"For the extended families, there is also much pain. The child’s death is their loss too. Some family members will be prepared to sacrifice everything to defend their loved one against any criminal charge. Others may be convinced of the suspected parent’s guilt. Splits can emerge that remain painful for years, if not forever. If the person suspected is not a parent but the child’s caregiver, such as a babysitter, there can be similar trauma. Babysitters are often young people them- selves. The shock of being suspected of killing a child in their care is profound.The families of young suspects will also likely exhaust all the family’s resources to come to their defence. A suspected caregiver who is charged faces the same lost freedom and the same community stigma as a suspected parent. For the community itself, the death of a child in criminally suspicious circumstances is deeply disturbing. Children are the community’s most precious and most defenceless asset. The sense of outrage and the urgent need to understand what happened are overwhelming. Thus, the tragedy of a child who dies unexpectedly in suspicious circumstances has many victims.........
Before the hearings began, I had the benefit of meeting with individuals who were directly affected by the events that precipitated the Inquiry. They spoke poignantly about the pain of losing a child, and the added stress and shame that follow when the loss becomes the subject of criminal proceedings. The central role that flawed pediatric forensic pathology played in these cases was unmistakeable."
JUSTICE STEPHEN GOUDGE;
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BACKGROUND: In february, 2011, The Ontario Court of Appeal quashed the murder conviction of the Toronto mother who was imprisoned for life on the basis of flawed testimony from pathologist Charles Smith. “We recognize this has been a terrible ordeal for you and it’s tragic it has taken so long to uncover the flawed pathology that led to your conviction in 1995,”Justice Marc Rosenberg told Tammy Marquardt Thursday morning. “We agree … there was a miscarriage of justice,” Rosenberg said on behalf of a three-judge panel. The 38-year-old Scarborough native spent nearly 14 years in prison after being convicted of murdering her 2-year-old son, Kenneth Wynne. While other victims of Smith’s mistakes have since been acquitted, Marquardt’s “dilemma” is that fresh evidence in her case only allows a court to go as far as ordering a new trial, Lockyer told the court. The evidence is still ambiguous about how the child died but strongly suggests he died as a result of an epileptic seizure, Lockyer said. In his short life, Kenneth had suffered from asthma and pneumonia and had been treated for seizures eight times. Smith opined the cause of death was asphyxia, likely the result of smothering or suffocation. That remains a possibility, given an absence of hard evidence about why Kenneth died, the appeal court was told on Thursday. At the same time, two neurologists from the Hospital for Sick Children who independently examined the boy’s medical records found his demise was consistent with a sudden unexplained death from epileptic seizure. While three-judge panel set aside Marquardt’s conviction, the Crown has not indicated whether it intends to proceed with a new trial. The court, meanwhile, extended Marquardt’s bail. The appeal court decision came after forensic experts reviewed the conclusions of the former pediatric pathology superstar and found them illogical and “completely” unscientific. Smith’s evidence dovetailed with the Crown’s theory at the time, that Marquardt had suffocated Kenneth in a moment of anger and frustration. But he was wrong in supporting the Crown’s theory and his testimony denied the jury the option of concluding the child had instead died as a result of a seizure, Crown counsel Gillian Roberts told the court. Marquardt said she found him twisted up in bed sheets and obviously distressed. He was taken to hospital, but died three days later, after being taken off life support. Nearly two years ago, Marquardt was released on bail. She had been incarcerated in the Grand Valley women’s prison in Kitchener. Kenneth died 17 years ago, in October, 1993. Her other sons, who she named Keith and Eric live somewhere in Canada, but never had further contact with their mother.
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PUBLISHER'S NOTE: My numerous posts on the Tammy Marquardt case received an extraordinary number of hits from around the world. I suspect that this response can be explained by the fact that the case brought home the horrifying impact that the wrongful conviction based on Charles Smith's sorely flawed opinion and his perverse biased testimony had on Tammy and her family. Kenneth tragically dead; his two siblings seized and put up for adoption; the young grieving mother being branded as her sick child's murderer and sent to prison for more than thirteen years - such important years in a young woman's life. I was extremely impressed by Justice Stephen Goudge's profound empathy for Smith's victims. Although Justice Goudge was not permitted to award compensation, he made a point to meet with as many of them as possible before his public inquiry into many of Smith's cases began. Justice Goudge prefaced his report with a moving account of the death of a child and the criminal justice system.
"The sudden, unexpected death of a child is a devastating event for parents, for family, and for the entire community. If something suggests that a criminal act may have been involved, the devastation takes on a further tragic dimension," Justice Goudge's account begins.
"This reality lies at the core of the cases we examined at this Inquiry. Each case tells the story in its own way. But the theme remains as constant as it is powerful," the account continues.
"For the parents, the loss is shattering. Children are not supposed to die unex-
pectedly, and certainly not before their parents. If a suspicion arises that a parent killed the child, the death is only the beginning of the nightmare. The parent is immediately subjected to an intensive police investigation that inevitably stands in the way of any grieving process. If a charge is laid, it is very likely to be a serious one, with the parent removed from the home and often held without bail. The child protection authorities will likely seize the surviving children, remove them from the home, and place them in care. Emotions in the community will often run high. Each new trauma builds on the ones before.
For the surviving children, the impact is profound as well. They are often very
young themselves, yet must cope with the sudden inexplicable loss of a sibling. If one of their parents is suspected, the children will likely be removed from their home and family, sometimes for years or even permanently. The same fate may befall children born later to the parents. They must live with the horror that the parent they love is suspected of killing a brother or sister.
For the extended families, there is also much pain. The child’s death is their loss too. Some family members will be prepared to sacrifice everything to defend their loved one against any criminal charge. Others may be convinced of the suspected parent’s guilt. Splits can emerge that remain painful for years, if not forever. If the person suspected is not a parent but the child’s caregiver, such as a babysitter, there can be similar trauma. Babysitters are often young people them-selves. The shock of being suspected of killing a child in their care is profound. The families of young suspects will also likely exhaust all the family’s resources to come to their defence. A suspected caregiver who is charged faces the same lost freedom and the same community stigma as a suspected parent. For the community itself, the death of a child in criminally suspicious circumstances is deeply disturbing. Children are the community’s most precious and most defenceless asset. The sense of outrage and the urgent need to understand what happened are overwhelming.
Thus, the tragedy of a child who dies unexpectedly in suspicious circumstances has many victims. It becomes vital for society to deal with the tragedy in a way that is right and just, and that allows all those affected to come to terms with it. The criminal justice system is central to this task. It must seek to determine whether there is truth to the suspicion that the child was killed and, if so, by whom. Despite the complex and difficult challenges of investigating and adjudicating pediatric death cases, the criminal justice system must do so correctly and fairly, often in a highly charged emotional atmosphere. The consequences of failure in these circumstances are extraordinarily high.
For the parent or caregiver who is wrongly convicted, it almost certainly means time, perhaps years, unnecessarily suffered in jail, a shattered family, and the stigma of being labelled a child killer. Even if the criminal justice system stops short of conviction, family resources, both financial and emotional, are often exhausted in the struggle. And in either case, there may be a killer who goes unpunished. For the community at large, failure in such traumatic circumstances comes at a huge cost to the public’s faith in the criminal justice system – a faith that is essential if the justice system is to play the role required of it by society.
The cases we examined demonstrate how vital the role of the pathologist can be in the success or failure of the criminal justice system in coping with the sudden,
unexpected death of an infant in criminally suspicious circumstances. The suspected parent or caregiver will often have been the only person in contact with the child in the hours preceding death. There may be little additional evidence. But if the pathologist determines the cause of the child’s death, that opinion may be enough to play a decisive role in whether someone is charged and convicted. In these circumstances, the criminal justice system must be able to rely confidently on the opinion if it is to deliver a just outcome. The fate of the person suspected, the family, the surviving children, and the peace of mind of the community all depend on it. The far-reaching human consequences of flawed forensic pathology provided the context for our work from the very beginning. Before the hearings began, I had the benefit of meeting with individuals who were directly affected by the events that precipitated the Inquiry. They spoke poignantly about the pain of losing a child, and the added stress and shame that follow when the loss becomes the subject of criminal proceedings. The central role that flawed pediatric forensic pathology played in these cases was unmistakeable."
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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 found at:
http://www.thestar.com/topic/charlessmith
Information on "The Charles Smith Blog Award"- and its nomination process - can be found at:
http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html
Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;
