"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;
