MARIA SHEPHERD CASE PART ELEVEN; SELECTED SECTIONS; THE EFFECT OF THE PROPOSED FRESH EVIDENCE;

"DR. SMITH’S TESTIMONY WAS ESSENTIAL TO BOTH ALLEGATIONS. HIS CLAIM THAT THE SCALP BRUISING HAD TO HAVE RESULTED FROM AN ASSAULT WAS WRONG. WITHOUT HIS INTERPRETATION OF THE BRUISE UNDER THE SCALP AND THE ASSOCIATED BLEEDING, THE CROWN COULD NOT LINK THE INJURY EITHER TO THE APPLICANT OR TO THE DEATH OF KASANDRA. HIS FAILURE TO ACKNOWLEDGE THAT THE PATHOLOGY LEFT NATURAL CAUSES OPEN AS A CAUSE OF DEATH IS NOW CHALLENGED. THE CROWN’S CASE WOULD NOW STILL INCLUDE THE APPLICANT’S STATEMENTS BUT, IN THEM, SHE ONLY DESCRIBED MINOR PHYSICAL CONTACT WITH KASANDRA THAT COULD NOT HAVE RESULTED IN ANY HARM TO HER, MUCH LESS DEATH. THE NEW EVIDENCE PROVIDES SCIENTIFIC NATURAL CAUSE ALTERNATIVES FOR WHY KASANDRA DIED."

AFFIDAVIT OF LAWYER ALISON CRAIG; FILED IN ONTARIO COURT OF APPEAL;

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Many insights into the wrongful conviction of Maria Shepherd - and the role played in it by Dr. Charles Randal Smith - can be gleaned from the affidavit filed in the Ontario Court of Appeal by Lawyer Alison Craig, an associate of Lockyer, Campbell, Posner, who, along with several other lawyers, did a superlative job of representing Ms. Shepherd and other victims of miscarriages of justice at the Goudge Inquiry; Because this affidavit is extremely lengthy I will be publishing selected sections:

Today's section; (Final section to be included in this series): The Effect of the Proposed Fresh Evidence:

"I am of the opinion that there is substantial merit in the proposed appeal. If an extension of time is granted, the appeal would be based on fresh evidence to be adduced under section 683(1)(d) of the Criminal Code. The focus of the fresh evidence would be the opinions of Dr. Whitwell and Dr. Pollanen, the explanation of the Applicant as to why she pled guilty at her trial in 1992, and further expert opinions that the Applicant will seek if she is granted an extension of time.

The Crown’s case at trial depended heavily on the testimony of Dr. Smith. To succeed, the prosecution had to prove two main allegations:

● that the Applicant had committed an act of assault against Kasandra on April 9th, 1991; and

● that this act had caused the brain injury – and the fatal swelling – which led to Kasandra’s death.

Dr. Smith’s testimony was essential to both allegations. His claim that the scalp bruising had to have resulted from an assault was wrong. Without his interpretation of the bruise under the scalp and the associated bleeding, the Crown could not link the injury either to the Applicant or to the death of Kasandra. His failure to acknowledge that the pathology left natural causes open as a cause of death is now challenged. The Crown’s case would now still include the Applicant’s statements but, in them, she only described minor physical contact with Kasandra that could not have resulted in any harm to her, much less death. The new evidence provides scientific natural cause alternatives for why Kasandra died.

Dr. Smith’s testimony decisively linked the injury under Kasandra’s scalp to the Applicant’s description of a sweeping motion toward her with the back of her hand. The linkage was the “overlay” of the Applicant’s wristwatch on the configuration of the bruise under her scalp. In this way, the injury itself was able to identify the person who had inflicted it. The opinions of Dr. Whitwell and Dr. Pollanen that this inference had no scientific foundation and was “misleading” and “pseudo-scientific” undermine the Crown’s assertion that the Applicant caused the bruise under Kasandra’s scalp. As well, Dr. Smith’s testimony that a household accident could not have caused such an injury, and its location was incompatible with a fall, is discredited by Dr. Whitwell.

The Applicant’s statements to the police and others did not constitute an admission by her that she used force on Kasandra that amounted to an unlawful assault. She described a non-violent correcting motion on a recalcitrant child, at a time when she had to assist her infant daughter. Her action did not cause Kasandra to fall or cry. If it was a push, as she has so often described it, it was no more than legitimate and lawful form of parental correction. Even a “hit”, depending on its force, could fall into this category. But the testimony of Dr. Smith put an entirely different face on what she had done. Dr. Smith translated her action into a blow of such magnitude that it left the imprint of her wristwatch under her scalp, and led to her death. The fresh evidence breaks the link between the Appellant and the bruising.

It is now known that Kasandra had a previous brain injury, that was detailed by physicians at the Hospital for Sick Children in the last hours of her life; it was detectable (though missed at the time) in x-rays taken at Peel Memorial Hospital during Kasandra’s admission in February of 1991; and its remnants were visible at autopsy. In February, Kasandra developed an accumulation of disturbing symptoms, potentially indicative of brain damage. They included repeated vomiting; lethargy and sleepiness; weight loss; and developmental regression. These symptoms were never cured, nor their cause diagnosed. But for a short abatement, they were continuous from February until her death in April. This history was removed by Dr. Smith as being related to her death; now the evidence suggests a possible correlation. This accords with commonsense; her symptoms, that carried on for a month of hospitalization, suggest an underlying cause of disease for her death.

The “status epilepticus” suffered by Kasandra diagnosed at the time of Kasandra’s death ,and noted by Dr. Whitwell and Dr. Pollanen, refers to a continuous series of seizures. This could have caused the fatal edema. The epilepsy may have been a natural disease process or consequent on trauma. But Dr. Smith’s opinions only allowed for it being a symptom, or consequence, of the significant blow that put her into a coma.

The Applicant’s affidavit explains how she came to enter a plea of guilty at her trial. The main factor was Dr. Smith’s opinions which she and her lawyer viewed as beyond challenge, coupled with her own emotional vulnerability resultant from the loss of custody of her four children with the prospect of possible permanent separation if convicted and sentenced following a contested trial. It is my opinion that there is an appreciable likelihood that this Court will accept the Applicant’s explanation on these points and conclude that the guilty plea can be set aside, and her conviction quashed.

In these circumstances, I believe it would be in the interests of justice to allow the Applicant to appeal her conviction, which was based on what is now known and acknowledged to be flawed pathology."

Harold Levy...hlevy15@gmail.com;

MARIA SHEPHERD CASE: PART TEN; SELECTED SECTIONS; DR. SMITH'S CREDIBILITY TODAY;

Many insights into the wrongful conviction of Maria Shepherd - and the role played in it by Dr. Charles Randal Smith - can be gleaned from the affidavit filed in the Ontario Court of Appeal by Lawyer Alison Craig, an associate of Lockyer, Campbell, Posner, who, along with several other lawyers, did a superlative job of representing Ms. Shepherd and other victims of miscarriages of justice at the Goudge Inquiry; Because this affidavit is extremely lengthy I will be publishing selected sections;

Today's section: Dr. Smith’s Credibility Today:

"There was a large amount of evidence led at the Goudge Inquiry that Dr. Smith was held in the highest regard in both medical and legal and judicial circles in the 1980s and 1990s, and was considered one of the world’s premier experts in the field of pediatric forensic pathology. The vast majority of defence lawyers viewed his evidence as unassailable. At the Inquiry, evidence was given that described the reaction of defence counsel and their client in terms similar to those expressed in by Tom Wiley, the Applicant’s counsel at her trial. The absolute confidence placed by so many in Dr. Smith’s work was misplaced. Commissioner Goudge referred to Kasandra’s case in his Report:

A second area of concern is that, on occasion, Dr. Smith expressed early informal opinions to the police in far too categorical terms. In Kasandra’s case, Dr. Smith performed the post-mortem examination and discovered a “donut-shaped” hemorrhage on Kasandra’s scalp. After observing the shape of the injury, Dr. Smith told the police to search Kasandra’s home for rounded items, such as a knob on a cupboard or something with a distinctive geometric shape that could have either a flat surface or a ring-shaped feature. The police took a women’s wristwatch from Kasandra’s home to Dr. Smith, who found it to be a good match for the injury.

At the preliminary hearing in the case, Dr. Smith told the court that the configuration of the wristwatch was consistent with the configuration of the area of hemorrhage. It was therefore reasonable to conclude that the watch was responsible for the fatal blow to Kasandra’s head.

This method of interpretation was wrong. At the Inquiry, Dr. Whitwell and Dr. Pollanen testified that Dr. Smith’s overlay of the watch onto the scalp contusion was an incorrect and misleading approach to the interpretation of that wound. Although overlaying an object onto an injury might be useful in some circumstances – for example, where there is a patterned object and an external injury – it was inappropriate in this case because of the depth and location of the injury. The scalp contusion was not an external injury – it was in the deep tissues of the scalp, rather than the surface – and the presence of thick hair and scalp tissues altered the appearance of the injury, making such a technique useless. According to Dr. Pollanen, Dr. Smith’s interpretation was really “a pseudoscientific wound-weapon matching analysis”. In this case, all that could be said from the scalp injury was that there was an impact of some sort. To suggest that a particular object caused the injury was misleading. Dr. Smith’s suggestion to the police, made on superficial analysis, led to an improper, inaccurate, and misleading interpretation of the evidence. This suggestion should not have been given at all."

hlevy15@gmail.com;

MARIA SHEPHERD CASE: PART NINE; SELECTED SECTIONS; THE GOUDGE INQUIRY AND DISCOVERIES ABOUT DR. SMITH;

"DR. WHITWELL NOTED THAT DR. SMITH’S ASSESSMENT OF KASANDRA’S INJURIES DID NOT REASONABLY MATCH THE PHOTOGRAPHS OR HISTOLOGY IN THE CASE, AND THAT HIS TESTIMONY FROM THE APPLICANT’S PRELIMINARY HEARING WAS NEITHER REASONABLE NOR BALANCED. SHE ALSO EMPHASIZED THAT THE “POSSIBILITY OF EPILEPSY WAS NOT FULLY EXPLORED”"

AFFIDAVIT OF LAWYER ALISON CRAIG: FILED IN ONTARIO COURT OF APPEAL;

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Many insights into the wrongful conviction of Maria Shepherd - and the role played in it by Dr. Charles Randal Smith - can be gleaned from the affidavit filed in the Ontario Court of Appeal by Lawyer Alison Craig, an associate of Lockyer, Campbell, Posner, who, along with several other lawyers, did a superlative job of representing Ms. Shepherd and other victims of miscarriages of justice at the Goudge Inquiry; Because this affidavit is extremely lengthy I will be publishing selected sections:

Today: The Goudge Inquiry and Discoveries about Dr. Smith:

"In November, 2005, the Chief Coroner of Ontario announced that a review would be conducted by an international group of forensic pathologists of forty-five criminally suspicious pediatric autopsies in which Dr. Smith had either conducted the autopsy or provided a consulting opinion. The results of the review were announced in April, 2007, and revealed a consensus that Dr. Smith had made serious and fundamental errors in twenty of the files that had been reviewed, including the case of Kasandra Shepherd.

In early 2007, the Applicant was contacted by counsel for the Association in Defence of the Wrongly Convicted (AIDWYC) and advised of these developments. She was both relieved and excited at the opportunity to have her case revisited, and at the prospect of finally getting some answers about what had happened to Kasandra. After a personal meeting with Commissioner Goudge, she authorized counsel to assist her in re-examining her manslaughter conviction.

Since then, a number of documents have been retrieved from the Applicant’s trial counsel (including the entire Crown Brief), from the Respondent, from the Chief Coroner’s office and through the Goudge Inquiry. A helpful overview of the case was prepared by Commission Counsel at the Goudge Inquiry in the form of an Overview Report. Most recently, in April, 2009, the Applicant obtained a transcript of the facts read in on her guilty plea on October 22, 1992.

The Opinion of Dr. Whitwell:

Dr. Helen Whitwell, a forensic pathologist for the Home Office in England, and the former head of the Department of Forensic Pathology at the University of Sheffield, was retained by the Office of the Chief Coroner to review Kasandra Shepherd’s case. She examined an extensive body of materials including Dr. Smith’s post-mortem report and supporting documentation, police reports, photographs, histological slides, x-rays, records from the Children’s Aid Society, and transcripts of Dr. Smith’s evidence at the Applicant’s preliminary hearing. In the short form Autopsy Report Review Form dated December 7, 2006, which she completed for the Office of the Chief Coroner, Dr. Whitwell noted that Dr. Smith’s assessment of Kasandra’s injuries did not reasonably match the photographs or histology in the case, and that his testimony from the Applicant’s preliminary hearing was neither reasonable nor balanced. She also emphasized that the “possibility of epilepsy was not fully explored”. The Review Form concluded:

Difficult case – there is evidence of impact injury to the back of the head with smaller areas elsewhere, some of which may be old. The overlay impression with the watch is complete nonsense for a sub-scalp bruise. Unreliable in the extreme. Discussion in testimony re: shaking – again in vogue during this era. [emphasis added].

For the Goudge Inquiry, Dr. Whitwell produced a more detailed Medico Legal Report outlining her opinions on Kasandra’s case. In it, she was critical of Dr. Smith’s use of overlays to give significance to the “donut-shaped” scalp contusion:
[Dr. Smith’s] report incorporates a diagram of what is described as a doughnut-shaped area of contusion. The written description is a super-elliptical-shaped area of hemorrhage with a pale central core. Overlays of the post-mortem photographs were done with a lady’s wristwatch over the internal scalp bruise.

This overlay is not appropriate as it is scientifically incorrect and misleading. The bruise may or may not represent an area of impact where the object is projecting. Such a scalp bruise may also [be] see n where there is an impact with a flat surface such as in a fall. In any event overlays should only be used in external injuries , for example where there is a question that a mark may be caused by a shoe. The thick hair and scalp tissues alter the appearance on the internal aspect to make such a technique meaningless.[emphasis added].

Dr. Whitwell also assessed Dr. Smith’s testimony from the Applicant’s preliminary hearing, and criticized several of his key conclusions:

This, from the material available, is the first time that Dr. Smith’s opinion in relation to the case is given… he goes on to describe in detail the sub scalp bruise identified in the post-mortem report. It appears when Dr. Smith found the bruise at post-mortem examination he indicated to the police to go and search for objects which in his view may have caused such a bruise. The police apparently did this and showed him a lady’s wristwatch. This is shown in the overlay photographs.

He then continues in his testament to indicate that the shape of the watch is consistent with the shape of the injury. This is incorrect. It is also misleading to use the term “consistent with”.
He then continued to give evidence that the subdural hemorrhage was located in the occipital part of the brain in the same region as the point of impact, and indicates that whatever caused the soft tissue hemorrhage caused a subdural hemorrhage. This is of concern as following impact subdural haematoma may occur at any area of the brain and the location cannot be taken to necessarily correlate with a point of impact.

Further testimony is given as to the degree of force necessary to produce such an injury and any type of incident which may cause such an injury. This includes testimony indicating that accidental falls around the home do not cause death. This is incorrect although other clinicians at that time may have given a similar opinion.
Dr. Smith also indicates in his testimony that the point of impact at the back of the head almost certainly precludes an accidental fall. This is incorrect as the back of the head is a common point of impact in a fall, whether accidental or not.[emphasis added].

Dr. Whitwell concluded her report with the following assessment of Dr. Smith’s work and his opinion on the case:

Dr. Smith showed a lack of forensic knowledge relating in particular to the bruise over the back of the head and its causation . He does not concede in testimony to the possibility of an accidental fall causing the injury. The overlay was totally inappropriate and misleading.

Also of concern is the linking of the location of the subdural bleeding with an impact site. Following impact subdural hemorrhage may occur over any area of the brain and the location cannot be taken to necessarily correlate with an impact site.

Dr. Smith did not consider the potential for underlying disease (epilepsy) to be the main neuropathological cause of death.
…

The diagram of a doughnut-shape bruise contained within the report was inappropriate and misleading.[emphasis added].

Testimony at the Goudge Inquiry:

a) Dr. Whitwell’s Testimony;

Commission Counsel asked Dr. Whitwell for her opinion as to the cause of death in Kasandra’s case. She responded:
A. Well, again, that’s – that’s difficult. I would summarize the findings as evidence of recent impact to the head. I would indicate that there’s evidence of old brain damage of brain injury, brain hemorrhages and then discuss the issue of the – the epilepsy. And possibly – from the pathology, that’s – that’s as far as you can take it.
Q. If you were asked to opine in a post-mortem report as to the cause of death in this case, what would you say?

A. Well, again, that’s – that is difficult. In fairness, it could relate to an acute head injury. It could relate to status epilepticus. There are two options, you can either give an unascertained or you can’t come to a conclusion, or you can go through a list of possibilities and then attempt to come to a conclusion.

Commissioner Goudge asked Dr. Whitwell some questions of his own:

Q. If you did that, how – just unpack it a little bit. How would you do it if you used that option as opposed to the unascertained option?
A. Well, what one would do would be to comment on all the features of the case.
Q. Right.
A. And then, for example, if it was the opinion that it was the acute head injury or there was sufficient evidence of an acute head injury to cause death then at the end say, this, in my opinion, is the most likely cause of death. And likewise with the – with the epilepsy.

Q. Okay. What is your view?

A. My view is that this is a difficult case and I think there are potentially two – there’s a number of options. That firstly, there’s evidence of old – old brain damage, that in itself can give rise to epilepsy. You’ve also got evidence of a recent head injury. Whether or not that has had a major contribution to death, I think, is unclear.

Q. So there are the two possible causes, in your view –

A. Yes.

Dr. Whitwell addressed Dr. Smith’s assertion that the bruise underlying Kasandra’s scalp could only have been caused by a blow from an object, rather than from a fall or similar mechanism:
Q. Can you tell whether this is an impact injury as a result of a child being struck by an object as opposed to the child’s head striking an object?
A. No, I can’t.

Later in her testimony, Dr. Whitwell was asked again about the issue. She reiterated:

I don’t think one can come to that conclusion. It – it’s an impact. It could have occurred in a number of ways.

In regards to Dr. Smith’s opinion that the similarly located subdural hemorrhage and bruise to the scalp were evidence of a direct application of force to that area, Dr. Whitwell explained:

I don’t think that you can link the location of the subdural hemorrhage with an impact point. It generally takes place over any area of the brain and so the location of the impact doesn’t necessarily have any bearing on it… the bleeding doesn’t correlate with the impact site.

Dr. Whitwell elaborated on her concern about Dr. Smith’s use of overlays and his conclusions about the source of the bruising on Kasandra’s scalp:
A. … in my opinion, it was inappropriate. The bruise noted was in the deep tissues of the scalp. Overlays of objects, such as footwear, can be useful in correlating where it’s – external injuries, where – where you have a patterned object.

But in this case, all one can say here is that there has been an impact of some sort and you cannot use an overlay in this situation because of the location of the bruise. There is hair, and then the scalp, and then the bruise is deep, so it’s an inappropriate method.
Q. Because the bruise is deep.

A. Because the bruise is deep. They – an overlay – if – if you see something externally, which is a patterned injury, for example a shoe print or something, then in those circumstances that would be appropriate because you’d have a direct – almost direct contact. But where you’ve got separation by the hair, the scalp tissues, it – its simply not appropriate.

Q. It does not tell you anything?

A. It doesn’t tell you – it doesn’t tell you anything. And in – in fact, to suggest an object has caused that deep bruise is misleading; a particular object… that is an incorrect and misleading statement. You just can’t make that deduction.[emphasis added].

In response to a question by Commission Counsel, Dr. Whitwell testified that she was not aware of any literature or studies which would support the use of overlays in similar circumstances. Dr. Pekka Sauko, one of the other four external reviewing pathologists, testified as a second panelist with Dr. Whitwell. He “fully agree[d]” with Dr. Whitwell’s opinions in this regard.

In Dr. Whitwell’s opinion, it could not be assumed that the brain damage which led to Kasandra’s death was necessarily a result of trauma. A question by Commission Counsel as to whether Kasandra suffered from any medical conditions that could have caused her death led to the following exchange:

A. My understanding from the – the history was that prior to admission, she appeared to have a number of fits, and this raises the question as to whether or not her condition on admission was related to fits as a primary pathology.
. . .

Q. Can the pathology alone in this case tell us whether or not this was a case that – where this – where the child died as a result of a – an inflicted head injury or died as a result of an epileptic fit?
A. No, the pathology of the epilepsy – brain damage – can’t tell you if it was primary or secondary.

Dr. Whitwell considered there was a potential that an underlying disease of epilepsy was the neuropathological cause of Kasandra’s death.

Dr. Whitwell’s overall view of the pathology in Kasandra’s case was captured in her view that in the United Kingdom, standing by itself, it would not likely have supported the laying of a charge. She said:
A. I mean, one could say well, you know, a number of scenarios, or two (2) scenarios are possible. It’s rather, then different from the issue of what happens in the Court scenario, because in – in England and Wales, would this actually have got to Court in the first place. Do you see what I mean?

Q. And the answer would be no because of an insufficient certainty about cause of death, is that what you imply?

A. Probably it wouldn’t.

. . .

Q, And for the that reason that I suggest; that it is an insufficient certainty from the pathology about the cause of death?

A. Correct.

. . .

Q. But you say, I take it, viewing it in today’s context, the better way to view the pathology is that there are two (2) possible causes, both of them possible; neither of them sufficiently probable to give you a diagnosis of cause of death… is that a fair summation of your professional view today?
A. Yes, it is.

Later, in her testimony, Dr. Whitwell agreed that labeling Kasandra’s death as a homicide would be “a most questionable judgment”. Dr. Whitwell, who had frequently been consulted in post-conviction cases in the United Kingdom by the Criminal Cases Review Commission (and the Crown Prosecution Service and defence counsel) believed it “highly likely” Kasandra’s case would have been referred by the Commission to the Court of Appeal for rehearing if its facts had come before them.

b) Dr. Pollanen’s Testimony:

Dr. Michael Pollanen, the Chief Forensic Pathologist for Ontario, also reviewed the Applicant’s case. In a report prepared for the Inquiry, Dr. Pollanen summarized his concerns regarding Dr. Smith’s testimony and his own views about the cause of Kasandra’s death:

At the preliminary inquiry, Dr. Smith essentially testified that an impact from a lady’s wristwatch was the cause of the fatal head injury. This statement was based on a pseudoscientific wound-weapon matching analysis. This evidence was unreliable and outside the mainstream of forensic pathology.

It is unclear if Kasandra had a fatal head injury at all. Many of the findings that are recorded in the autopsy report are difficult to support upon review of the autopsy photographs. It is clear that there are scalp bruises, but unclear if these injuries are related to death.

There is evidence to suggest that Kasandra may have died from status epilepticus caused by a natural disease and that her death was not related to acute head injury.

A second opinion review of this case is required to determine if this death is unnatural or natural.[emphasis added].

In his testimony at the Inquiry, Dr. Pollanen described Dr. Smith’s use of the wristwatch-wound overlay as “by any interpretation… just not proper”.""

Harold Levy...hlevy15@gmail.com;

MARIA SHEPHERD CASE: PART SEVEN: SELECTED SECTIONS: MS. SHEPHERD'S PLEA;

"Mr. Wiley acknowledged the facts as substantially correct, and a conviction was registered. The Crown further suggested that Dr. Smith had, at some point, added the possibility of a shaking injury to his opinion. The defence made no admission that shaking had ever occurred."

Affidavit of lawyer Alison Craig filed in the Ontario Court of Appeal:

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Many insights into the wrongful conviction of Maria Shepherd - and the role played in it by Dr. Charles Randal Smith - can be gleaned from the affidavit filed in the Ontario Court of Appeal by Lawyer Alison Craig, an associate of Lockyer, Campbell, Posner, who, along with several other lawyers, did a superlative job of representing Ms. Shepherd and other victims of miscarriages of justice at the Goudge Inquiry; Because this affidavit is extremely lengthy I will be publishing selected sections;

Today: The Applicant’s Plea:

"The Applicant’s trial was scheduled to commence on September 28, 1992. On that date, she was arraigned, elected trial by judge alone, and pled not guilty. On October 1, 1992 6, the Applicant appeared before Mr. Justice Langdon of the Ontario Court (General Division), was re-arraigned, and pled guilty to manslaughter. It seems that no facts were read in that day to support the plea.

On October 22, 1992 7, the plea proceedings continued and the facts substantiating the plea were read into the record. Dr. Smith’s findings were paramount in the Crown’s recitation of the cause of Kasandra’s death and were described by her as follows:

Dr. Smith’s examination revealed no evidence if disease, and that apart from Kasandra’s brain, all organs appeared normal. He also observed that there were no external marks of violence to her head. However, once her scalp had been retracted, Dr. Smith observed on the inside of the scalp what he describes as a distinct bruise or hemorrhage in the soft tissue to the right of the mid-line. He describes it as a ring of hemorrhage with a pale central core, almost a square configuration with slightly rounded corners. As well, he observed subdural and subarachnoid hemorrhage, that Kasandra’s brain was significantly swollen. He further observed that there was optic nerve hemorrhage, retinal hemorrhage in both eyes and that both eyes had retinal detachment. This latter was based on opthalmologists who had examined Kasandra while she was still attached to the respirator.

As a result of Dr. Smith’s examination and review of the clinical and medical data, Dr. Smith formed the opinion that… the above described injuries were as a result of non-accidental injury.

Further, during his examination of the brain he observed evidence of what he calls “old hemorrhaging” in various parts of Kasandra’s brain as well as in the optic nerve area. However, Dr. Smith was not able to form an opinion as to whether that previous bleeding, which was evidenced by what he described as traces of iron deposit, which is a by-product of blood, was a result of an accidental or non-accidental injury. Neither was he able to indicate whether or not it was as a result of one cause or separate causes.

However, Dr. Smith was able to give the opinion that the old injury or injuries did not in any way contribute to Kasandra’s death on April the 11 th .

The cause of death in Kasandra was called cranial cerebral trauma. Dr. Smith formed the opinion that the cause of death was as a result of blunt head trauma, and that there was evidence of at least one blow or force of what he described as “substantial or major or significant force”.

The Applicant’s April 24, 1991 statement to police was filed as an exhibit at the proceedings. Her lawyer, Tom Wiley, advised the Court that he was “satisfied [the statement] reflects the conversation at the time of the statement”. The Crown further told the Court:

It was in that statement that… the accused admitted that during the afternoon of April the 9th of 1991, that she had hit Kasandra in the back of the head with her left hand while wearing her wristwatch.

The accused was arrested at that time, and her watch seized. The watch was examined and compared – that is, the watch face – compared to the bruise or hemorrhaging of her scalp, and Dr. Smith formed the opinion that that watch face was consistent with having caused the bruise or the hemorrhage on the inside of the scalp. And, further, in Dr. Smith’s opinion, that the cause of death was occasioned by at least one blow of substantial, major or significant force. That if the arm was swung in a forceful manner, like a tennis ra c quet swing, that is, a backhand manner, that that was a possible explanation for that head injury.

The accused in her statements to the police indicated that on the afternoon of April the 9 th or 1991 that she had been doing laundry while Kasandra and her approximately one-year-old daughter had been playing in the master bedroom, that as she came upstairs she heard a thud on the floor and went in to see her one-year-old crying, and it appeared that she had fallen off of the bed. She told the police that she asked Kasandra why she had let her sister fall off the bed, and Kasandra had said ‘because I did’. She asked again, and Kasandra replied ‘because I did’.

She told the police that by this time the one-year-old was in a frenzy, as she described it, and she was angry. She told the police that she tried to explain to Kasandra, but Kasandra was not listening, that she looked at her with a sideways look, what she described as an ‘I hate you’ look, that she then just sat and watched television.

She then asked Kasandra to get a wet wipe, and Kasandra, she said, looked at her again with an “I hate you” kind of look, and she moved over. She indicated to the police that she, that is the accused, asked Kasandra again to get a wet wipe. At this point the baby, who was about a month old, started crying. Natasha was still in a frenzy, as she describes it, and that she was so angry with Kasandra that she hit her in the back of the head with her left hand. She told police that she was going for her neck area, and that she didn’t think that she had hit her that hard.

She indicated that when she hit her with her – or backhanded her with her left hand, that her watch hit her in the back of the head. And she showed the police the watch at that time. She told the police that she did not think she had hit her that hard, that Kasandra had not fallen, she hadn’t cried. She also indicated to the police that in addition to asking for the wet wipe that she had also asked Kasandra to get the soother for the baby who was crying. It was after that point that she hit Kasandra when she didn’t do that.

Mr. Wiley acknowledged the facts as substantially correct, and a conviction was registered. The Crown further suggested that Dr. Smith had, at some point, added the possibility of a shaking injury to his opinion. The defence made no admission that shaking had ever occurred. A joint recommendation for a sentence of two years less a day in jail was proposed by both parties. Dr. Ruth Bray, the Applicant’s psychologist, provided viva voce evidence related to the availability of institutional programming at Vanier Institution, and testified she felt that the Applicant had a “very low probability” of causing future harm to her children. She put it this way in her report:

There is no evidence to suspect that the children of Ashley and Maria have received any but exemplary care. It is realistic to expect that the disruption caused by Kasandra’s death and subsequent events will dictate on-going supervision and professional support (most likely through the Children’s Aid).

My understanding is that despite the anguish Maria expresses around the death of Kasandra and the difficulties she has had in grasping the full implication of what has occurred, Maria is more than prepared to accept responsibility and to not only follow instructions as to ways in which to ensure the safety of all of the children but also intends to seek specific assistance in such areas as anger control, child management and marital communication.

Mr. Justice Langdon accepted the joint submission. In his Reasons for Sentence, he described Kasandra’s long-standing and puzzling illness, and continued:
She was vomiting constantly, losing weight, not eating, and adding all that to the burden that [Maria Shepherd] bore, one can understand a momentary lapse caused by the sheer frustration of her predicament. I don’t mean to excuse what she did. The blow was plainly excessive, but it also bears mentioning that [she] caused the death of one child out of her frustration arising from the care of another. She came upstairs and found the infant had fallen off the bed and, perhaps, hurt itself. Now, what was unrealistic, of course, was that a three-year-old had been left, I don’t say, “in charge”, but had been left there alone with the infant. But, it was her concern for one child and her accumulated frustration that led to the blow that unfortunately killed the other child.

The Applicant was sentenced to two years less a day in jail, and three years of probation. One of the conditions of her probation was to work with the Children’s Aid Society in the case management of her children. The Warrant of Committal included the following remarks of Mr. Justice Langdon:
1. That the accused serve her sentence at Vanier Institute .
2. That the accused is an appropriate candidate for a minimum security setting .
3. That the accused is likely to make productive use of programs especially

a. Anger Management

b. Life Skills Training

c. Parenting

d. Examination of self and interpersonal relationship;

4. The accused is a good candidate for early parole;

5. The accused is permitted to have open access family visits as soon as possible.

The Applicant gave birth to her fourth child, Chanel, on March 31, 1993, while in custody. On June 21, 1993, she was granted parole. After her release, she sought to regain custody of her children, and was awarded their full custody in 1995. They have been with her ever since. Shortly after her release she began work as a paralegal, and now works as a manager at a retail clothing chain. With the exception of brief separations from Mr. Shepherd in 2005 and 2007, they have remained together since Kasandra’s death, and now live with their daughters Natasha and Chanel at their home in Brampton, Ontario. Jordon and Chelsea now live on their own."

Harold Levy...hlevy15@gmail.com;

MARIA SHEPHERD CASE: PART SIX: SELECTED SECTIONS: MS. SHEPHERD'S AFFIDAVIT AND HER DECISION TO PLEAD GUILTY;

"Dr. Charles Smith was the Crown’s star witness whose reputation preceded him – “everyone was talking about him”. His opinions seemed unassailable, and he had the support of the Suspected Child Abuse and Neglect Unit (SCAN), at least two of whom were to be Crown witnesses."

Affidavit of lawyer Alison Craig: Filed in Ontario Court of Appeal;

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Many insights into the wrongful conviction of Maria Shepherd - and the role played in it by Dr. Charles Randal Smith - can be gleaned from the affidavit filed in the Ontario Court of Appeal by Lawyer Alison Craig, an associate of Lockyer, Campbell, Posner, who, along with several other lawyers, did a superlative job of representing Ms. Shepherd and other victims of miscarriages of justice at the Goudge Inquiry; Because this affidavit is extremely lengthy I will be publishing selected sections;

Today: The Applicant’s Affidavit and Decision to Plead Guilty:

"The Applicant has sworn an affidavit on this Application. In it, she explains the emotional impact on her of losing Kasandra, followed by her arrest for manslaughter. She explains the circumstances that led to her decision to plead guilty, and her perception that Dr. Smith’s evidence amounted to scientific proof that she had caused Kasandra’s death.

When she was released on bail, the Applicant lost custody of her children, and they were placed in the care of her mother. She felt extremely guilty because of the financial and emotional burden she was placing on her mother, who was aging and whose health was deteriorating. In June, 1992, the Applicant learned that she was pregnant with her youngest daughter, Chanel. She was told by Mr. Wiley that the Crown would agree to a sentence of two years less a day if she pled guilty, that she would be able to serve the time at the Vanier Institution, a minimum security setting, and that she could conceivably be granted parole prior to the birth of her daughter. She was further advised that if she pled guilty (thereby showing remorse), the Children’s Aid Society would in due course likely agree that she should regain custody of all her children. She realized that if convicted after trial, she faced a substantial penitentiary sentence and might never regain custody of her children. The decisive evidence of Dr. Smith, coupled with her desire to get her children back, left her feeling she had no realistic alternative but to plead guilty to manslaughter. Thereafter, she decided that she would tell the authorities that, true or not, she had hit Kasandra the one time.

Meetings with Mr. Tom Wiley, defence counsel for the Applicant at her trial:

Mr. Lockyer has met with Mr. Tom Wiley, defence counsel for the Applicant at her trial on two occasions, the more recent meeting being on April 15, 2009. Mr. Wiley has not reviewed the contents of the Applicant’s file (which comes in several boxes) but has provided his best memory of his defence of the Applicant. He advises that his memories may not always be entirely reliable.

Mr. Wiley sought an expert opinion from Dr. Fred Jaffe, a forensic pathologist. Dr. Jaffe only reported verbally to Mr. Wiley, and did not prepare a written report. He did not challenge any of the fundamental features of Dr. Smith’s findings. He went to the Applicant’s home, and viewed the bedroom to see whether he could find an object onto which Kasandra might have fallen that could explain the injury to the inside of her scalp. He was looking for something with which her head may have impacted that was of similar radius and configuration to the injury. He was not successful “one way or the other” in this regard.

Mr. Wiley met regularly with the Applicant. She always maintained that she did not know what had happened to Kasandra. She denied doing anything that could have led to Kasandra’s death – she told Mr. Wiley that she had pushed Kasandra away while she was tending to Natasha, but never struck Kasandra in any way that could have caused her to be injured.

Mr. Wiley was convinced by Dr. Smith’s evidence that Kasandra had been assaulted, but had no basis for suggesting that Kasandra’s father (or natural mother) had anything to do with it. Mr. Wiley retained Dr. Ruth Bray to conduct a psychological assessment of the Applicant. Mr. Wiley believed that the Applicant had not caused Kasandra’s death and was fortified in this belief by Dr. Bray’s opinion that the Applicant had not caused her step-daughter’s death.

Mr. Wiley’s only defence, as he saw it, was one of accident, but he had no expert opinions to support this position. He considered the Applicant to be in a dreadful situation. A complicating factor was that the Applicant was pregnant with her fourth child. He discussed the Crown’s position with Ms. Linda Price, the senior of the two Crowns on the case. She told him that the Crown would seek a three to five year penitentiary sentence if the Applicant was convicted after a trial, and added that she would recommend an appeal if the trial judge were to impose a reformatory sentence. On the other hand, if the Applicant pleaded guilty to the charge of manslaughter, Ms. Price was prepared to agree to a joint submission of a reformatory sentence of two years less a day with a recommendation from the trial judge that the sentence be served at the Vanier Institution in Brampton. Vanier was very near to where the Applicant’s mother and four children were living.

Mr. Justice Langdon of the Superior Court of Justice was assigned to be the trial judge. With the Crown’s consent, Mr. Wiley re-elected trial by a judge without a jury. The Applicant’s trial began on September 28, 1992. A voir dire was commenced to determine the voluntariness of her statements to the police. As the voir dire proceeded, Mr. Wiley urged the Applicant, in out-of-court conversations, to accept the Crown’s plea offer and the joint submission on sentence. There is no doubt today in Mr. Wiley’s mind that the Applicant was persuaded by his opinion and, on October 1, 1992, she accepted his advice and pleaded guilty. The case was adjourned to October 22, 1992 for the facts to be read in, and for her sentencing.

When the plea was entered, it was Mr. Wiley’s understanding that the factual basis for the plea was that the Applicant struck Kasandra a single blow to the back of her head which caused her death. Within days of the plea being entered, Mr. Wiley recalls that he became aware that Dr. Levin, an ophthalmologist at the Hospital for Sick Children, believed that Kasandra’s retinal hemorrhages proved that she had been severely shaken and that this shaking was the actual cause of her death. Dr. Smith had also alluded to likely shaking of Kasandra in his evidence at the preliminary hearing.

Mr. Wiley and the Crown discussed striking the plea. If Kasandra had died as a result of shaking, it struck at the essence of the facts to be read in on the Applicant’s plea. Counsel agreed on a course of action. Mr. Wiley would retain Dr. Lucy Rourke of the Department of Pathology, at the Children’s Hospital in Philadelphia, for an opinion on whether the blow on which Dr. Smith relied was sufficient in itself to have been the cause of death. Mr. Wiley and Detective Barnhart of the Peel Region Police Force travelled to Philadelphia and briefed Dr. Rourke on the case. She reviewed the case for a short time and verbally advised Mr. Wiley that a single blow to the head could have caused Kasandra’s death. Mr. Wiley recalls Detective Barnhart was present at the time that Dr. Rourke gave her opinion (but is aware that Detective Barnhart may disagree). An allusion was made to these events when the facts were read in by the Crown on October 22, 1992. Ms. Price advised the Court:

Ms. Price: Now, that is ... With regard to Dr. Smith, the pathologist – and Your Honour is aware of the events of the last week and a bit with regard to this case – it is Dr. Smith’s position with regard to the suggestion that more had occurred than one blow, that is, the issue of shaking, that ...

The Court: I am assuming the accused shaking the child.

Ms. Price: Yes. As well.

The Court: I see. Very well.

Ms. Price: That shaking may well have been a component, but that is speculative and until there is more research in the area, he is not prepared to say more than that. That it is his position still that, as he first opined, that the cause of death was evidenced by at least one blow of significant force to her head. Because, as Your Honour will remember, defence took issue with that suggestion.

The Court: I’m sorry?

Ms. Price: I’m sorry. Defence took issue.

The Court: I see. Okay.

Ms. Price: Perhaps I shouldn’t say ‘took issue’ with that suggestion, but that became an issue in any event. It became a potential issue. That is the position of the pathologist in this particular case who examined the body.

Mr. Wiley himself referred to the trip to Philadelphia in his submissions on sentence:

When my friend mentioned other - an issue that the defence had taken with respect to this matter of shaking that had been raised, it was an issue which came up not only as an issue of some aggravation but also a potential issue with regard to the cause, and an interesting issue, medically speaking, but I think to her credit, having had counsel look at the issue with very experienced people in Philadelphia, coming back and discussing that with my client, she really wasn’t interested in interesting issues, she was interested in assuming responsibility, which she has done for what occurred on the 9th of ‘91, and after long reflection is content that the first opinion which was offered by Dr. Smith as early as August of 1991 at the preliminary hearing, which I think I read to Your Honour on another occasion when we were here discussing the matter of release of these exhibits.

He certainly says at page 73 of the preliminary hearing, “If there was one blow, then certainly one blow can explain everything,” and that is certainly consistent with what my friend has read in to you with regard to the facts, and that is the position on which this plea of guilty is tendered. 5

Mr. Wiley summarized the motivations for the Applicant’s plea for Mr. Lockyer as follows:

a) Dr. Charles Smith was the Crown’s star witness whose reputation preceded him – “everyone was talking about him”. His opinions seemed unassailable, and he had the support of the Suspected Child Abuse and Neglect Unit (SCAN), at least two of whom were to be Crown witnesses. Dr. Jaffe, whom Mr. Wiley consulted, never challenged the watch impression theory. Mr. Wiley and the Crown both found this theory particularly compelling as the Applicant’s watch did match the shape of the injury under Kasandra’s scalp. Mr. Wiley saw his only defence as one of accident but he had no expert evidence to support this, nor any testimony from the Applicant that she had ever seen Kasandra fall so that her injury could have resulted from a fall in the home. Dr. Smith had also graphically described in his testimony the type of fall needed to cause such an injury. Most problematic was that, despite Dr. Jaffe’s best efforts, he could not produce an object from the bedroom on which Kasandra may have fallen to match the donut-shaped bruise. As a consequence, Mr. Wiley feared that the Applicant was doomed to be convicted after a trial.

b) The Applicant’s personal situation was dire. Her three children were in the custody of her mother. She likely faced a penitentiary sentence after a trial. This would result in her being imprisoned in the Kingston Penitentiary for Women far from her children. She might never be allowed to have custody of her children again. As well, when the trial began, the Applicant was three months pregnant, and was very apprehensive as to whether she would be allowed to keep the baby. In all these circumstances, a reformatory sentence in the Vanier Institution was a proposition that gave the Applicant some hope for the future. Children’s Aid officials suggested that her children would likely be allowed to return to her if she accepted responsibility for Kasandra’s death and served her sentence locally. Dr. Bray saw the plea as a good option for the Applicant in her overall circumstances. Finally, it was important, if possible, that the Applicant, who had been on anti-depressants since 1991, avoid the tremendous stress of a lengthy trial to determine whether she was responsible for Kasandra’s death.

c) Mr. Wiley has always stressed that the Applicant never told him that she did anything to cause Kasandra’s death."

Harold Levy...hlevy15@gmail.com;

MARIA SHEPHERD CASE: PART FIVE; SELECTED SECTIONS FROM LAWYER ALISON CRAIG'S AFFIDAVIT FILED IN ONTARIO COURT OF APPEAL: THE AUTOPSY;

"Following the autopsy, Dr. Smith had instructed the police to search for an object that may have caused the “donut-shaped” injury to Kasandra’s head. On April 24, 1991, the police seized the Applicant’s wristwatch and Dr. Smith had photographs taken of it. He created overlays of the watch and photographs taken of the wound at autopsy. On May 1, 1991, handwritten police notes (whose author is unknown) reflect the following: 12:00 with Charles Smith; stated that the watch measurements [aligned] with the marks on the victims head. No question. Totally reasonable that a backhand blow could cause this injury Had photos of watch taken to have head and watch superimposed on each other . Dr. Smith certified the cause of death as follows:I hereby certify that I have examined this body, have opened and examined the above noted cavities and organs as indicated, and that in my opinion the cause of death was: Cranio-cerebral trauma."

From affidavit of Lawyer Alison Craig filed on behalf of her client Maria Shepherd in the Ontario Court of Appeal;

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Many insights into the wrongful conviction of Maria Shepherd - and the role played in it by Dr. Charles Randal Smith - can be gleaned from the affidavit filed in the Ontario Court of Appeal by Lawyer Alison Craig, an associate of Lockyer, Campbell, Posner, who, along with several other lawyers, did a superlative job of representing Ms. Shepherd and other victims of miscarriages of justice at the Goudge Inquiry; Because this affidavit is extremely lengthy I will be publishing selected sections, starting today with "the autopsy";

"27. At 1:00 p.m. on April 12, 1992, Dr. Charles Smith commenced the post-mortem on Kasandra’s body. He found her to be adequately nourished. He noted four small abrasions to her lumbosacral region, which he testified were “consistent with normal childhood activity so I ascribed no significance to them in terms of child abuse," this section begins;

"28. Of considerable significance to Dr. Smith was a “donut-shaped” contusion on the underside of the scalp, which he described in his Report of Post Mortem Examination as follows:
In the right occipital scalp was a super-elliptical-shaped area of hemorrhage in the configuration of a donut, with a pale central core which was 1.7/1.8 cm in diameter. The outer, dark red contusion was 3 cm in diameter. The soft tissues of the right temporal scalp had a yellowish tinge," the section continues;

"A diagram of the scalp contusion was also included in the report. There were no cuts or bruises on the outside of Kasandra’s scalp associated with this contusion. Dr. Smith in testimony attributed their absence to the cushioning effect of Kasandra’s hair.

29. This observation, and what took place as a result of it, became key findings in the case and play a significant role in the proposed appeal. Following the autopsy, Dr. Smith had instructed the police to search for an object that may have caused the “donut-shaped” injury to Kasandra’s head. On April 24, 1991, the police seized the Applicant’s wristwatch and Dr. Smith had photographs taken of it. He created overlays of the watch and photographs taken of the wound at autopsy. On May 1, 1991, handwritten police notes (whose author is unknown) reflect the following:

12:00 with Charles Smith

stated that the watch measurements [aligned] with the marks on the victims head. No question.

Totally reasonable that a backhand blow could cause this injury

Had photos of watch taken to have head and watch superimposed on each other .


30. Dr. Smith certified the cause of death as follows:

I hereby certify that I have examined this body, have opened and examined the above noted cavities and organs as indicated, and that in my opinion the cause of death was:

Cranio-cerebral trauma.


31. In addition to his Report of Post Mortem Examination, Dr. Smith also prepared a Final Autopsy Report for the Hospital for Sick Children. It included a description of the scalp injury and haematoma which Dr. Smith regarded as the “trauma” responsible for Kasandra’s death:
The postmortem examination demonstrated evidence of cranio-cerebral trauma, with a recent scalp haematoma forming a ring shape, 3 cm in diameter, in the right occipital region. This was spatially related to a subdural haematoma in the right occipital region. As well, a small haematoma was seen in the left frontal region, on the floor of the anterior cranial fossa; this may represent a contra-coup injury. There was a yellow staining in the soft tissues of the right temporal region as well as in the subdural space over the cerebral convexities. The brain was swollen but atrophic.

32. Members of the SCAN (Suspected Child Abuse and Neglect) Unit were involved in the case. One of them, Dr. Marcellina Mian, was recorded as telling the police:
In relation to the bruises noted on the 11th of February 1991, [Dr. Mian] felt that the bruise locations were unusual. She further stated that she would put child abuse at the top of her list given the physical exam, the social history and the blood tests. Doctor Mian went on to say that all she deals with is child abuse so naturally she would assume abuse...

Doctor Mian further stated that as far as she was concerned, the doctors and the child care people may as well have held Kasandra down while her step-mother beat her to death. It was further stated that the doctors and the CAS dropped the ball on this one and that the hospital wanted an Inquest because of that.

33. Dr. Smith advised the police that he could pinpoint the time of Kasandra’s head injury to within three to five hours of the police arrival at the home. Detective Barnhart attended the autopsy and took notes of Dr. Smith’s observations. They included the following entry:
– narrowed time frame down to Tues 9th April in afternoon - most likely 3-5 hours before she was taken to hospital

The notes of P.C. Keys contain an identical entry. This caused Detective Stephenson, the polygraph operator, to tell the Applicant when she took a polygraph test on April 24, 1991, that the “medical evidence” established that Kasandra had been hit on the back of the head with an object on “April the 9th between 4:00 to 9:00 p.m.” The police Synopsis of the Case in the Crown Brief included the following:
[The post mortem examination] showed that the victim died as a result of a blow to the head caused by the accused. This blow caused a chronic-cerebral trauma which in turn, caused death.
. . .

The death blow was determined to have taken place three to five (3 - 5) hours prior to police arrival on the 9th of April, 1991, that being 3 - 5 hours before 9:00 p.m. Further that a flat cylindrical object was used.

If such was the case, the timing fitted perfectly with when the Applicant was alone in the home with the three children, including Kasandra.

34. However, Dr. Smith did not maintain such a three to five hour window in his testimony at the preliminary hearing. When asked if he could time the injury back from her death in the afternoon of April 11, he simply said:

So we would be ante-dating back from that, perhaps, you know, perhaps 24 hours, perhaps 48 hours, maybe 72 hours, somewhere - - somewhere in that time frame.

At the Goudge Inquiry, Dr. Whitwell was asked to explain the extent to which the findings in Kasandra’s case would allow a pathologist to accurately pinpoint the time frame in which the “impact injury” occurred. She responded:

One can't. All - all one can say is that on the appearances, the impact to the back of the head appeared recent, which in pathological terms is anytime up to twenty-four/forty-eight (24/48) hours. .. you couldn't pin it down to three (3) to five (5) hours."

Harold Levy...hlevy15@gmail.com;

MARIA SHEPHERD CASE: PART 4; COURT OF APPEAL ALLOWED HER TO APPEAL ALMOST 20 YEARS AFTER SHE PLEADED GUILTY TO MANSLAUGHTER: HER AFFIDAVIT;

"I STILL DO NOT KNOW WHAT CAUSED KASANDRA’S DEATH. I KNOW THAT HER DEATH MAY HAVE RESULTED FROM EVENTS BEFORE APRIL 9, 1991, INCLUDING THE POSSIBILITY OF EPILEPTIC SEIZURES, OR AN EARLIER INJURY TO HER BRAIN THAT NO ONE KNEW ABOUT. NEITHER OF THESE POSSIBILITIES HAD BEEN RAISED WITH ME BY MR. WILEY, OR ANYONE ELSE, AS FEASIBLE BEFORE I PLED GUILTY. I NOW KNOW THAT THERE IS NO SCIENTIFIC EVIDENCE THAT I INJURED KASANDRA WHEN I PUSHED HER OR THAT MY WRISTWATCH LEFT A BRUISE ON THE UNDERSIDE OF HER SCALP. DR. SMITH’S TESTIMONY IN THESE REGARDS HAD A HUGE EFFECT ON THE LAWYERS REPRESENTING ME AND WAS A CRITICAL FACTOR IN MY DECISION TO PLEAD GUILTY TO MANSLAUGHTER. I HOPE THAT I CAN NOW PROVE THAT I DID NOT ASSAULT OR ABUSE KASANDRA AND DID NOT CAUSE HER DEATH. I WOULD NEVER HAVE PLED GUILTY IF I KNEW THEN WHAT I KNOW NOW ABOUT DR. SMITH AND KASANDRA’S DEATH."

AFFIDAVIT OF MARIA SHEPHERD: ONTARIO COURT OF APPEAL;

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Maria Shepherd's affidavit is a moving, if not disturbing, document that was filed recently in the Ontario Court of Appeal.

It reads as follows:


I, MARIA SHEPHERD...hereby make oath and say as follows:

1. On October 22, 1992, I was convicted of manslaughter in the death of my step-daughter, Kasandra, who died when she was three years old. I was sentenced to two years less a day in prison. This affidavit describes the events leading up to Kasandra’s death, and why I eventually decided to plead guilty. I do not believe I caused Kasandra’s death, and have spent more than fifteen years mourning her loss and coming to terms with my decision to plead guilty to something that I always believed I did not do.

2. I was born on August 20, 1969 in Manila, Philippines. I am now 39 years old. I became a Canadian citizen in 1975 at the age of 6. My father, Ramon Crespo, and my mother, Marie, are now 75 years of age. They have been married for 55 years. My father was a precious metals consultant, and my mother worked for the Canadian Imperial Bank of Commerce and Sears Canada. I have a grade 9 education, having left school at age 14.

3. I lived with my parents until I became pregnant with my eldest son, Jordan. At first I lived with friends, and then found my own apartment in Rexdale. Jordan was born on July 23, 1986, when I was 16 years of age. In 1987, Jordan and I moved back home with my parents due to my financial circumstances.

4. I now live...with my husband Ashley and two of our children, Natasha (19) and Chanel (16). My two other children, Jordan (22) and Chelsea (18), live on their own. I work as a store manager for Y.M. Inc, a Canadian clothing retailer. My husband is a self-employed process server.

Kasandra’s Life Before April 9, 1991:

5. Kasandra’s natural parents, Amanda Hislop and Ashley Shepherd, both of whom I knew well, were in a common-law relationship. Kasandra was born on December 15, 1987. I was at the hospital for her birth. She would be 21 today if she were still alive.

6. Ashley and Amanda separated in June, 1988. Sometime after that he and I began to date. In November, 1988, I moved into Ashley’s home. We were married on August 5, 1989. Kasandra was still with her mother, and Ashley had access rights. In 1989, Ashley decided to seek full custody of Kasandra. We retained a lawyer, began the legal process, and in November, 1989, we were granted interim custody. Her mother was given substantial access rights. By that time, my financial situation had improved and my son Jordan was living with us as well.

7. I still remember being surprised at how smart Kasandra was for her age. We enrolled her at the Tiny Tim Developmental School with Jordan. I quickly grew to love Kasandra as my own daughter, and she bonded really well with Jordan. Kasandra’s mother continued to have regular access to Kasandra. She made several reports to the Children’s Aid Society and the police alleging that Kasandra was being abused by Ashley and myself. Her complaints were not sustained by Children’s Aid or the police. We also made complaints about the way she and her new partner treated Kasandra. These complaints were also considered to be unfounded by the authorities. I was very protective of Kasandra. I cooperated with the authorities when they made inquiries about Kasandra and I made sure she was regularly seen by our family physician, Dr. Chiang.

8. On February 14, 1990, my daughter Natasha was born. My parents then purchased a new home in Brampton. In January, 1991, Ashley, Jordan, Kasandra, Natasha and I moved into their new home. We had to withdraw Kasandra from Tiny Tim for financial reasons. On February 27, 1991, I gave birth to my own third child, a second daughter, Chelsea.

9. In January, 1991, Kasandra started to get sick. It began with symptoms of the stomach flu. She lost weight, as much as 12 pounds. I took her to see Dr. Chiang who thought she might have a blood disorder. I took her for blood tests. That same evening (February 11, 1991), when she did not get better, Dr. Chiang, our family doctor, suggested that I take her to the hospital. I accepted his advice and took her to Peel Memorial Hospital. She was put on intravenous drip and remained hospitalized there for four weeks. The police came to the hospital to inquire about Kasandra’s condition and I spoke to them. Doctors could not diagnose her illness. Initially they diagnosed her as having gastroenteritis and dehydration. The doctors felt that her frequent vomiting might be due to psychological stress arising from her parents’ separation and the custody dispute. Her condition improved somewhat.

10. The CAS visited our house prior to Kasandra’s release from hospital and concluded that she should return home to live with me and Ashley. On March 6, 1991, the doctors, nurses and social workers at the hospital held a case conference about Kasandra’s condition. They decided to allow her to return home and her progress was to be monitored at home by a nurse and a worker from the Children’s Aid Society. On March 8, 1991, Kasandra was discharged from the hospital and we brought her home.

11. After her release from hospital, Kasandra seemed to be getting better. Her mother continued to have regular access. Then, after two weeks, Kasandra started vomiting again. It got to the point that she was vomiting after almost every meal. Ashley and I were extremely concerned and could not understand how so many tests during her one month hospitalization at Peel Memorial Hospital had failed to result in a diagnosis. Dr. Chiang thought her vomiting was caused by “emotional bruising”. We also noticed that Kasandra would often lose her balance, and trip and fall. It was heartbreaking to see her constant suffering. Meanwhile, the Children’s Aid were continuing to monitor her progress.

The Events of April 9, 1991:

12. On April 9, 1991, the day started off uneventfully. Ashley left for work around 8:30 a.m., leaving me at home with Kasandra, Chelsea and Natasha and my older brother, Rene. Jordan was staying with his biological father for a few days. I remember Kasandra took a long time to eat her breakfast, but seemed alright after that, and she played with Natasha for much of the morning. Ashley came home for lunch, but did not stay long. Rene came and went throughout the day. I spoke with Dr. Chiang by phone about Kasandra in the afternoon, and he suggested that we send her to live with her mother for a while to see if her symptoms would get any better. This made sense to me. I called Amanda, and we made arrangements for Kasandra to move to her house the following weekend.

13. I had plans to go out and see my mother that evening, so I began to get ready in my bedroom. Kasandra was with me. She suddenly became sick and vomited on the carpet. Her shoulders were twitching and her eyes were rolled back in her head. She vomited again. She said she was tired and wanted to lie down, so I let her sleep on my bed. My brother and his friends came over to visit. When Kasandra woke up she seemed better, so I gave her a shower and dressed her.

14. At one point in the afternoon, I heard a thump upstairs. I went up and found Natasha lying on the floor. Kasandra was there, and I was annoyed at her for letting Natasha fall off the bed. Then Chelsea started crying. I asked Kasandra to help me. She refused to move, so I pushed her out of the way using a back hand type motion with my left hand. Kasandra neither fell nor cried, and my gesture left no mark on her. It was ordinary parental discipline of a disobedient child at a difficult moment. To me, it never constituted “an assault” or “abuse” of Kasandra.

15. Ashley came home at about 5:45 p.m. He wanted to take the children for haircuts, but I did not want them to go out because it was raining. We argued and fought over the car keys. I telephoned my mother and, while on the phone, heard Kasandra vomiting upstairs. I went upstairs and found Ashley with her in the upstairs washroom. He cleaned her up, and we called Dr. Chiang. Kasandra seemed sicker than ever. Dr. Chiang told us to bring her in to see him the next day.

16. What happened next was terrifying. Kasandra was lying on the living room couch. Ashley was standing beside her. She did not respond when he spoke to her. He shook her a few times. She went stiff, with her fists clenched. She was making squealing and wheezing sounds that I had never heard before. She started shaking, her eyes rolled back in her head, and we could not find a pulse. I grabbed ice and cold water to put on her face thinking it would help, but it did not. Ashley called 911 while I held her and we started doing CPR. By this time it was almost 9:00 p.m. Kasandra was semi-conscious, when the ambulance attendants arrived and took her to the hospital.

17. Kasandra was first taken to the Peel Memorial Hospital. She continued to have seizures. She was transferred to the Hospital for Sick Children in the early morning hours of April 10. The doctors told us that she had severe brain swelling, and that her condition was unlikely to improve. She was removed from life support and died on April 11, 1991 at 3:50 p.m.

The Investigation and Prosecution:

18. When I was first interviewed by police on April 16, 1991, I told them as much as I could remember about what happened that day. I was traumatized and in a state of shock, but was as cooperative as I could be. The police were not believing my account of the events leading up to Kasandra’s death. They asked me to take a lie detector test and I agreed, because I had nothing to hide.

19. On April 24, 1991, I went to the police station to take the polygraph. Detective Stephenson then told me I had failed and was lying. He told me what Dr. Smith had told them. He said that Dr. Smith had told them that the injury that killed Kasandra had occurred between three and five hours before her seizures started, that it was not an accident, and that I was the person who must have caused her injury. It was obvious that I was being accused of causing her death. I tried to think of what I might have done, and then remembered I had pushed her with the back of my hand that afternoon when I was trying to look after Chelsea and Natasha. I told Detective Stephenson of this. They told me I had left a mark on Kasandra’s scalp from the imprint of my watch. I was arrested and charged with manslaughter.

20. I was released the next day on a surety bail in the amount of $20,000.00. My son and two daughters were now in my mother’s custody. My conditions prohibited contact with my children unless in the presence of my mother. My children were my life, and my separation from them was overwhelming for me. My family and friends supported me, but neighbours used to stop and stare at my house. I became isolated and depressed. Only the support of my family and friends kept me going.

21. I could not accept that I had caused Kasandra’s death because I knew what had happened in the bedroom. When I told other people what had happened, including Liisa Dickinson of CAS, who testified at my preliminary hearing, I described it in the same way – as a push that neither caused Kasandra to fall down nor cry. However, my lawyer, Robert Callaghan, who conducted my preliminary hearing, told me that there was no basis on which to challenge Dr. Smith’s testimony. He told me that Dr. Smith was a force to be reckoned with. I think his words were “he is the best of the best”. I remember the first day of the preliminary hearing when Dr. Smith walked into court – it was like a superhero entered the room. Everyone stopped what they were doing and stared at him.

22. Tom Wiley, who was my lawyer at trial, talked to me about the case in the same way as Mr. Callaghan. He told me that Dr. Smith’s findings established that Kasandra had received a major blow on the back of her head that left a mark in the shape of my watch, and caused the brain swelling which led to her death. This did not fit what I knew had happened on April 9, 1991 but it seemed to be proven as a scientific fact. He also told me that Dr. Smith was suggesting that I had violently shaken Kasandra. In time, I felt compelled to accept it and ‘admit’ it.

23. My family was supportive of me throughout the court proceedings. They went through a lot, and throughout the process took care of Jordan, Natasha, and Chelsea. Although I felt I had not done anything wrong, I felt extremely guilty. I realized that if I went through with a trial, my family would probably have to testify. I also knew that if I was convicted after trial, I would face a prison sentence that was much longer than if I pled guilty, likely by years. I could not bear the thought of being separated from my children for that long, or of asking my parents to take care of them for so many years. My mother was starting to get sick from the stress, and was diagnosed with heart problems. I believed that my circumstances were the cause of her illness.

24. In the summer, 1992, I realized I was pregnant with my third daughter Chanel. This increased my anxiety and stress. I thought I might have to give birth in prison. I knew Chanel would be apprehended by the Children’s Aid Society at birth. My lawyer Mr. Wiley told me that if I pled guilty to manslaughter, the Children’s Aid Society had agreed to let me have my children back in due course, because I would be showing remorse for my actions.

25. During this time I was seeing Dr. Bray, a psychologist. She diagnosed me as suffering from depression (I have been on anti-depressants for many years). Shortly before my trial commenced, she spoke to Mr. Wiley and expressed concern about my emotional health. On September 28, 1992, my trial began. I pleaded not guilty. I knew Mr. Wiley had been having discussions with the Crown about a joint submission on sentence if I pleaded guilty. He told me that I would be given a sentence of two years less a day in a reformatory if I pled guilty, and would be able to serve the time in the Vanier prison which was near my parents’ home. It was even possible that I could be on parole in time to give birth to my daughter Chanel. Mr. Wiley kept telling me that he had no evidence to challenge what Dr. Smith said about Kasandra’s death, and I was fighting a losing battle. On October 1, 1992, I pled guilty to manslaughter before Mr. Justice Langdon in the Superior Court of Justice in Brampton, and admitted through Mr. Wiley that I had hit Kasandra and caused her death.

26. On October 22, 1992, I was sentenced to two years less a day in prison, followed by three years of probation. On March 31, 1993, Chanel was born. While in prison, I understood that I should continue to ‘admit’ having hit Kasandra if I wanted early parole so I did so. My children needed me and I needed them. I was granted parole on June 21, 1993. In 1995, I regained custody of my four children. I felt as if I had abandoned them, and felt terrible for having placed the burden of their care on my parents for so long. I have kept my children ever since.

Recent Information About the Evidence in My Case:

27. In 2007, I was contacted by James Lockyer from the Association in Defence of the Wrongly Convicted (AIDWYC), who told me about the ongoing review of Dr. Smith’s cases, and said that my case was one of the ones that had been examined. I had seen questions raised about Dr. Smith in the media. I met with Mr. Lockyer at Mr. Wiley’s office shortly after he contacted me in April, 2007, as well as with Mr. Justice Goudge in June, 2007, before the Inquiry began. Even though it brought back traumatic memories and reopened old wounds for both me and my family, I was eager to accept AIDWYC’s offer of assistance to review my conviction.

28. I followed the Inquiry into Pediatric Forensic Pathology in Ontario closely, and attended on several occasions to listen to the testimony. I have read Dr. Whitwell’s report that was prepared for the Inquiry, and I watched her testimony on the internet. I went to the Inquiry and watched much of Dr. Smith’s testimony. I also attended Mr. Justice Goudge’s press conference on October 1, 2008 when he released his final report, and I have started reading it.

29. I still do not know what caused Kasandra’s death. I know that her death may have resulted from events before April 9, 1991, including the possibility of epileptic seizures, or an earlier injury to her brain that no one knew about. Neither of these possibilities had been raised with me by Mr. Wiley, or anyone else, as feasible before I pled guilty. I now know that there is no scientific evidence that I injured Kasandra when I pushed her or that my wristwatch left a bruise on the underside of her scalp. Dr. Smith’s testimony in these regards had a huge effect on the lawyers representing me and was a critical factor in my decision to plead guilty to manslaughter. I hope that I can now prove that I did not assault or abuse Kasandra and did not cause her death. I would never have pled guilty if I knew then what I know now about Dr. Smith and Kasandra’s death.


30. I believe it would be in the interests of justice to allow me to appeal my manslaughter conviction. I did not cause Kasandra’s death, and the fact that I have been convicted of doing so has haunted me ever since. I ask the Court to give me an opportunity to appeal my conviction....

Harold Levy...hlevy15@gmail.com;

MARIA SHEPHERD CASE; PART 3; GLOBE AND MAIL JUSTICE REPORTER KIRK MAKIN REPORTS;

"MS. SHEPHERD SAID IN AN AFFIDAVIT THAT HER LAWYER WARNED HER AGAINST TRYING TO PLEAD NOT GUILTY. "HE TOLD ME THAT DR. SMITH WAS A FORCE TO BE RECKONED WITH," IT SAID. "I REMEMBER THE FIRST DAY OF THE PRELIMINARY HEARING, WHEN DR. SMITH WALKED INTO COURT. IT WAS LIKE A SUPERHERO HAD ENTERED THE ROOM.""

JUSTICE REPORTER KIRK MAKIN; GLOBE AND MAIL;

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"Seventeen years after she pleaded guilty to killing her three-year-old stepdaughter, a Toronto woman was permitted yesterday to reopen her case and seek exoneration," Justice Reporter Kirk Makin reports under the heading "17-year-old manslaughter case to be reopened;"

"Moments after Ontario Court of Appeal Judge Marc Rosenberg granted Maria Shepherd's request, the mother of four wept in a courthouse hallway and said that going through life as a reviled child killer "has been extremely difficult. It has not been a journey that I would wish on anyone at all," the story, published earlier today" continues;

""There were many circumstances surrounding my plea - first and foremost, the loss of my children," she said.

"Being separated from the children was probably the worst thing I could imagine at the time."

Crown counsel Jennifer Woollcombe consented to reopening the case yesterday.

Ms. Shepherd, a 39-year-old Filipina immigrant, spent two years less a day in jail after pleading guilty to manslaughter in the 1991 death of her stepdaughter, Kasandra.

Ms. Shepherd acknowledged that she struck the child in a moment of frustration, but claimed it was a minor blow that she could not have imagined would have led to the child having seizures and dying.

The Shepherd case is one of a dozen cases to come up for judicial review following the discrediting of Charles Smith, a top forensic pathologist who supplied key evidence against the defendants.

Ms. Shepherd said in an affidavit that her lawyer warned her against trying to plead not guilty. "He told me that Dr. Smith was a force to be reckoned with," it said. "I remember the first day of the preliminary hearing, when Dr. Smith walked into court. It was like a superhero had entered the room."

James Lockyer, a lawyer for the Association in Defence of the Wrongly Convicted, said in an interview that the Shepherd case is inordinately complicated because Ms. Shepherd had many interactions with the medical and children's aid systems prior to Kasandra's death.

Indeed, a lengthy coroner's inquiry held into Kasandra's death resulted in dozens of recommendations on how to prevent similar deaths.

"There are huge quantities of material that make it hard to assimilate," Mr. Lockyer said.

"And Smith's findings are criticized in several regards, not just one. Almost everything he said seems to have been wrong.""

Harold Levy...hlevy15@gmail.com;

MARIA SHEPHERD CASE: PART TWO; TORONTO STAR'S EXPANDED REPORT FOR PRINT EDITION; LEGAL AFFAIRS REPORTER TRACEY TYLER;

"A 1997 INQUEST INTO KASANDRA'S DEATH, WHICH SMITH ALLEGED WAS CAUSED BY A BLOW TO THE HEAD, ENDED WITH 73 RECOMMENDATIONS AIMED AT GETTING SOCIETY TO TAKE CHILD ABUSE MORE SERIOUSLY.

YESTERDAY, ONTARIO'S CHIEF FORENSIC PATHOLOGIST, DR. MICHAEL POLLANEN, SAID IT IS UNCLEAR IF KASANDRA DIED FROM A HEAD INJURY. HE SAID THERE IS EVIDENCE TO SUGGEST SHE DIED OF NATURAL CAUSES, SUCH AS EPILEPSY.


REPORTER TRACEY TYLER: THE TORONTO STAR; PHOTO: RENE JOHNSTON/TORONTO STAR: MARIA SHEPHERD, DAUGHTER CHELSEA AND SON JORDAN (REAR) OUTSIDE ONTARIO COURT OF APPEAL AT OSGOODE HALL MAY 12, 2009;"

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"With a powerful pathologist set to deliver testimony that would link her to her stepdaughter's death, Maria Shepherd faced a stark choice: Plead guilty or risk losing her other children permanently," legal affairs reporter Tracey Tyler's expanded report for the Toronto Star's print edition begins;

"Pregnant with her fourth child, Shepherd settled on the option that promised a shorter sentence, early parole and the prospect of quickly reuniting with her family," the story, published earlier today under the heading, "Woman battles to clear her name" and the by-line, "Wins right to appeal manslaughter conviction in 1991 death handled by disgraced pathologist," continues;

"Under what she describes today as "extreme" pressure, Shepherd pleaded guilty in 1992 to manslaughter in the death of her stepdaughter, Kasandra, 3.

"I needed to do what I had to do to protect myself and my family," said Shepherd. "Being separated from the children is probably the worst thing I could imagine at the time."

Nearly 17 years later, with new evidence exposing pathologist Dr. Charles Smith's work in the case as "complete nonsense," the Ontario Court of Appeal took the unusual step yesterday of allowing Shepherd, 39, to appeal her conviction.

A 1997 inquest into Kasandra's death, which Smith alleged was caused by a blow to the head, ended with 73 recommendations aimed at getting society to take child abuse more seriously.

Yesterday, Ontario's chief forensic pathologist, Dr. Michael Pollanen, said it is unclear if Kasandra died from a head injury. He said there is evidence to suggest she died of natural causes, such as epilepsy.

Shepherd was a young mother with three children in 1991. Kasandra was her husband's daughter from a previous relationship. That January, Kasandra began to lose weight and developed the first of a series of illnesses, which doctors variously attributed to flu, a blood disorder or emotional trauma stemming from her parents' custody battle. She had been vomiting the day she died, April 11, 1991.

That day, Shepherd heard a thump on the floor of an upstairs bedroom and discovered her oldest daughter, Natasha, had fallen out of bed. As she attempted to rescue Natasha, Shepherd said, she pushed Kasandra out of the way with a backhanded sweeping motion.

Smith would later suggest the incident created a doughnut-shaped bruise in tissue deep beneath Kasandra's skull. He asked police to see if they could find an object similar in size and shape to the bruise. They produced Shepherd's wristwatch. Holding the watch over a photograph of the bruise, Smith pronounced it "a very nice fit."

Dr. Helen Whitwell, a forensic pathologist for Britain's Home Office who reviewed the case, said Smith's "overlay" technique was "complete nonsense."

Kasandra's case was one of 20 in which Smith was found to have committed fundamental errors by the Goudge inquiry. But in 1991, after Shepherd had been charged, Smith's opinion was virtually impossible to challenge in court.

His views "had a huge effect on the lawyers representing me and was a critical factor in my decision to plead guilty to manslaughter," Shepherd, a clothing store manager, said in an affidavit.

Pleading guilty allowed her to avoid spending up to five years in a Kingston prison. Instead, she was sentenced to two years less a day in a Brampton reformatory, near her parents' home. As a condition of bail, her children were placed in the custody of Shepherd's mother. It took three years of legal battles to put the family back together.

Shepherd's lawyer James Lockyer said the appeal will likely be heard next year."

Harold Levy...hlevy15@gmail.com;

BREAKING NEWS: MARIA SHEPHERD CASE; PART 1: APPEAL COURT GIVES GREEN LIGHT TO MOTHER CONVICTED ON DR. CHARLES SMITH'S TESTIMONY ALMOST 20 YEARS AGO;

"DR. HELEN, A FORENSIC PATHOLOGIST FOR ENGLAND'S HOME OFFICE, WHO REVIEWED THE CASE FOR ONTARIO'S CORONER, SAID SMITH'S "OVERLAY" TECHNIQUE WAS "COMPLETE NONSENSE."

IT'S A METHOD THAT CAN ONLY BE USED WHEN ONE IS ATTEMPTING TO DETERMINE THE SOURCE OF AN EXTERNAL INJURY — SUCH AS A MARK THAT MIGHT HAVE BEEN LEFT BY THE SOLE OF A SHOE — AND IS MEANINGLESS WHEN IT COMES TO INTERNAL BRUISING.

DR. MICHAEL POLLANEN, ONTARIO'S CHIEF FORENSIC PATHOLOGIST, CALLED SMITH'S WOUND-WEAPON MATCHING ANALYSIS "PSEUDOSCIENTIFIC" AND "OUTSIDE THE MAINSTREAM" OF FORENSIC PATHOLOGY."

REPORTER TRACEY TYLER: THE TORONTO STAR; PHOTO: RENE JOHNSTON/TORONTO STAR: MARIA SHEPHERD, DAUGHTER CHELSEA AND SON JORDAN (REAR) OUTSIDE ONTARIO COURT OF APPEAL AT OSGOODE HALL MAY 12, 2009;

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Yet another mother has been granted leave to appeal a conviction many years ago that rested on the flawed testimony of Dr. Charles Smith;

Some observers have quipped that Ontario's highest court could devote an entire court-room to appeals launched by Dr. Smith's victims;

"Nearly 20 years after she was imprisoned on the basis of "complete nonsense" from a disgraced pathologist, the Ontario Court of Appeal has taken the unusual step of allowing a mother of four from Brampton to appeal her manslaughter conviction," Legal Affairs Reporter Tracey Tyler's story begins, under the heading: "Mother cpnvicted on Charles Smith's testimony appeals;"

""This has not been a journey that I would wish on anyone," Maria Shepherd, 39, said today as she struggled with her emotions outside a courtroom at Osgoode Hall," the story continues.

"Her two eldest children, Jordan, 23, and Natasha, 19, accompanied their mother to court.

In 1992, under what she described today as "extreme" pressure, Shepherd pleaded guilty to manslaughter in connection with the death of her stepdaughter Kasandra, 3.

In an affidavit filed with the court, Shepherd said her own defence lawyer described the Crown's star witness, Dr. Charles Smith, as a force to be reckoned with. If convicted at the end of a trial, she was likely to be sent to a Kingston women's prison for between three and five years.

But if she pleaded guilty, she was likely to receive a sentence of two years less a day in a Brampton reformatory, near her parents' home. Her plea would be taken as a sign of remorse, bettering her chances for parole after a few months and being reunited with her children.

Three of her children had been placed in the custody of her mother and Shepherd, who was pregnant at the time, was worried the fourth would be seized by Children's Aid.

"I needed to do what I had to do to protect myself and my family," said Shephard, who manages a retail clothing store. "Being separated from my children is probably the worst thing I could imagine at the time."

In fact, it took three years of family court battles before they were reunited.

Meanwhile, in 2005, Ontario's chief coroner ordered a review of 45 suspicious autopsies performed by Smith. Kasandra's case was one of 20 in which Smith was found to have made serious and fundamental errors.

Smith said a doughnut-shaped bruise deep in the tissue beneath the child's skull resulted in fatal brain swelling. He asked police to find an object similar in size and shape to the bruise. They came back with Shepherd's wristwatch.

Smith held the watch over a photograph of the bruise and pronounced it "a very nice fit."

Shepherd had admitted to pushing Kasandra out of the way with a sweeping motion as she attempted to rescue another daughter who had fallen out of her bed in April, 1991.

But it amounted to minor physical contact and not the blow described by Smith, the appeal court has been told.

Dr. Helen, a forensic pathologist for England's Home Office, who reviewed the case for Ontario's coroner, said Smith's "overlay" technique was "complete nonsense."

It's a method that can only be used when one is attempting to determine the source of an external injury — such as a mark that might have been left by the sole of a shoe — and is meaningless when it comes to internal bruising.

Dr. Michael Pollanen, Ontario's chief forensic pathologist, called Smith's wound-weapon matching analysis "pseudoscientific" and "outside the mainstream" of forensic pathology.

It is unclear if Kasandra had a fatal head injury at all but there is evidence to suggest she may have died of natural causes such as epilepsy, Pollanen said in a report prepared for the Goudge inquiry into flaws in the province's pediatric forensic pathology system. She had been sick and losing weight in the months preceding her death and had a history of seizures.

Whitwell also said epilepsy should have been explored as a cause of death, adding the bruising could have also been caused by a fall.

Their opinions are expected to be filed as fresh evidence in Shepherd's appeal, which could be heard late this year, but is more likely to be heard in 2010."

Harold Levy...hlevy15@gmail.com;