSIC PATHOLOGIST, THE DEFENCE COULDN'T FIND AN EXPERT TO CHALLENGE HIM."

REPORTER TRACY TYLER: TORONTO STAR;

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PUBLISHER'S NOTE: Like Bill Mullins-Johnson, Sherry Sherret, two women who cannot be identified by name and Dinesh Kumar - all victims of Dr. Charles Smith who have been acquitted by the province's highest court often years after their conviction - Tammy Marquardt will be asking the Ontario Court of Appeal to clear her name. (At least five other similar appeals are pending). Ms. Marquardt's appeal is set for Thursday February 10, 2011. In anticipation of this important date I am running a retrospective of 14 posts which ran previously on this Blog.

HAROLD LEVY: PUBLISHER; THE CHARLES SMITH BLOG;

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February 13, 2005;

The Toronto Star, which played an important role in exposing Dr. Charles Smith, runs the story of Tammy Marquardt, who it describes as "the final hostage" in today's paper;

Not surprisingly, Ms Marquardt is being assisted by the Association in Defence of the Wrongly Convicted which has already helped obtain freedom and vindication for several of Dr. Smith's victims and has played a major role in the Goudge Inquiry into Ontario's pediatric forensic pathology system;

The story, by reporter Tracy Tyler, appears under the heading: "Disgraced MD's final "hostage" waits for justice" and the sub-heading: "Tammy Marquardt, the last jailed victim of Dr. Charles Smith, lost her children and 15 years of her life. Now a push is on to reopen her case;"

A photo of Dr. Smith testifying at the Goudge Inquiry - looking like he has been caught in the headlights -contains the cutline: "Dr. Charles Smith, seen at the Goudge Inquiry, said Tammy Marquardt asphyxiated her son Six forensic experts have since repudiated his findings";

"There was no time to hold her son and barely time to hear his cries. Moments after she gave birth, Tammy Marquardt's youngest child, Eric, was swept from the delivery room and made a Crown ward, as her son Keith had been two years before," the story begins;

"Today, two boys, now 12 and 14, live somewhere in Canada in an adoptive family, not knowing the truth about their mother," it continues;

"What has helped keep Marquardt going during "an exhausting fight" for exoneration is her determination to see them and tell her story.

"If I was to sum up my experiences over the past 15 years in one word, that word would be `hostage,'" the petite 36-year-old said in the Grand Valley Institution for Women in Kitchener, where she is well into the second decade of a life sentence for murder, a situation she hopes will soon change.

This week, the Association in Defence of the Wrongly Convicted filed papers in the Supreme Court of Canada asking to have her case reopened.

Marquardt, who grew up in Scarborough, was convicted in October 1995 of killing her first child, Kenneth Wynne, 2 1/2, on the basis of testimony from disgraced pathologist Dr. Charles Smith, who said tiny red marks on the boy's lungs and chest were proof of asphyxiation.

His findings have since been repudiated by six forensic experts, including Dr. Simon Avis, Newfoundland's chief medical examiner, who say Smith wrongly concluded the child's death was a homicide.

In fact, the red marks in question can appear for a number of reasons and are considered meaningless without further evidence, something forensic textbooks pointed out as far back as 1974.

Kenneth, who had epilepsy, may have died during a seizure or of other natural causes, said Avis.

Of the dozens of parents whose lives were ruined by Smith's mistakes, Marquardt is the only one still behind bars.

In documents filed with the Supreme Court, James Lockyer, an association lawyer, is asking the court to order the Ontario Court of Appeal to reconsider Marquardt's case in light of the new evidence, which wasn't available when her appeal was dismissed in 1998.

It includes assessments by five international experts, who looked at Kenneth's case as part of a review by Ontario's chief coroner's office, and a lengthy report by Dr. Pekka Saukko, a professor of forensic medicine from Finland, prepared for the Goudge inquiry into the pediatric forensic pathology system.

When Marquardt entered the former Prison for Women in Kingston she was 23 and pregnant with Eric. A guard, well-versed in the inmate code, which reserves its harshest measures for convicted child killers, offered some advice.

"She said if I wanted that child inside of me to live, I had better lie and say I killed my husband," Marquardt recalls. But before long, Marquardt's case was mentioned on a television news program and conditions grew openly hostile.

She was placed in protective custody as stories circulated that she "nuked her kid" or placed him in a roasting pan and ate him for Thanksgiving dinner.

With the Goudge inquiry, things changed – sort of, said Marquardt, who followed the newspaper coverage and asked the prison librarian to download Justice Stephen Goudge's entire report. Tensions have subsided, with other inmates now sympathetic.

On the other hand, she's still in prison.

"I sit here and go, `Okay. They finally have evidence to prove I haven't done it. Why am I sitting in here? Mistakes were made. Go correct them. Let's get on with it. This is my life.'"

Even before the terrible events of Oct. 9, 1993, when Kenneth was found tangled in his bedsheets, it was a life full of struggle.

Marquardt was raised by a single mother, first in a basement apartment, then at a Metro Toronto housing complex on Lawrence Ave. E. At 17, she left home to escape sexual advances from her mother's boyfriend. She lived in shelters and at friends' homes while struggling to make it through Grade 11.

At 18, she became pregnant with Kenneth. Two years later, living at a home for single mothers, she met up with Rick Marquardt, a former boyfriend. When they married in 1993, he was expecting a child with a former girlfriend, which would become an important component of the prosecution's trial theory.

When Kenneth died, Rick Marquardt was at a hospital with his former girlfriend, who was giving birth. Earlier that afternoon, Marquardt had laid Kenneth down on his bed for a nap, then fell asleep herself on a couch.

She woke up, went to the bathroom then heard Kenneth calling from the bedroom. She said she found him rolled up in bedding and when she got him untangled, he was white and limp "like a rag doll."

He died three days later after being removed from life support.

Two weeks after Kenneth's death, Marquardt was so devastated she asked to go the cemetery so she could take his place in his grave.

The Crown would later paint it as a sign of guilt. The prosecution's theory was that Marquardt had been angry with her husband and took it out on her son.

Marquardt rejected a prosecution offer of five years in prison in exchange for a plea to manslaughter. "I said I haven't done anything. Forget it."

At her trial, her older sister testified for the Crown, offering support for the prosecution theory by alleging Rick Marquardt had an extramarital affair.

As with so many other cases involving Smith, then regarded as Ontario's top pediatric forensic pathologist, the defence couldn't find an expert to challenge him.

While on bail awaiting trial, Marquardt gave birth to Keith, Rick Marquardt's son, who was immediately seized by Children's Aid. She was permitted weekly visits. After she was convicted, she was told she could have "one final visit," but Keith was never brought to see her.

Rick Marquardt disappeared from her life in 1995 and Eric was conceived with another man. After he was born, Marquardt had periodic visits until he was adopted.

Her request that her boys be adopted by the same family was honoured.

Marquardt was allowed to write them a letter, which they can read when they're 18, said Michael Cvijetic, her former high school law teacher, who has stuck by her and poignantly recalls the borrowed red dress she wore at her high school graduation.

Cvijetic never doubted Marquardt's innocence and has a theory about why she was convicted. "You know what I think it boils down to? She was poor and nobody gave a s---."

Marquardt intends to chart a new course after prison. She wants to become an architectural draftsperson and plans to apply to the University of Toronto.

First though, she wants to get Kenneth a gravestone. She's been pricing them through the cemetery. They want $500 down, while the remaining $500 can be paid in instalments.

There's only a number to mark where he is buried.

"That's not right. He can't remain a number," said Marquardt. "He was a human being. He needs to have his little mark in the world.""

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The story can be found at:

http://smithforensic.blogspot.com/2009/02/tammy-marquardt-dr-smiths-final-hostage.html

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PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:

http://www.thestar.com/topic/charlessmith

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;

CAMERON TODD WILLINGHAM; ARSON INVESTIGATIONS: A LESSER SCIENCE? RICK CASEY; THE HOUSTON CHRONICLE;

"In fact, there was a federal case in the 1990s in which the International Association of Arson Investigators argued in a friend-of-the-court brief that arson experts shouldn't be subject to what is called a "Daubert" test before being allowed to testify in federal court.

That test requires that a judge act as a "gatekeeper" on expert testimony. The judge is to exclude scientific testimony if it doesn't pass certain tests, including whether it is based on solid scientific methodology.

The IAAI actually argued that members shouldn't be subject to that test because what they do is "less scientific" than what is required under "Daubert."

But the reality is that when arson experts testify to juries, the juries believe that their conclusions are based on real science, not lesser science."

RICK CASEY; THE HOUSTON CHRONICLE;

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BACKGROUND: (Wikipedia); Cameron Todd Willingham (January 9, 1968 – February 17, 2004), born in Carter County, Oklahoma, was sentenced to death by the state of Texas for murdering his three daughters—two year old Amber Louise Kuykendall, and one year old twins Karmon Diane Willingham and Kameron Marie Willingham— by setting his house on fire. The fire occurred on December 23, 1991 in Corsicana, Texas. Lighter fluid was kept on the front porch of Willingham’s house as evidenced by a melted container found there. Some of this fluid may have entered the front doorway of the house carried along by fire hose water. It was alleged this fluid was deliberately poured to start the fire and that Willingham chose this entrance way so as to impede rescue attempts. The prosecution also used other arson theories that have since been brought into question. In addition to the arson evidence, a jailhouse informant claimed Willingham confessed that he set the fire to hide his wife's physical abuse of the girls, although the girls showed no other injuries besides those caused by the fire. Neighbors also testified that Willingham did not try hard enough to save his children. They allege he "crouched down" in his front yard and watched the house burn for a period of time without attempting to enter the home or go to neighbors for help or request they call firefighters. He claimed that he tried to go back into the house but it was "too hot". As firefighters arrived, however, he rushed towards the garage and pushed his car away from the burning building, requesting firefighters do the same rather than put out the fire. After the fire, Willingham showed no emotion at the death of his children and spent the next day sorting through the debris, laughing and playing music. He expressed anger after finding his dartboard burned in the fire. Firefighters and other witnesses were suspicious of how he reacted during and after the fire. Willingham was charged with murder on January 8, 1992. During his trial in August 1992, he was offered a life term in exchange for a guilty plea, which he turned down insisting he was innocent. After his conviction, he and his wife divorced. She later stated that she believed that Willingham was guilty. Prosecutors alleged this was part of a pattern of behavior intended to rid himself of his children. Willingham had a history of committing crimes, including burglary, grand larceny and car theft. There was also an incident when he beat his pregnant wife over the stomach with a telephone to induce a miscarriage. When asked if he had a final statement, Willingham said: "Yeah. The only statement I want to make is that I am an innocent man - convicted of a crime I did not commit. I have been persecuted for 12 years for something I did not do. From God's dust I came and to dust I will return - so the earth shall become my throne. I gotta go, road dog. I love you Gabby." However, his final words were directed at his ex-wife, Stacy Willingham. He turned to her and said "I hope you rot in hell, bitch" several times while attempting to extend his middle finger in an obscene gesture. His ex-wife did not show any reaction to this. He was executed by lethal injection on February 17, 2004. Subsequent to that date, persistent questions have been raised as to the accuracy of the forensic evidence used in the conviction, specifically, whether it can be proven that an accelerant (such as the lighter fluid mentioned above) was used to start the fatal fire. Fire investigator Gerald L. Hurst reviewed the case documents including the trial transcriptions and an hour-long videotape of the aftermath of the fire scene. Hurst said, "There's nothing to suggest to any reasonable arson investigator that this was an arson fire. It was just a fire. Legendary "Innocence" lawyer Barry Scheck asked participants at a conference of the National Association of Criminal Defence Lawyers held in Toronto in August, 2010, how Willingham, who had lost his family to the fire, must have felt to hear the horrific allegations made against him on the basis of the bogus evidence, "and nobody pays any attention to it as he gets executed." "It's the Dreyfus Affair, and you all know what that is," Scheck continued. "It's the Dreyfus AffaIr of the United States. Luke Power's music video "Texas Death Row Blues," can be found at:
http://smithforensic.blogspot.com/2010/09/cameron-todd-willingham-texas-death-row_02.html

For an important critique of the devastating state of arson investigation in America with particular reference to the Willingham and Willis cases, go to:

http://smithforensic.blogspot.com/2011/01/fire-investigation-great-read-veteran.html

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"The biggest mystery concerning the Texas Forensic Commission may be whether Todd Willingham actually set the 1991 house fire that killed his three young daughters and for which he was executed," the Houston Inquiry story by Rick Casey published on January 25, 2011 under the heading, "Are arson probes 'lesser science'?," begins.

"But the second-biggest mystery is what happened behind closed doors at the commission's meeting last Friday in Austin," the story continues.

"Just two weeks after finally hearing from nationally respected fire scientists who ripped testimony given in Willingham's trial by arson investigators from Corsicana and the State Fire Marshal's Office, commissioners appeared ready to issue their conclusions.

No scientist was brought forth to defend the arson investigations and testimony.

But after nearly an hour behind closed doors, they voted unanimously to seek an attorney general's decision on whether they had jurisdiction in the case.

What made the decision extraordinary is that the commission from the beginning has been guided by Barbara Dean, a senior member of the attorney general's staff who faithfully attended commission meetings and regularly offered legal opinions.

Immediate speculation arose that Chairman John Bradley, the Williamson County district attorney who delayed the testimony of the scientists for more than a year and has doggedly tried to restrict the scope of the body, was again putting on the brakes.

But the seven scientists on the nine-member body have repeatedly and overwhelmingly rejected Bradley's strictures. The unanimity of the vote suggests that a serious legal issue was raised in the secret session.

Fighting against science

My guess is that the issue was brought by either the city of Corsicana or the fire marshal's office, or both.

If I'm right, we are watching an ugly spectacle of two law enforcement agencies, unable to marshal science on their side, aggressively fighting against science with lawyers.

It is, sad to say, part of a long-standing cultural tension between arson investigators and scientists.

In fact, there was a federal case in the 1990s in which the International Association of Arson Investigators argued in a friend-of-the-court brief that arson experts shouldn't be subject to what is called a "Daubert" test before being allowed to testify in federal court.

That test requires that a judge act as a "gatekeeper" on expert testimony. The judge is to exclude scientific testimony if it doesn't pass certain tests, including whether it is based on solid scientific methodology.

The IAAI actually argued that members shouldn't be subject to that test because what they do is "less scientific" than what is required under "Daubert."

But the reality is that when arson experts testify to juries, the juries believe that their conclusions are based on real science, not lesser science.

Some not up to speed

What's more, the past 20 years have brought considerable scientific advancement to the arson field, though many arson investigators clearly haven't caught up. They're not alone.

The Texas Forensic Science Commission was formed because the Houston Crime Lab and other scandals repeatedly have shown that science presented in Texas criminal courtrooms is entirely too often a lesser science.

There is no reason to exclude arson from the scope of the commission, since scores of people sit in our prisons based on arson investigators' testimony.

It is frightening that even though they can't produce a scientist who doesn't believe the Willingham arson investigation was botched, both the Corsicana Police Department and the State Fire Marshal's Office maintain that it was a good investigation.

If the attorney general's office finds that the law excludes arson investigators, it's time for the Legislature to fix the law."

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The story can be found at:

http://www.chron.com/disp/story.mpl/metropolitan/casey/7397786.html

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PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:

http://www.thestar.com/topic/charlessmith

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;