PUBLISHER'S NOTE: Guilty plea series: Part 1; Dinesh Kumar: The Innocence Project has demonstrated a compelling need to expose the disturbing number of convictions in America attributed to guilty pleas rendered by innocent people in America. However, the problem of false guilty pleas is is common to many other jurisdictions, including Ontario, where I reside. I would like to make my own contribution to the Innocence Project's campaign, by running a series of posts taken from this Blog and elsewhere, which vividly illustrates the point. (Many of the posts were based on reports by my friend and colleague the late Tracey Tyler. the Toronto Star's talented legal affairs reporter for many years, until her untimely death. She had no patience for miscarriages of justice.) A common factor in most of the cases in this series is the presence of former doctor Charles Smith, the namesake of this Blog. In each case, the defence lawyer recommended a guilty plea to a lesser offence in order to avoid the ramifications of a conviction on the more serious charge - almost guaranteed by the now notorious former doctor's involvement in the case - in spite of the client's protests of innocence.
Harold Levy: Publisher; The Charles Smith Blog;
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Friday, January 21, 2011
DINESH KUMAR; HIS LAWYER SAID SMITH WAS "LIKE A GOD"; OPINIONS ALMOST IMPOSSIBLE TO CHALLENGE IN COURT; UP-DATED TORONTO STAR STORY;
"What’s not clear is whether the attorney-general’s ministry recognized back in 1992 that it never really had much of a case.
What is clear is that Kumar felt he had little choice but to plead guilty after being told by his own lawyer that Smith was “like a god” and his opinions would be next to impossible to challenge in court.
Addressing Kumar in the ornate surroundings of the Osgoode Hall courtroom Thursday, Rosenberg said the court understood why he decided to enter a guilty plea back in 1992."
LEGAL AFFAIRS REPORTER TRACEY TYLER: THE TORONTO STAR;
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PUBLISHER'S NOTE: Dinesh Kumar was exonerated on Januray 20, 2011, - even though he had pleaded guilty in 1992 to criminal negligence causing his son Gaurov's death in order to avoid a murder conviction at the hands of the then revered Dr. Charles Randal Smith. The Crown joined with defence counsel in seeking the quashing of that conviction and a verdict of acquittal. This Blog ran a series of nine posts in May and June 2008 to highlight this tragic, disturbing case and see what could be learned from it. Justice was delayed so long for Mr. Kumar and his family. (Almost twenty years); They should have been treated with sympathy as mourning parents. Instead they were thrust into a hellish existence after Dr. Charles Smith became involved in their lives. Indeed, Justice Marc Rosenberg acknowledged the "terrible toll" the ordeal had exacted on Mr. Kumar and his family over almost twenty years - and said the Court understood why Mr. Kumar had felt compelled to plead guilty to a criminal offence he had not committed. The Court accepted the fresh evidence, quashed the conviction and entered an acquittal. The written decision is to be released shortly and will be published in full on the Charles Smith Blog. Of particular interest will be whether the Court of Appeal will accede to defence lawyer James Lockyer's request for a ruling that Shaken Baby Syndrome, once considered a "diagnosis" has been shown through developments in forensic pathology to be no more than a "hypothesis." (The Crown is seeking a narrow ruling that does not focus directly on the validity of shaken baby syndrome); Mr. Kumar and his family deserved much better from our criminal justice system. I wish them well.
HAROLD LEVY: PUBLISHER; THE CHARLES SMITH BLOG;
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"Sixteen years after his conviction in the death of his infant son, himself a victim of a bungled investigation by pathologist Dr. Charles Smith, Dinesh Kumar still carries a photograph of young Gaurov," the Toronto Star story by Legal Affairs reporter Tracey Tyler published on January 20, 2011 begins, under the heading, "A father’s 20-year battle for exoneration."
"Sixteen years after his conviction in the death of his infant son, himself a victim of a bungled investigation by pathologist Dr. Charles Smith, Dinesh Kumar still carries a photograph of young Gaurov," the story continues.
"Dinesh Kumar walked up the temple steps and paused while a priest sounded a bell.
Opening a rich red and gold shawl, the men draped it around a statue of Durga Mata, the all-powerful Hindu goddess responsible for moral order and righteousness in the universe.
The ritual, said Laxminarayan Kumbaria, priest at the Jai Durga Hindu Society on Markham Rd., is a form of giving thanks for wishes that come true.
And that finally happened for Kumar on Thursday.
Nearly two decades after a prominent pathologist’s mistakes wrongly implicated him in the death of his 5-week-old son, Guarov, the Ontario Court of Appeal quashed Kumar’s conviction and acquitted him outright.
“I am very happy,” said Kumar, 44, who trained as a goldsmith in Punjab and immigrated to Canada in 1991, only to find himself quickly enmeshed in a legal nightmare.
Speaking on behalf of a three-judge panel, Justice Marc Rosenberg told Kumar the court appreciates “the terrible toll this case has taken on you and your family over these last 20 years.
“We can now say the conviction in your case was unreasonable,” he told Kumar, who was accompanied by his wife, Veena, and son Saurob, 19.
Forensic experts from North America and England who have examined the evidence in the case since 2006 have concluded Gaurov probably died of natural causes resulting from a birth injury.
But back in 1992, Dr. Charles Smith, once Canada’s superstar of pediatric forensic pathology, concluded after performing an autopsy that the child had been shaken to death.
Kumar was charged with second-degree murder.
Despite the seriousness of the charge, the Crown offered him an incredible deal just six months into the case, telling Kumar that if he pleaded guilty to criminal negligence causing death, he would get a 90-day jail sentence to be served on weekends.
He took the deal.
What’s not clear is whether the attorney-general’s ministry recognized back in 1992 that it never really had much of a case.
What is clear is that Kumar felt he had little choice but to plead guilty after being told by his own lawyer that Smith was “like a god” and his opinions would be next to impossible to challenge in court.
Addressing Kumar in the ornate surroundings of the Osgoode Hall courtroom Thursday, Rosenberg said the court understood why he decided to enter a guilty plea back in 1992.
Smith was found to have made mistakes in more than 20 child death autopsies.
A public inquiry headed by Justice Stephen Goudge later concluded Ontario’s chief coroner and deputy chief coroner had a “symbiotic” relationship with their star pathologist, propping him up and ignoring warning signs because their office was enhanced by his reputation.
Acting on Goudge’s recommendations, the Ontario government has set up a compensation process for families damaged by Smith’s mistakes. Those administering the scheme have already been in touch with Kumar, said James Lockyer, a lawyer representing Kumar through the Association in Defence of the Wrongly Convicted.
On the steps of the courthouse after he was acquitted Thursday, Kumar was asked by a reporter if he had a photograph of Gaurov. He reached into his pocket.
“This will be with me until the day I die,” he said.
For many years, Kumar had pledged that if he were ever acquitted, he would post a copy of the decision at his temple.
Despite Smith having attained notoriety for all the wrong reasons, Kumar said he knows some members of the community have continued to suspect him. And he wanted to put a stop to that.
The court has yet to release its decision, so Kumar instead handed a copy of the newspaper story about his acquittal to temple president Lajpat Gognar.
He also knelt before a silver tray filled with oils and candles. Veena and Saurob knelt beside him.
“This,” said Yogrij Verma, Veena’s brother, “is a precious day for them.”"
http://www.thestar.com/news/article/925085--a-father-s-20-year-battle-for-exoneration
See also Innocence Canada account of Dines Kumar's plea, by Sarah Harland-Logan, at the link below; "Dinesh’s Guilty Plea: "Dinesh knew that he had done nothing to harm his son. However, he also knew that if convicted, he could face a lengthy prison term. Moreover, the prosecution would call Smith as their star witness, and Dinesh’s lawyer, Mr. David Gorrell, had informed him that Smith was seen as “a God” in the courtroom.[8] If Dinesh were found guilty and imprisoned, he would be abandoning his wife and remaining son, who depended on him for financial and personal support, especially since Veena had not yet recovered from her surgery. On top of everything else, he might be deported.[9] However, Dinesh had another option. The Crown offered him a plea bargain that would change his situation completely. If he pled guilty to criminal negligence causing death, then he would only spend 90 days in jail, to be served on weekends, and the police would not report his case to immigration officials. Instead of his family being torn apart, Dinesh would be allowed to live with Veena and Saurob. Both his lawyer and his wife encouraged him to take the deal so that the family could try to move on with their lives.[10 As Dinesh described it, “We were all scared of the murder charge. My lawyer told me that we did not have any way to challenge the testimony of Dr. Smith. So I agreed, after much discussion with my family, to plead guilty…. It was the hardest decision I ever had to make. I do not want my guilty plea to ever be interpreted to mean that I did anything to harm Gaurov. I did not. My wife knows this too.”[11] On December 3, 1992, Dinesh pled guilty to criminal negligence causing his son’s death. He was sentenced to 90 days imprisonment and two years probation. After his conviction, Dinesh’s life eventually “returned to normal,” but he never lost his “sense of shame that … [he] had had to admit to causing Gaurov’s death,” despite knowing that he was innocent."
https://www.aidwyc.org/cases/historical/dinesh-kumar/
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. 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/
