"THE POLICE, THE CROWN AND THE DEFENCE ALL RELIED UPON DR. SMITH’S EXPERT OPINION AND, GIVEN HIS STATURE AT THE TIME, THE APPELLANT AND HER COUNSEL DID NOT BELIEVE THAT THEY COULD SUCCESSFULLY CONTEST HIS OPINION. AS CROWN COUNSEL SAYS IN HIS FACTUM, THE FRESH EXPERT OPINION NOW CONCLUSIVELY REFUTES CRITICAL ASPECTS OF DR. SMITH’S OPINION. HIS OPINION WAS A CENTRAL UNDERPINNING OF THE CROWN’S CASE AT TRIAL AND WITHOUT THAT EVIDENCE THERE WAS NO REASONABLE PROSPECT OF CONVICTION."
ONTARIO COURT OF APPEAL: DECEMBER 7, 2009. SHERRY SHERRET'S APPEAL;
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"SHERRET HAD BEEN COMPLETELY FLOORED BY DR. SMITH’S TESTIMONY. THE NOTION OF HER SMOTHERING HER OWN SON MADE HER SHUDDER EVERY TIME SHE THOUGHT ABOUT IT. SHE HAD NO IDEA HOW JOSHUA COULD HAVE A SKULL FRACTURE OR NECK INJURIES. SHERRET HAD MADE IT CLEAR TO HILLYER THAT SHE WOULD NEVER, UNDER ANY CIRCUMSTANCES, ADMIT TO CAUSING JOSHUA’S DEATH.
AFTER DISCUSSIONS WITH SHERRET, HER FATHER AND ROBINSON, HILLYER TOLD WALSH THAT SHERRET WOULD PLEAD NOT GUILTY TO THE LESSER CHARGE OF INFANTICIDE (OFTEN USED IN CASES WHERE MOTHERS KILL THEIR CHILDREN AS A RESULT OF SEVERE POST-PARTUM DEPRESSION) BUT WOULD NOT CONTEST THE VARIOUS FACTS THAT IMPLICATED HER IN THE CRIME.
IN OTHER WORDS, SHERRET WOULD BE FOUND GUILTY WHILE MAINTAINING HER INNOCENCE. DESPITE SHERRET’S VEHEMENT DENIALS, HER LAWYER THOUGHT THE CROWN HAD A DECENT CHANCE OF SECURING A MURDER CONVICTION, PRIMARILY THROUGH DR. SMITH’S TESTIMONY."
DEREK FINKEL: CHATELAINE;
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BACKGROUND: An overview of Joshua's case prepared by Commission staff indicates that:
Joshua was born in Belleville, Ontario on September 23, 1995 to Sherry Lee-Ann Sherret and Peter. Joshua had an older half-brother born on July 4, 1994 to Sherry and another partner. Sherry, Peter, Joshua and Joshua's bother all resided together in Trenton, Ontario. Joshua died on January 23, 1996, at the age of four months in Trenton,Ontario.
At the time of Joshua's death Sherry was 20 years old. On March 27, 1996, sherry was charged with first-degree murder in Joshua's death. After a preliminary inquiry she was committed to stand trial on that charge. However, that committal was subsequently quashed and she was ordered to stand trial on a charge of second-degree murder instead.
On January 4, 1999, a new indictment charging infanticide was placed before the Ontario Court of Justice (General Division). Sherry entered a plea of not guilty. However, the Crown then read into the record certain agreed facts. The defence called no evidence in response to the facts read in and did not dispute them. As a result sherry was convicted of infanticide. On June 2, 1999, she was sentenced to a one-year custodial term followed by two years of probation. Just prior to the laying of the criminal charge, on March 7, 1996, Joshua's brother was apprehended by the Northumberland Children's Aid Society and placed in foster care. He was ultimately adopted by his foster family. In September, 2005, Sherry had another child, a daughter. The Children's Aid Society obtained a Supervision Order in October, 2006, in relation to this child. On April 11, 2007, that order was terminated. The conviction was quashed and she was acquitted by the Ontario Court of Appeal on December 7, 2009.
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PUBLISHER'S NOTE: The Ontario Court of Appeal quashed Sherry Sherret's infanticide conviction and directed an acquittal on December 7, 2009. The acquittal, directed by justices Rosenberg, Rouleau and Watt, is a result of the intense support of the Association in Defence of the Wrongly Convicted - a volunteer organization - and lawyers James Lockyer, Andras Schreck and Zachary Kerbel, who assisted her. I am following the Court's endorsemnt with a moving piece written by Derek Finkel which was published by Chatelaine.
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"In view of the Crown’s position that the fresh evidence should be admitted, the appeal allowed and an acquittal entered, we intend to provide only brief reasons," the Court of Appeal endorsement begins.
"This appeal originates in the reinvestigation of cases in which Dr. Charles Smith had provided opinions and evidence as to the cause of death of children," the endorsement continues.
"In 1996, the appellant was charged with the first degree murder of her four month-old-son, Joshua. At the same time, child protection officials took custody of her older son. In 1999, she reached an agreement with the Crown that led to her conviction for infanticide. Mr. Justice Byers sentenced the appellant to one year imprisonment. She has long ago served that sentence. Just prior to the sentencing, the appellant agreed to the adoption of her other son by the foster parents with whom the child had been living.
Dr. Smith performed the autopsy on Joshua and testified at the appellant’s preliminary inquiry. He testified that Joshua died from asphyxia, probably as a result of suffocation or smothering by a third party. Significantly, he also testified about other injuries to the infant that supported a finding of intentional killing, namely, haemorrhages in the neck tissues, a skull fracture and a healing fracture of the left ankle. Based on this evidence, the appellant was committed for trial on the charge of first degree murder, later reduced to second degree murder as a result of a certiorari application
Just prior to trial, Crown counsel, not Mr. Shandler, agreed to withdraw the murder charge and lay a charge of infanticide. In return, although she pleaded not guilty to the infanticide charge, the appellant agreed not to contest a set of facts that included an allegation that she smothered her child. The facts also set out a summary of the evidence that Dr. Smith gave at the preliminary inquiry, including reference to the skull fracture and the fracture to the child’s ankle.
The appellant has always maintained that she did not harm her child.
In 2005, the Chief Coroner began a review of 45 cases in which Dr. Smith had provided an opinion or testified. One of the cases to be reviewed was Joshua’s case. As is well known, this review eventually led to the Inquiry into Pediatric Forensic Pathology in Ontario conducted by Justice Goudge of this court. The findings by eminent pathologists and other experts demonstrated serious errors by Dr. Smith in many cases. In Joshua’s case, the findings demonstrate that Dr. Smith’s opinion was wrong in several important respects. The skull fracture was, in fact, a normal developing cranial suture. The haemorrhages to the neck were, in fact, dissection-related artefacts from the autopsy itself. As for the injury to the left ankle, the experts could say only that it could have been caused deliberately or accidentally. The experts also state that other findings relied upon by Dr. Smith , the petechial haemorrhages and congestion of the lungs, are common findings in infant deaths and not diagnostic of an intentional act. Dr. Smith also found swelling of the brain. The new expert evidence shows that there was no evidence of swelling of the brain.
As to the cause of death, the experts could find no positive evidence to support a finding of suffocation or smothering by a third party. At the time of his death, the child was not sleeping in a regular crib, but rather in a playpen that contained blankets and quilts. The autopsy findings and the findings at the scene suggest that death probably occurred by an accidental asphyxial means in an unsafe sleeping environment.
The appellant applies to have the material gathered as part of the coroner’s investigation and the Goudge Inquiry admitted as fresh evidence. The Crown fairly concedes that this material meets the test for fresh evidence. The Crown also agrees that the affidavit of the appellant and her trial lawyer should be admitted. These affidavits explain how it was that the appellant agreed to the procedure that led to her conviction for infanticide. The police, the Crown and the defence all relied upon Dr. Smith’s expert opinion and, given his stature at the time, the appellant and her counsel did not believe that they could successfully contest his opinion. As Crown counsel says in his factum, the fresh expert opinion now conclusively refutes critical aspects of Dr. Smith’s opinion. His opinion was a central underpinning of the Crown’s case at trial and without that evidence there was no reasonable prospect of conviction.
Given the cogency and reliability of the fresh expert opinion evidence, the Crown concedes that the appeal should be allowed, the conviction quashed and an acquittal entered. We agree. The fresh evidence is compelling and while it can never be conclusively established how the appellant’s child died, it is likely that he died accidentally.
[9] To paraphrase what this court said in R. v. Mullins-Johnson (2007), 87 O.R. (3d) 125, the death of a child is always tragic. In this case, the tragedy of four-month-old Joshua's death is compounded by the fact her mother was wrongfully convicted of infanticide, served a one-year jail sentence and lost the custody of her other child. It is now clear that the evidence cannot support a finding that the appellant killed her child. Indeed, Mr. Shandler concedes that had the fresh evidence been available back in 1996, the Crown would never have proceeded with any prosecution of the appellant. The fresh evidence shows that the appellant's conviction was wrong and that she was the subject of a miscarriage of justice. It is profoundly regrettable that, as a result of what has been shown to be flawed pathological evidence, the appellant was wrongly convicted.
Accordingly, the fresh evidence is admitted, the appeal is allowed, the conviction for infanticide is set aside and an acquittal entered.
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"For a few weeks this past spring, Sherry Sherret was probably the most interviewed stay-at home mom in Canada," Derek Finkel's article begins.
"After she was the focus of a big press conference in Toronto on April 23, a steady stream of reporters began knocking on the door of her small apartment in Belleville, Ont," it continues.
"There, they would meet the round-faced 31-year old brunette at the centre of one of Canada’s most explosive legal dilemmas.
Inside Sherret’s apartment, these reporters would chat with her talkative, saucer-eyed 19-month-old daughter, Madison, or fight for a spot to sit with Sherret’s three cats. If they spied her stereo equipment, they might strike up a conversation about Sherret’s disc jockeying company. Under different circumstances, these exchanges would seem like banal pleasantries, but in Sherret’s world, the simple presence of her child or the reminder of a sideline pursuit was infused with an almost suffocating weight.
Almost 12 years ago, Sherret was charged with the murder of her four-month-old son, Joshua. Her life was torn apart: Police officers and Crown attorneys scoffed at her proclamations of innocence. The Children’s Aid Society (CAS) took her other son, Austin, then 20 months old, away from her. One of the country’s most reputable pathologists testified in court that he’d bet the house that she’d killed her child. Assessments filed by four different psychologists and psychiatrists claimed Sherret suffered from a wide variety of personality disorders, though they largely disagreed on precisely which ones. No one seemed terribly surprised when Sherret was sent off to prison for a year.
Which explains why so many of these visiting journalists were somewhat taken aback to watch her laugh and play with Madison like any happy mother. Or why they were surprised if Sherret showed them a present day baseball-team photo, sent by the adoptive parents of Austin, now 13, whom she hasn’t seen in eight years, without shedding a tear. Overall, these reporters could only marvel at how level-headed, articulate and downright cheery Sherret was while answering some terribly difficult questions.
But what they were just beginning to understand was that Sherret and those around her had been hit by one of the biggest wrecking balls ever to smash its way through the Canadian justice system. Since those early dark days of grieving, she has endured a prolonged family nightmare that is, in many ways, completely unfathomable. And now, in an effort to clear her name, she will be forced to relive it all again.
“I did not kill Joshua,” Sherret will say to her media visitors and, later, to the courts. Sherret isn’t a small woman – she doesn’t have a problem referring to herself as “a big girl” – but her voice is as soft and delicate as a pixie’s. “What I want most of all now is for my other children, Austin and Madison, to know that I loved their brother and had nothing to do with his death. And to do this, all I ask for from the justice system is the opportunity to appeal my conviction.”
Baby Joshua spent much of the four month's of his life in tears. Even the moment after he was born on September 23, 1995, Sherret thought he looked an unhappy shade of purple. The nurses in the delivery room said he was just cold, and they took him away to lie under a heat lamp for a few hours. It didn’t seem to do much good, though. He cried almost incessantly from the moment he was back in her arms. Even when Sherret arrived back at her basement apartment (she lived then in Trenton, Ont., just west of Belleville) after being discharged from the hospital, little Joshua was still screaming non-stop Weeks went by, and he never managed to sleep for more than a couple of hours a day. Equally disconcerting was the fact that the baby also tended to throw up much of what he ate.
It was a lot to handle for a 20-year-old single mother who already had Austin, then a toddler, to keep her eye on. Peter Robinson, Sherret’s boyfriend and Joshua’s father, helped out as much as he could, but he still technically lived at home with his parents while going to school at a nearby college. Austin’s father lived in Nova Scotia, which Sherret’s family had left in 1993 when her father’s military posting was transferred to the base in Trenton, and was out of the picture.
Sherret took Joshua to various doctors and clinics, and even to the emergency department at the hospital on at least a half-dozen occasions throughout the fall and early winter, worried about his crying, vomiting and lack of sleep and how he sometimes seemed to have trouble breathing. She bristled every time a doctor told her that apart from Joshua’s nose being stuffed up, he seemed perfectly normal.
“I got tired of hearing people say, ‘He’s just being a normal baby,’” Sherret would recall later, when the journalists came calling. She might have had a Grade 9 education, but she knew children. “I had Austin, and he wasn’t like that. I’d babysat plenty of newborns, and none of them had ever been like Josh. What are the odds of one baby being completely different from any other child you’ve ever seen?”
On the evening of January 22, 1996, two weeks after the last of these medical appointments, Joshua was having a worse-than usual vomiting session. Robinson finally got Joshua to sleep after a prolonged bout of cradling and comforting. Joshua never seemed to stay asleep for long in his bassinet or his crib, so Robinson put him down in the playpen, on top of a sleeping bag folded several times underneath him, with a comforter and a few blankets on top.
Sherret gave the baby his last bottle shortly after midnight and returned to bed. At about 5:30 a.m., she heard some gurgling noises over the baby monitor, but no crying, so she and Robinson stayed in bed. They didn’t wake up again until 8 a.m., which was a shock for both of them, as Joshua had never slept through the night like that. Sherret checked on him first. When she reached the playpen, she saw that his body had gone stiff and that he wasn’t breathing. Sherret had been trained in CPR, but the shock of seeing her baby lying there dead had rendered her completely incapable. She yelled for Robinson and then ran out of the apartment, banging on her neighbours’ doors, screaming as loud as she could for help.
Finally, one of Sherret’s upstairs neighbours let her in and called the police. The two women then ran back down to Sherret’s apartment. Sherret was hysterical, sobbing and shrieking the same words over and over: “My baby’s dead.” The neighbour told her to hang on; an ambulance was on its way. At the hospital, doctors worked to revive Joshua; after half an hour, Sherret was told his colour was coming back. Fifteen minutes later, though, medical staff emerged to say he was gone.
The investigating coroner later told Sherret that sudden infant death syndrome (SIDS) might have been the cause of her son’s death but an autopsy at a Belleville hospital had been ordered. Then, during a routine X-ray beforehand, a fracture was detected in Joshua’s left ankle. As a result of the fracture – and the implication of possible abuse – Joshua’s body was transferred to the Hospital for Sick Children in Toronto. There, a full autopsy would be conducted by Dr. Charles Smith, arguably Ontario’s leading forensic pediatric pathologist. A month later, the police would ask Sherret and Robinson to come in for questioning.
Sherret and Rob inson endured lengthy individual interrogations. Soon after, a police officer, accompanied by representatives from the local Children’s Aid Society, arrived at their door to remove Austin from their home. “I just wanted to die,” Sherret now recalls. Both of my children were gone. That was my family. It just tore my heart out.” Then, on March 27, 1996, Sherret was charged with the first-degree murder of Joshua. Once Sherret posted bail, after a week in jail, she saw Austin as soon as she could. He’d been placed with a foster-care family, and Sherret was allowed two one-and-a-half-hour-long supervised visits with him per week. “I told him that Mommy and Daddy had some bad problems they had to fix,” Sherret says. “I said it was better for him to stay with the family he was living with now, and then once Mommy and Daddy’s problems were over, he could come back to live with us.”
It took almost two years for the preliminary hearing to begin, in January of 1998. The star witness was Dr. Charles Smith. When the dapper and bespectacled pathologist stepped into the witness box, Sherret could tell that everyone in the courtroom, including the judge, was impressed. Sheila Walsh, the Crown attorney prosecuting Sherret, wasted no time eliciting Dr. Smith’s opinions, many of which were infused with flurries of complicated medical terminology.
Dr. Smith told the court that his observations led him to conclude that Joshua had been intentionally suffocated or smothered by someone. To back up this theory, he pointed to some microscopic hemorrhages he’d observed on Joshua’s neck. Dr. Smith said these had occurred “either right around the time of death or in a short period of time prior to death,” which, he testified, precluded a diagnosis of SIDS as the cause of death. He also felt that there was evidence of swelling in Joshua’s brain, similarly inconsistent with SIDS, but common with a suffocation type of death.
Perhaps most shockingly, Dr. Smith told the court he’d by chance discovered microscopic evidence of a healing skull fracture from a sample he’d taken from the right side of Joshua’s head. In his cross-examination of Dr. Smith, Sherret’s lawyer, Bruce Hillyer, managed to get the pathologist to concede that the fracture could, in fact, be a “variation” of something called a suture – nothing more than an active site of bone growth, which is present in all healthy infant skulls.
It was a reluctant concession, for while the doctor didn’t attribute the fracture to Joshua’s death, hedescribed skull fractures in infants as “worrisome.” It was his opinion that Joshua’s passing had been no accident, even though he couldn’t be certain “beyond a reasonable doubt.”
“If I was a betting man,” Dr. Smith told the court, “I would bet that his death was non-accidental . . . but that’s based on pure probability alone.”
Sure probability or not, Dr. Smith’s testimony was enough to send Sherret to trial for murder. But in the weeks leading up to her trial, scheduled to begin on January 4, 1999, a year after the preliminary hearing, Crown attorney Sheila Walsh telephoned Bruce Hillyer to discuss a plea bargain.
Dr. Smith’s inability to take his opinions to the beyond a reasonable-doubt level had given her misgivings about proceeding with the murder charge. She asked Hillyer what his client might be willing to plead guilty to.
Sherret had been completely floored by Dr. Smith’s testimony. The notion of her smothering her own son made her shudder every time she thought about it. She had no idea how Joshua could have a skull fracture or neck injuries. Sherret had made it clear to Hillyer that she would never, under any circumstances, admit to causing Joshua’s death.
After discussions with Sherret, her father and Robinson, Hillyer told Walsh that Sherret would plead not guilty to the lesser charge of infanticide (often used in cases where mothers kill their children as a result of severe post-partum depression) but would not contest the various facts that implicated her in the crime.
In other words, Sherret would be found guilty while maintaining her innocence. Despite Sherret’s vehement denials, her lawyer thought the Crown had a decent chance of securing a murder conviction, primarily through Dr. Smith’s testimony.
The judge presiding over the trial, Mr. Justice R.G. Byers, struggled with how to sentence Sherret, mostly because her case had little in common with “usual infanticide cases,” he said, where you have a “mother who is remorseful and ashamed” for killing her baby.
Sherret is not remorseful, the judge reminded Hillyer. “She doesn’t even think she did it, nor does her family.”
In the months that it took Judge Byers to determine the appropriate sentence, given the circumstances of this somewhat perplexing case, Sherret had another crushing decision to make. Austin was almost five years old and was still with the same foster-care family that had taken him in 1996. Sherret was convinced that she was likely going to prison, and she was coming to terms with her losing him, and him losing her. “I felt I had no choice but to be separated from him,” she would later say. “As a mother, I learned that loving included letting go. I had to sacrifice my life so that he could have his.”
Two days before her sentencing hearing on June 2, 1999, Sherret signed papers that released Austin for adoption to his foster parents. She wouldn’t have the right to see him again until he was 18.
“During my last visit with him,” Sherret now recalls, “Austin sat there, and I told him that Mommy had to go away. And he said, ‘No.’ I said, ‘Why not?’ He said, ‘Because you lied.’ ‘What do you mean Mommy lied?’ I asked. ‘You said I’m coming home once you’re better.’ I had promised that things would get better, and they didn’t. I just sat there and I bawled. For a five-year-old child to remember something so specific that I’d told him more than three years earlier was one thing, but for him to come back and say I’d lied . . .”
Judge Byers wasn’t sympathetic as he read his decision in court. “Who speaks for Joshua?” he asked. “Is his life so unimportant that his mother, who killed him without explanation, without apparent remorse, should go free without punishment? What signal does that send to this accused? To this community? Well, I speak for him now. He was important. He was a human being. He was only four months old. And, madam, you killed him. In my book, that means you go to jail.”
The judge asked Sherret to rise. He sentenced her to 12 months in prison and to two years of probation. He ended by declaring that she was no longer able to be the parent of an infant child.
Sherret spent the next six months at the Vanier Centre for Women in rampton, Ont., just northwest of Toronto. Vanier was often referred to as a prison but it was really more of a correctional facility: There were cottages, a school, a gym, a field and a dining hall. She managed to make a few acquaintances and take some courses. Her imprisonment was progressing as well as it could.
That all changed about six months into her sentence when one of the female inmates called her a “baby killer.” “It took five guards to pull me off that girl,” Sherret recalls. “Then I was thrown in a segregation cell before being sent to a new cottage. A couple of days later, they transferred me to the Quinte Detention Centre in Napanee.”
At Quinte, more local jail than prison, she was in a cell with four bunks and a constant stream of new roommates. “The main thing I remember about Quinte,” says Sherret, “is that I had an almost identical conversation with so many of the women who stayed in that cell with me – all of the weekenders and so forth. They’d start with a question, like, ‘You’re the baby killer, right?’ I’d reluctantly say, ‘Yeah, why?’
‘Well, we don’t think you did it.’ So I’d ask why they thought that, and so many of them would say, ‘Serial killers, rapists, murderers – these people don’t keep pictures of their victims and family in their cell. You have pictures of both your sons on your bunk.’ ”
Sherret was incarcerated for eight months. But when she emerged, the repercussions of Joshua’s death continued to steamroll her life, as well as those close to her. Her relationship with Robinson, whom she had married in the summer of 1997 while waiting for Dr. Smith to testify at her preliminary hearing, had become increasingly strained. They would end up separating in 2002.
Two years after her separation from Robinson, though, things finally began to turn around. Sherret landed a job as a technical-support professional with a Belleville- based computer and internet company called Stream International. Not long after starting at Stream, Sherret began dating a fellow employee named Robert Scott. In February 2005, they learned that Sherret, now 29 and almost a decade removed from Joshua’s death, was pregnant again.
Suspecting that the Children’s Aid Society would come calling once she’d given birth, Sherret informed her local CAS office that she was expecting, and a caseworker was assigned to monitor her. When her daughter, Madison, was born the following September, the CAS ordered that Sherret not ever be left alone with Madison – not even for one second. Sherret and Scott jumped through hoops to make sure another family member or friend was with Sherret at all times so that their daughter wouldn’t be taken from them.
The local CAS seemed content with this arrangement until February 2006, when Madison was four months – the same age as Joshua when Sherret supposedly killed him. Sherret was then informed that at an upcoming hearing in family court, the CAS was going to take the position that she should be barred from her home indefinitely, leaving Scott to care for Madison on his own. The CAS believed that Sherret was entering a “danger period” with her daughter.
Sherret knew she was going to have to fight to keep from losing her daughter. She’d been worried about Madison being taken from her even before she’d been born. A few weeks prior to her due date, Sherret had called her former lawyer, Bruce Hillyer, and asked him if he’d be willing to write a letter to the CAS on her behalf. Hillyer agreed to support her but he also informed Sherret of another crucial development in her case: Since her conviction, serious questions had been raised regarding the competency of Dr. Charles Smith.
The allegations being levelled against Dr. Smith were so grave that the chief coroner for Ontario had ordered a review of “44 criminally suspicious or homicide cases” dating back to 1991 in which Dr. Smith had conducted autopsies or provided opinions. In his letter to the CAS on behalf of Sherret, Hillyer also pointed out that the Ontario College of Physicians and Surgeons had commissioned its own panel, which, he wrote, “concluded that they were ‘extremely disturbed by the deficiencies in [Dr. Smith’s] approach.’
“Some cases come back to haunt you,” Hillyer added. “This [Sherret’s] is one of them.”
Sherret researched Dr. Smith on the internet and discovered some stories shockingly familiar to her own. One of the saddest cases involving Dr. Smith was that of William Mullins-Johnson, of Sault Ste. Marie, Ont., who spent a dozen years in prison for the murder of his four-year-old niece, based largely on Dr. Smith’s testimony that she had been sexually assaulted and strangled while he’d been babysitting her. Mullins-Johnson was released from custody in September 2005 and acquitted in October 2007 after a number of other forensic pathologists found Dr. Smith’s opinions untenable.
Mullins-Johnson’s dramatic release from prison had been largely orchestrated by a group based in Toronto called the Association in Defence of the Wrongly Convicted (AIDWYC). The director of AIDWYC, James Lockyer, had not only represented Mullins- Johnson in his bid for freedom, Sherret discovered, he’d also been involved in two of the biggest Canadian wrongful conviction cases in recent history – those of David Milgaard and Guy Paul Morin. Sherret began to wonder if AIDWYC might be able to help her.
“It actually took me five months to call AIDWYC,” says Sherret. “I’d call their number and a woman would answer, and I’d hang up. I was scared. I didn’t want anyone not believing me again.”
Once Sherret had mustered the courage to speak to someone at AIDWYC, she soon found herself on the wayto Toronto for an interview with James Lockyer. Over the course of his career, Lockyer had listened to many sad stories of those done wrong by the justice system, but when it came to children, Lockyer was particularly sensitive, being the parent of a young boy himself. Not long after his meeting with Sherret, Lockyer became determined to prevent Madison from being taken away from AIDWYC’s newest client. Lockyer convinced Ontario’s chief coroner, Dr. Barry McLellan, to fast-track his office’s internal review of Sherret’s case so the results would be available for the CAS to consider.
A month later, on the evening of March 28, Lockyer returned to Toronto from an AIDWYC-related trip and discovered that the report regarding the death of Joshua Sherret-Robinson had arrived while he’d been away. When Lockyer saw that it had been written by Ontario’s top forensic pathologist, Dr. Michael Pollanen, he began to read it with great interest.
Each finding of Dr. Smith was systematically dismantled in Dr. Pollanen’s report. Joshua’s fractured left ankle was healing and was an isolated injury that had likely happened accidentally. Incredibly, the neck hemorrhages Dr. Smith had claimed were the result of asphyxiation had actually been caused by Dr. Smith himself when he dissected Joshua’s neck during his autopsy, and Dr. Smith’s own autopsy report made no mention of the brain swelling that he’d offered up during his preliminary hearing testimony as evidence that Joshua had been suffocated. And the ominous skull fracture? It wasn’t a fracture at all. It was, as Bruce Hillyer had suggested eight years earlier, a completely normal growth site in the bone known as a cranial suture.
Dr. Pollanen concluded that a definitive cause of death could not be determined. Despite this uncertainty, however, he believed that potential explanations for Joshua’s death were to be found in his sleeping environment. Joshua had been placed face down in a makeshift crib “constructed from a playpen, using a sleeping bag and a quilt as a sleeping surface.” The fact that the baby had a comforter bunched up around his head when Sherret found him on the morning of his death likely also played a role.“Forensic pathologists,” he wrote, “have become increasingly aware that unsafe sleeping environments are often associated with sudden death in infancy.”
Shortly after 11 p.m., Lockyer called Sherret from his car as he drove home to tell her about the report. Once he’d finished, there was silence on the other end. Then, after a long pause, he thought he heard some whimpering. He kept driving and asking, “Sherry, are you all right?”
“There was a two- or three-minute silence,” says Lockyer. “Then I started crying, too. I had to pull over. I couldn’t see through my tears.”
On April 19, 2007, after 18 months of review, the team of international pathologists assembled to examine Dr. Smith’s practices concluded that it was troubled by 20 of the 45 cases it looked at. Sherret’s was one of 12 prosecutions the team felt might have resulted in a wrongful conviction as a result of Dr. Smith’s testimony.
After reviewing Dr. Pollanen’s report, the CAS quickly terminated its supervision order for Sherret’s daughter, Madison, and officially stepped out of their lives. Sherret’s next step was to officially clear her name, but there was just one problem: The deadline for her to file her appeal – no more than 30 days after her conviction – had passed eight years ago. Citing the highly unusual circumstances of the case, Lockyer applied for an extension to file an appeal on Sherret’s behalf before the Ontario Court of Appeal.
“I never tried to appeal my conviction for infanticide,” wrote Sherret in her application to the court, filed in May. “My counsel never discussed an appeal with me. I never believed I had any basis for an appeal. The first time I realized I might have a basis to appeal was after Dr. Pollanen’s first report in March 2006.”
Sherret appeared before the Court of Appeal on July 26, 2007, and, with the Crown’s consent, was granted a one-week extension to file an appeal, which likely won’t be heard until sometime in 2008. “Soon enough,” said Sherret, a few weeks after the decision, “people will know that 11 years ago, I said Josh was sick. The Court of Appeal will now hear that he was, in fact, sick. All I can do now is sit back and let James Lockyer do his job and hope for the best.”
After a decade of suffering, Sherret is now poised for public redemption. But what’s most important to Sherret is that Austin and Madison grow up never doubting her love for them – or Joshua. One day, when Austin is old enough to see her again, she’ll be able to prove that she’d been telling the truth all along, trying to fix her problems so she could get him back. Sherret had promised long ago to set things right, and even if it takes most of Austin’s youth for her to do so, he’ll live the rest of his life knowing his mother has kept her word."
Harold Levy...hlevy15@gmail.com;
