In a previous posting, I reported Brenda Waudby's lawyer's allegation that prosecutors would not would not withdraw a charge of murdering her daughter, Baby Jenna, unless she first pleaded guilty to a Family Court allegation that had previously physically assaulted her; (See Part Three; Case Studies' Systemic Factors; The "Jenna" Case; April 17, 2008);
Two problems:
First problem; The prosecutors were withdrawing the charge because they had received evidence indicating that Waudby could not possibly have committed the crime. (Jenna's babysitter later admitted killing Baby Jenna and sexually assaulting her);
Second problem: Waudby had never physically assaulted Baby Jenna - (another flawed opinion of Dr. Charles Smith. She only pleaded guilty - with all of the consequences relating to her family vis @ vis the local Children's Aid Society that the guilty plea would entail - to get rid of the horrific murder charge.
Sadly, Waudby is not the only one of Dr. Smith's victims who felt compelled to plead guilty to an offence they did not commit in a prosecution involving Dr. Charles Smith;
Previous postings to this Blog have shown how an innocent mother named Sherry Sherrett felt she had no choice but to agree to be convicted of infanticide in connection with the death of her beloved son Joshua in order to avoid being found guilty of murdering him - and going to prison for life - because of Dr. Charles Smith's celebrated prowess over jurors.
This Blog has also looked at the the direct consequences to Sherrett - including a year spent in prison and the collateral damage caused to her family. (See recent posting: Collateral damage; Part One and Part Two;)
I was absolutely stunned to hear defence lawyer Bruce Hillyer's account at the Goudge Inquiry as to how he had to assist Sherrett with an unusual "nolo contendere" plea - in which there is no acknowledgment of guilt - even though he was confident that the medical evidence he would call pointed to her innocence;
Hillyer made clear to Commission Counsel Mark Sandler that Sherrett never ever admitted guilt to him, that she insisted she had never hurt Joshua or done anything unlawful to him, and that she believed Joshua died because of mould or the unconventional bed she had recently put him in.
A loving, utterly innocent mother, mother spent a year in prison following her pragmatic plea;
Outrageous;
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By way of brief introduction:
Joshua died in January of 1996 at the age of four (4) months in Trenton.
At the time of Joshua's death, Sherry, his mother, was twenty (20) years old.
On March the 27th of 1996, she was charged with first degree murder.
She was committed on that charge after a preliminary inquiry.
That committal was subsequently quashed and a charge of second degree murder substituted.
On January the 4th of 1999, a new indictment charging infanticide was placed before the Court.
She entered a plea of not guilty.
The Crown read into the record certain agreed facts.
The defence called no evidence in response to those facts and did not dispute them.
As a result, he was convicted of infanticide and sentenced to a one
(1) year custodial term followed by probation.
Related Children's Aid proceedings involving Joshua's brother and another child, a daughter, that was born to Sherry in September of 2005.
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The following excerpts from the transcript paint an excellent picture of what Hellyer faced as defence counsel in this case - and of Sherrett's brutal predicament:
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Excerpt One: Hillyer's view of the merit's of the Crown's case:
MR. MARK SANDLER: So when you look at the merits of the case, here you were at the end of the preliminary inquiry, and I'll -- I'll take you to the end of the period where you successfully brought a certiorari to -- to quash the first degree charge, and the second degree charge was substituted. How did you feel about the strength of the defence case?
MR. BRUCE HILLYER: On the medical side, I -- well it -- it -- the problem was from my experience as a jury trial lawyer, you know, the -- the unknown is there. I mean, I -- I had -- it was going to come down to my client's word against a fellow like Smith who, s Mr. Struthers says, was very articulate, well spoken, good posture; would quickly, as you can see from the transcript, go off on tangents, and talk about other issues with some purported degree of expertise.
And, you know, that was -- it was going to be -- I was troubled by -- by it, but I was -- academically, I wasn't worried about the medicine, assuming I had a trier of fact that could cut the wheat from the chaff. I guess I was worried a jury might not be able to do that.
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Excerpt Two: The Judges's out of court view of Dr. Smith's reputation:
MR. MARK SANDLER: All right. Did you have any dialogue with Dr. Smith outside of the courtroom prior to, during, or after the preliminary inquiry?
MR. BRUCE HILLYER: I don't think so.
MR. MARK SANDLER: All right.
MR. BRUCE HILLYER: But I did with the -- with the preliminary hearing judge.
MR. MARK SANDLER: All right.
MR. BRUCE HILLYER: The only reason I mention that is that he was -- he took me aside afterwards, and it's a very small town; very small
courtroom; and said, You know, Dr. Smith's a very good witness, and they were -- he was very proud of him. I guess Dr. Smith -- I don't whether he'd done any -- any
of his work down in the Belleville area, but they -- he was certainly well known down there. And you know, it was just more information to assimilate. He was -- the judge was encouraging me to enter into plea negotiations with -- with the Crown.
MR. MARK SANDLER: All right.
MR. BRUCE HILLYER: Who I understood he was -- he jogged with.
MR. MARK SANDLER: All right. I mean, you're not suggesting anything improper --
MR. BRUCE HILLYER: No, not at all. No, no. I have high regard for Ms. Walsh. She handled herself very well.
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Ecerpt Three: How the Crown initiated plea discussions: -
MR. MARK SANDLER: And it reflects that on October 15th of 1998, Ms. Walsh sent a memorandum to Staff Sergeant MacLellan in which she stated: "Since our last conversation, I've spoken to Bruce Hillyer about our offer of a plea of guilty to infanticide. Today, he agreed to give a firm answer by November 15. By that time, he should be able to have arranged for a psychiatric evaluation of Sherry to canvass the issues relevant to infanticide which will hopefully also
address sentencing issues and to meet ith her." Were discussions taking place as between you and Sheila Walsh about a potential resolution to infanticide?
MR. BRUCE HILLYER: Well, how that all ar -- we'd already had a pretrial -- a judicial pretrial -- where we were talking about the length of the trial, whether there would be challenge for cause. I think challenge for cause was more -- more liberal then, than it is now. There was a window of time where it was, anyway. And we may have had discussions then, but I indicated there would be no plea being offered. And as we got closer to -- to the trial date, I think Sheila called me, and asked me to -- I think her first -- asked me to consider was manslaughter, and I -- I just -- I said I'll pass it on, but I don't -- I'm sure the answer will be no, and it was. And then she called back, and surprisingly said, Well you gotta give me something. She was very uneasy about -- about prosecuting the case. And I said, Well, I don't know what it could be. And, so I said, But I'll have a look, which was sort of -- I sort of didn't think that it would amount to anything. And then I started wandering through the - the criminal code, and the charge of infanticide caught my attention, because I'd never dealt with it before.
And the only way I could even think that it would possibly be an appropriate charge would be on the basis that my client had -- was well aware of the health problems the child was having, and she, in fact, had gone out of her way to report the matter to the landlord, to the local health authorities, but she was a
single -- single mother on, I believe, social assistance, you know, very -- very -- not very -- no resources. And then we got to the -- and in discussions with the bedding, she was concerned that .. all these loose sleeping bags and blanket was --
wasn't an appropriate way to deal with -- to deal with bedding for such a young child, because I think the baby had just moved from a -- from a crib setting into this -- into this more unconventional setting. And, you know, she was communicating to me, if only I had gotten up in the night or whatever, and
-- and that was the only way I could -- I could even justify it in my own mind, and without speaking to my client, I communicated that to Ms. Walsh.
MR. MARK SANDLER: And just stopping there for a moment. What I -- what I'm hearing you saying is that a plea of guilt based upon omission as
opposed to commission.
MR. BRUCE HILLYER: Right.
MR. MARK SANDLER: Okay.
MR. BRUCE HILLYER: Yes. And Ms. Walsh came back and said, No, she would insist on -- on commission, and so I -- I just said, Well, is -- are you
saying you'll do that? And she said she would, so I said, Well, I'll put it to -- I'll put it to my client.
MR. MARK SANDLER: Now, just stopping there for a moment. Just to be clear, who had initiated this discussion as to possible resolution?
MR. BRUCE HILLYER: The Crown.
MR. MARK SANDLER: And you said that she had some discomfort or expressed some concern about -- about the case. Did she tell you what it was that --
MR. BRUCE HILLYER: No.
MR. MARK SANDLER: -- caused that --
MR. BRUCE HILLYER: I mean I didn't -- I didn't understand what was going on then, what -- what I've seen here now. I just assumed it was -- well, I
hoped, I guess, in a perfect world that she thought that the medical evidence was not going to go very far. There were some evidentiary issues that were going to get revisited at the trial with respect to the KGB statements that we had -- we had spent all our time on at the preliminary hearing, virtually, anyway, or was she just was feeling sorry for my client; I didn't know -- I didn't know what it was.
MR. MARK SANDLER: All right.
MR. BRUCE HILLYER: But it was just a desire to -- to find a resolution that was nowhere near manslaughter or murder.
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Excerpt Four: Hellyer puts the Crowns's plea offer to Sherrett:
MR. MARK SANDLER: So, could -- could you give the Commissioner a sense, first of all, of -- of how the conversation then went with your client that
ultimately resulted in what transpired in Court?
MR. BRUCE HILLYER: Yeah, well, this is - I know it was -- it was re -- I think it was recorded somehow, but it was done in Mr. Bonn's office. I asked
that -- that my client and -- and her parents go into Mr. Bonn's office in Trenton and that --
MR. MARK SANDLER: Mr. Bonn was who?
MR. BRUCE HILLYER: He was the lawyer whose office had asked me to help.
MR. MARK SANDLER: All right.
MR. BRUCE HILLYER: For lack of a better description, the solicitor. And I was on the line at the other end and I put to -- I put them -- I put the options to my client, discussed the -- what -- what the -- what
could happen. And I'm assuming she made the decision right away, but I'm not sure, but she made it clear that she would not plead guilty to anything. And so -- and I
don't know whether it was during that phone call or whether it was later -- I assume it was during that phone call because I've -- I've done a lot of work in the
states. I'm a member of the Board of Governors of the American Trial Lawyers Association, which is now the American Association for Justice. And I've par -- taken part in their -- not only their civil sections, but their criminal sections,
as well, and I was always interested in this nolo contendere or whatever they call it down there, nolo pros. And I ran it by my partner of the day, who's now Justice Forsyth, who actually wrote a paper on -- on the need for -- in the Criminal Lawyers Quarterly, I think, on the need for a nolo pros procedure, because, of course, I had to face -- I had to look myself in the mirror when -- at the end of the day and hope I had done the right thing. And -- and then I called -- I think I must have gotten instructions that if -- if we can do it that way, she would do it, and then I contacted Ms. Walsh and put that proposal to her which she accepted.
MR. MARK SANDLER: All right. Had -- throughout the process, up to and including the time that the case was dealt with in Court, did the client ever
admit guilt?
MR. BRUCE HILLYER: No.
MR. MARK SANDLER: And did you have a sense of the factors that informed her decision to proceed by way of nolo contendere rather than to proceed
to trial?
MR. BRUCE HILLYER: Could you say that again, please?
MR. MARK SANDLER: Did you have a sense or did you discuss with her what factors informed her decision to take that offer?
MR. BRUCE HILLYER: I guess it would just be a fear of going to trial and being found guilty of second or manslaughter and having an extensive period of -- a far more lengthy period of time in jail.
MR. MARK SANDLER: Okay. Now, if you go to -- well, I'll ask you this. It's probably implicit, if not explicit, in what you've already said, but you had consulted Dr. Plunkett; you'd consulted Dr. Jaffe. We've heard what Dr. Jaffe had had to say about the case. What level of confidence did you have in ultimate success on the murder trial, had it proceeded to trial?
MR. BRUCE HILLYER: I had a good level of confidence on the medical evidence. What I didn't have a good level of confidence on was in my client. She was extremely stressed and upset over the events surrounding
the death of Joshua. She -- you've got to appreciate the -- this is a small town. The Children's Aid had -- first of all, the fact that anyone would think that -- that she killed her child; second of all, the Children's Aid had taken away her -- her other child. She was -- I won't say irrational, but she was -- she was difficult. It was very difficult to sort of communicate effectively with her in a very logical -- logical sense, because she was consumed with -- with all the emotional, whether it was guilt in her mind for not having gotten up that night or whether the way the bed was made, or whether it was the social pressure that she
was -- she was getting from the community. She was telling me stories about people
making fun of her and speaking unkindly of her. She was really in a mess intellectually and emotionally, in terms of making decisions which is why I insisted that she have her parents there and Mr. Bond, the solicitor, to hopefully, effectively communicate what the options were. I mean, if -- at the end of the day,
looking forward in the crystal ball, you don't know how a jury is going to perceive something. I've got Doctor -- or I've got Judge Hunter telling me what a great witness this guy is; Jaffe is telling me what a great witness he is. I hadn't -- I didn't dance with him at the preliminary because -- I was ready to. If you see in the material, I had a whole pile of medical stuff I was ready to go at him with, but he didn't -- he didn't hurt me in- chief. I just drew a circle around him and left him alone. So I was reasonably confident, but it's not me that has to do the time, so I wasn't prepared to recommend that she gamble.
MR. MARK SANDLER: All right. If you go to page 100 of the overview report, we see that paragraph 199, that on September the 7th of 2005 you drafted a letter on Sherry's behalf to assist her with the family law proceedings. And you reflected: "I was quite perplexed in representing her about whether or not the Crown could establish that her child had, indeed, died as a result of an unlawful
act. The Crown's case rested primarily on the opinion of Dr. Smith, the forensic pathologist with the Centre of Forensic Sciences in Toronto, who, at the time, had a very high reputation in his field. In preparing the defence, I had commissioned opinions from Dr. Jaffe, a forensic pathologist from Toronto, and I also consulted with American doctors who I spoke with on the telephone. They were all deeply troubled by what Dr. Smith reported but, in essence, they deferred to him,
with the exception of Dr. Jaffe, with respect to his conclusions and findings." Just stopping there for a moment. Does hat assist in refreshing your memory as to what you ight have received from -- from those other than Dr. Jaffe about the case?
MR. BRUCE HILLYER: Not really.
MR. MARK SANDLER: Okay.
MR. BRUCE HILLYER: Don't forget, I wrote that letter in '05, so. Yeah, I'm not so sure that that comment is correct; it may be but I don't know.
MR. MARK SANDLER: And then you reflect: "Faced with the prospect of a conviction and all that flows from that, I vigorously represented Sherry, and at the eleventh hour, the Crown's office, no doubt for good reasons, elected to resolve the matter by way of a plea for the rarely used charge of infanticide on the basis that at the time, Sherry was suffering from post partum depression. The compromise was seen as a way out for both sides. The Crown fearing they couldn't get a conviction of any kind, and the defence fearing a conviction for murder, while not justified, would result in a lengthy period of incarceration." And then you reflect some of the
psychological or psychiatric opinions that were rendered, and then you say:
"Some cases come back to haunt you, and this is one (1) of them." Ad then you reflect certain -- more recent information that have cau -- that has called into
question Dr. Smith's testimony, and you say: "It's far to late to ever know what
happened -- really happened with respect to the death of Sherry's child, but I'd like to think in all the circumstances, and in particular, with respect to the reports that I have enclosed and were commissioned so many years, that one (1) shouldn't have any concerns now. In my view, even then with respect to Sherry's ability to ook after a child and to be a lovingand caring mother." And did that represent your views of the case?
MR. BRUCE HILLYER: It certainly did.
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Excerpt Five: How to reconcile Sherrett's unbending denial with the opinions of other experts? (Doctors and psychologists);
MR. MARK SANDLER: Now, one (1) of the things I just want to ask you about very briefly, and I won't take you to all the documentation, but it would
appear that -- that the various psychologists, or psychiatrists weighed in on Sherry's case, gave some conflicting views on -- on how to analyze her situation. And -- and am I right that one (1) of the factors that appears to explain some of the different views is -- is how to reconcile what it was that she had been found guilty with, with her continuing denial that she had committed the offense?
MR. BRUCE HILLYER: I -- yeah. I -- yeah, it -- it's hard for me to answer that question. I mean, it -- I suspect the -- the doctors must have
assumed that -- that she smothered her child and that they were sort of working with that as part of their hypothesis. With -- and -- and they were struggling
with coming up with a -- with a diagnosis. This --
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Excerpt Six: The lack of remorse conundrum:
MR. MARK SANDLER: And we also see that the presiding justice appeared to rely upon the absence of remorse in determining what the appropriate sentence was. Am I right?
MR. BRUCE HILLYER: Yes. In fairness to Justice Byers, she was very -- I don't know whether you know this, but once this became known about Dr. Smith and this -- and this case has been back in the news, was -- I'm told publically commented on it in the local media down in Trenton, and sort of regretted the way that it had all unravelled.
Harold Levy...hlevy15@gmail.com;
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