the charles smith blog

Thursday, August 4, 2011

SHERRY SHERRET RETROSPECTIVE: PART NINE; HER 'FRESH EVIDENCE" FILING IN THE ONTARIO COURT OF APPEAL; THIRD OF FOUR SECTIONS;

PUBLISHER'S NOTE: THE ACQUITTAL OF SHERRY SHERRET, DIRECTED ON MONDAY DECEMBER 7, 2009, BY THE ONTARIO COURT OF APPEAL, WITH THE CONSENT OF THE CROWN, IS AN ENORMOUS TRIBUTE TO THE ASSOCIATION IN DEFENCE OF THE WRONGLY CONVICTED (AIDWYC), WIN WAHRER, ITS DIRECTOR OF CLIENT AFFAIRS, AND THE THREE LAWYERS WHO HANDLED HER CASE: JAMES LOCKYER, ZACHARY KERBEL AND ANDRAS SCHRECK; THIS BLOG IS PLEASED TO PRESENT FOR OUR READERS THE FRESH EVIDENCE FACTUM FILED ON MS. SHERRET'S BEHALF IN THE ONTARIO COURT OF APPEAL. IT IS A MASTERFUL DOCUMENT WHICH MAKES VERY CLEAR THE ROLE PLAYED IN THIS UGLY MISCARRIAGE OF JUSTICE BY DR. CHARLES SMITH - AND THE COMPLEX PROCESS BY WHICH IT WAS FINALLY UNRAVELLED. I HAVE CHOSEN TO RUN THE DOCUMENT IN FIVE PARTS BECAUSE OF ITS LENGTH.

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8. "THE FRESH EVIDENCE:"
Introduction:

31. In February, 2006, at the Appellant’s request, the Chief Coroner asked Dr. Pollanen, the Chief Forensic Pathologist for the Province of Ontario, to review the case. In due course, Joshua’s body was exhumed and re-autopsied. In his report on the case, Dr. Pollanen disagreed with many of Dr. Smith’s findings and concluded that there was no determined cause of death. He was of the opinion that the evidence could reasonably support a conclusion that death occurred by accidental asphyxial means consequent on an unsafe sleeping environment “without any influence of another party”. The case was also reviewed by a neuropathologist, and a second forensic pathologist who came to the same conclusions as Dr. Pollanen.
Report of Dr. Pollanen, March 28, 2006, Fresh Evidence Materials, Tab 4, p. 15

A. Events Leading Up to the Re-examination of the Case:

32. After her release, the Appellant returned to live with her husband, who had never believed that she had killed Joshua. The Appellant, who has a grade 9 education, did one year of a Business Administration course at Loyalist College in Belleville. In 2002, she and her husband separated. From 2004 to February, 2007, the Appellant was employed as a technical support professional by Stream International.
Affidavit of the Appellant, November 7, 2009, Fresh Evidence Materials, Tab 1, paras. 3, 22

33. In 2004, the Appellant began a relationship with Robert Scott, a co-worker at Stream International. In 2005, she became pregnant. Because she was on the Child Abuse Registry, she and Mr. Scott advised Hastings Children’s Aid Society of her pregnancy. She also contacted her trial counsel, Bruce Hillyer, who, on September 7, 2005, wrote a strongly supportive letter to the Children’s Aid authorities on her behalf. He wrote:

In representing Ms. Sherret I was quite perplexed about whether or not the Crown Counsel 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. Charles Smith, a forensic pathologist with the Centre of Forensic Sciences in Toronto, who at that 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, whom 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.

Faced with the prospect of a conviction for murder and all that flows from that, I vigorously represented Ms. Sherret and at the 11th hour the Crown’s office, no doubt for good reasons, elected to resolve this 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.

This compromise between the Crown and defence 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 that a conviction for murder while not justified would result in a lengthy period of incarceration.
(Emphasis in original)
A worker at the Hastings Office was assigned to the case. On September 29, 2005, the Appellant gave birth to a healthy daughter, Madison.
Affidavit of the Appellant, November 7, 2009, Fresh Evidence Materials, Tab 1, para. 21
Affidavit of Bruce Hillyer, November 9, 2009, Fresh Evidence Materials, Tab 2, para. 11
Letter from Bruce Hilllyer to “To Whom It May Concern”, September 7, 2005, Appeal Book, vol. 2, p. 371

34. One month later, on November 1, 2005, the Chief Coroner announced that he was conducting a review of criminally suspicious and homicide cases, dating back to 1991, in which Dr. Charles Smith had performed an autopsy or provided an opinion. The Chief Coroner noted that “concerns [had been] raised about the conclusions reached in a number of cases where Dr. Smith was either the primary or a consultant pathologist.” He announced that 44 cases were to be reviewed (a number later revised to 45) by a team of “external” pathologists. He said:
The reviewers will be asked to provide their opinions on the following:

First, whether they agree that the important examinations were conducted;

Second, whether they agree with the facts reported as arising from these examinations; and

Finally, whether in their opinion, the conclusions reached with respect to the cause of death are supported by the materials available for review.

One of the cases to be reviewed was Joshua’s case. Five pathologists were chosen to participate in the review:
· Dr. John Butt (Vancouver)
· Professor Christopher Milroy (Sheffield, England)
· Professor Helen Whitwell (Birmingham, England)

· Professor Jack Crane (Belfast, North Ireland)
· Professor Pekka Saukko (Helsinki, Finland)
See Backgrounder “Review of Criminally Suspicious and Homicide Cases Where Dr. Charles Smith Conducted Autopsies or Provided Opinions”, November 1, 2005, Appeal Book, Vol. 2, p. 418

35. In the meantime, from Madison’s birth in September, the Appellant had been forbidden by the Children’s Aid Society from ever being alone in her presence. Madison’s father, and his parents, were the primary “supervising” caregivers. An Assessor was appointed by Hastings CAS to provide an opinion on the case. On January 22, 2006, the Assessor provided a 41 page report which concluded as follows:
It is recommended that the Hastings Children’s Aid Society continue to supervise this family, at minimum for the next year of Madison’s life, to ensure the family continues to maintain the condition that Ms. Robinson is not left unsupervised with Madison.
. . . . .

This has been a most difficult matter to assess given the seriousness of the situation. It is hoped that Ms. Robinson will see this plan as the “second chance” she has been praying for even though it is not believed she can be unsupervised with the child. I wish them the best in their future endeavours.

Despite the Assessment Report, Hastings CAS still considered it necessary, now that Madison was approximately the same age as Joshua had been when he died, to seek a Court order excluding the Appellant from the family home for at least one year, with Madison remaining in the custody of her father. The Application was scheduled to be heard in Family Court in Belleville on February 22, 2006.
Affidavit of the Appellant, November 7, 2009, Fresh Evidence Materials, Tab 1, para. 22

36. In February, 2006, the Appellant telephoned the Association in Defence of the Wrongly Convicted (AIDWYC) and asked for assistance. On February 14, 2006, she was interviewed by counsel. A letter was sent the same day to the Chief Coroner, Dr. Barry McLellan, requesting an immediate review of Joshua’s case . The letter concluded with the following request:

On February 22, 2006 a court proceeding is scheduled in Belleville at which time the Children’s Aid authorities will be seeking to persuade the Family Court that Ms. Sherret should be removed from the family home for at least one year, giving sole custody to Madison’s father for at least one year. Neither Madison’s father nor Ms. Sherret want this to happen.

It is the death of Joshua and Ms. Sherret’s alleged responsiblity for it which are the sole cause for the Children’s Aid position regarding Madison. Consequently, a review of the cause of Joshua’s death in 1996 acquires huge importance in the Children’s Aid position and the Court’s decision on February 22.

The external review of the pathology of Joshua’s death is most welcome but will inevitably take some time, perhaps a year or more.

May I therefore request that your office conduct its own review of Joshua’s death forthwith because of the urgency of the matter. If Joshua died of natural causes, as AIDWYC believes he likely did, Ms. Sherret may be about to become the victim of a third miscarriage of justice. Madison will become a victim too.

If you were able to conduct such a review, perhaps you could let me know in writing as to the likely date for its conclusion so that I can forward your letter to Ms. Sherret’s family law counsel in Belleville. He can then present it to the Court on February 22 and request an adjournment of the Family Court proceedings until your internal review has been completed.
On February 16, 2006, Dr. McLellan agreed to have the Appellant’s case reviewed internally forthwith, and advised that it would likely take eight weeks for the review to be completed. Hastings CAS thereupon agreed to an adjournment of their application pending in the Family Court.

Affidavit of the Appellant, November 7, 2009, Fresh Evidence Materials, Tab 1, para. 24
Letter from Appellant’s counsel to Dr. McLellan, February 14, 2006, Appeal Book, vol. 2, p. 373
Letter from Dr. McLellan to Appellant’s counsel, February 16, 2006, Appeal Book, vol. 2, p. 375
Letter from Robert Green to Appellant’s counsel, February 23, 2006, Appeal Book, vol. 2, pp. 393

B. Dr. Pollanen’s First Report:

37. On March 28, 2006, Dr. Michael Pollanen, after reviewing all available materials on the case, prepared his first report on Joshua’s death. In his report, Dr. Pollanen recorded a number of relevant findings.
(i) The skull fracture reported by Dr. Smith

38. Dr. Pollanen expressed the opinion that there was no skull fracture, and that Dr. Smith had simply observed a section of Joshua’s developing cranial suture under the microscope. He continued:
In my view, it would be unsafe to base any decision-making on the opinion that a skull fracture was present.

For the avoidance of doubt on this, Dr. Pollanen recommended that Joshua’s body be exhumed.
My best advice is that the skull ‘lesion’ is most likely a developing cranial suture. But, since there could be lingering doubt on this important issue, I believe an exhumation is justified. (emphasis in original)

Report of Dr. Pollanen, March 28, 2006, Fresh Evidence Materials, Tab 4, pp. 11-14

(ii) The neck hemorrhages reported by Dr. Smith

39. Dr. Pollanen examined microscopically the sections of Joshua’s neck in which Dr. Smith had reported hemorrhages were present. Dr. Pollanen found the “hemorrhages” to be post-mortem artefacts created by Dr. Smith during the autopsy when he dissected Joshua’s neck. Dr. Pollanen wrote:

But, these ‘hemorrhages’ are positioned along the periphery of the tissue and are adjacent to planes of dissection of the neck. On this basis, these hemorrhages are dissection-related artefacts, rather than injuries. In my opinion, there is no safe inference that can be made on these findings, i.e., these findings are not evidence of neck compression.

Report of Dr. Pollanen, March 28, 2006, Fresh Evidence Materials, Tab 4, p. 14

(iii) The ankle fracture:

40. Dr. Pollanen also observed the microscopic slides taken from Joshua’s left tibia (ankle). He wrote in this regard:
This represents a healing injury to the left ankle. How the injury occurred cannot be determined from the autopsy findings. A twisting or distracting motion on the ankle most likely caused the injury. This may have been an injury caused by the actions of another person, or by an accidental mechanism.

Classically, the metaphyseal fracture is considered to be an injury often found in cases of child abuse. But, in this case the injury is isolated. It is not part of a wider spectrum of skeletal injury such as multiple rib fractures of varying age, or multiple bilateral metaphyseal fractures involving the knees and other joints. On this basis, it is difficult to clearly conclude that the isolated metaphyseal fracture is an injury related to abuse or maltreatment.

Report of Dr. Pollanen, March 28, 2006, Fresh Evidence Materials, Tab 4, p. 14

(iv) Dr. Pollanen’s conclusions as to the cause of death:

41. Dr. Pollanen concluded that no definitive cause of Joshua’s death could be determined. He found no evidence of a homicidal cause of death:
Specifically, there is not positive evidence to support manual compression of the face or neck as the cause of death, since no injuries are present.
He further noted:
But, some forms of homicidal mechanical asphyxia in infants may leave little or no evidence at autopsy (e.g., suffocation or smothering) and cannot be excluded on the basis of autopsy findings alone.

SIDS was excluded as a diagnosis due to the presence of the ankle fracture.
Report of Dr. Pollanen, March 28, 2006, Fresh Evidence Materials, Tab 4, p. 14

42. Dr. Pollanen ascribed the cause of death as “unascertained” but postulated a “readily [explicable]” cause of death. He first set out his understanding of Dr. Smith’s conclusions in his preliminary hearing testimony; that death likely resulted from homicidal asphyxiation. Dr. Pollanen next set out why he disagreed with this diagnosis:
1. Based on the available information, it is unsafe to conclude that there is a skull fracture.
2. There is no neck injury.
3. There are no facial or conjunctival petechial hemorrhages.
4. There is a hazardous sleeping environment that readily explains death on an accidental basis.

Dr. Pollanen explained at length how Joshua’s hazardous sleeping environment may have led to his death:

An important consideration in this case is the scene, since it may have important implications for the cause of death. Specifically, the infant was found face-down in a make-shift crib. The ‘crib’ was constructed from a playpen using a sleeping bag and a quilt as a sleeping surface. In addition, Sherry Sherret indicated to the police that “the comforter was bunched up at the end [of the playpen] around his head and the infant had only recently been sleeping in the playpen rather than a bassinet. Based on previous thinking, this could very well be a significant factor to explain death. Forensic pathologists have become increasingly aware that unsafe sleeping environments are often associated with sudden death in infancy.

Dr. Pollanen concluded:

In my view, the scene and autopsy findings can reasonably support the conclusion that death occurred by an accidental asphyxial means in an unsafe sleeping environment, without any influence of another party. The precise situational factors that may have been involved in this case include both head covering by bedding and prone positioning on a soft depressible surface. Thus, asphyxia may well have occurred by re-breathing in a microenvironment with concomitant over heating. (emphasis in original)

Report of Dr. Pollanen, March 28, 2006, Fresh Evidence Materials, Tab 4, pp. 14-16

C. The Exhumation:

43. Further to Dr. Pollanen’s recommendation that Joshua’s body be exhumed, permission was immediately granted by the Appellant. The exhumation took place on May 29, 2006. Pollanen conducted the re-autopsy. In his report dated August 10, 2006, he referred to his previous review of the case in March:
At the request of the Chief Coroner for Ontario, I undertook a review of the forensic pathology of this case. The review was broadly-based and included all available medical evidence stemming from the death investigation. Based on the materials provided, I formed different conclusions to Dr. Smith concerning the cause and mechanism of death.

Dr. Pollanen noted that the relevance of the exhumation went to the “skull fracture issue” only. He found the exhumed skull to be in “satisfactory condition” and to be “adequately preserved for analysis”. He then provided a concise and definitive conclusion:
There is no skull fracture present in the exhumed skull.

Report of Dr. Pollanen, August 10, 2006, Fresh Evidence Materials, Tab 5, pp. 4, 9
Correspondence between Appellant’s Counsel and Chief Coroner, Appeal Book, vol. 2, p. 375-379

44. Dr. David Ramsay, a neuropathologist at the University Hospital, London Health Sciences Centre, was retained by the Appellant to attend the post-exhumation autopsy. He set out his conclusions in a report as follows:

There is no evidence of a skull fracture. The histological ‘abnormalities’ that Dr. Smith interpreted as a skull fracture were simply the normal appearance of a joint between two skull bones.

Dr. Ramsay went on to consider some of Dr. Smith’s other findings:

The abnormalities of the scalp remain unexplained and no tissue is available to allow their approximate age to be determined under the microscope. Therefore, Dr. Smith’s suggestion that they could have been caused by resuscitation efforts, while reasonable, is unverifiable. The minor abnormalities in the left temporalis muscle, while they might be haemorrhages, could also be artefacts. There is no evidence that these abnormalities had a major or fatal effect on the central nervous system.

There is evidence of recent minor intradural, subdural and subarachnoid bleeding. These are most likely to be artefacts.

There is evidence of old minor subdural bleeding, but this is a common finding in infants who die of natural causes with no history of a head injury.

There is no evidence of cerebral oedema (i.e. brain swelling). The features that led Dr. Smith to this conclusion are normal findings (i.e. the brain weight is normal, the size of the cerebral cortex ventricles is normal and tonsular notches may be a normal finding.) Moreover, the photographs show no evidence of flattening of the surface of the brain.

In Dr. Ramsay’s opinion:
There is no neuropathological explanation for Joshua’s death.
Report of Dr. Ramsay, July 23, 2007, Fresh Evidence Materials, Tab 8, pp. 5-6

The Termination of the Children’s Aid Proceedings

45. On August 24, 2006, the Appellant’s counsel wrote to Children’s Aid, and enclosed Dr. Pollanen’s post-exhumation report. He asked:
In all the circumstances would you consider removing the restrictions on Ms. Robinson’s custody of Madison. It seems to me that the validity of her infanticide conviction is now sufficiently doubtful that removal of the restrictions would be in the interests of justice, and in the interests of Madison and her mother. The present situation places a considerable strain on Ms. Robinson even though she has been dealing with it remarkably well.
In April, 2007, the CAS notified the Appellant that they were no longer seeking to supervise her care of Madison and, on April 11, 2007, Madam Justice Malcolm of the Ontario Court of Justice ordered the CAS Supervision Order to be terminated.
Letter from Appellant’s counsel to Hastings C.A.S., August 24, 2006, Appeal Book, vol. 2, p. 405

D. Dr. Jack Crane’s Review of the Case:

46. The external pathologists who reviewed 35 of Dr. Smith’s cases conducted their reviews in December, 2006. Professor Jack Crane, the state pathologist for Northern Ireland, was assigned the task of reviewing Joshua’s case, and completed a report. In his December 5, 2006 Autopsy Report Review Form, he wrote:

(1) Dr. Smith had not properly described Joshua’s injuries.

(2) Dr. Smith had failed to note a natural disease of bronchopneumonia that Joshua may have been suffering at death.

(3) Dr. Smith’s description/interpretation of Joshua’s injuries did not match the autopsy photographs.

(4) Dr. Smith’s description/interpretation of Joshua’s injuries did not match the histology (microscopic examinations) of the case.

(5) Dr. Smith’s testimony at the preliminary hearing was not reasonable and balanced.

(6) The cause of death opinion provided by Dr. Smith in his testimony was not the same as that provided in his Autopsy Report.

(7) The cause of death given by Dr. Smith was not reasonable based on the available information.

Professor Crane concluded:
The exhumation assisted in the confirmation/or rebuttal of the skull fracture and casts serious doubts on the view that this was a homicide.

The presence of inflammatory changes in the lungs may represent an early respiration infection, which could have contributed to sudden and/or unexpected death.

The playpen where the child died posed a real risk of death from accidental suffocation and this possibility was not adequately taken into account.
Prof. Crane’s Autopsy Review Form, December. 5, 2006, Fresh Evidence Materials, Tab 10, p. 2

47. Professor Crane prepared a more comprehensive Medico-Legal Report in 2007 at the request of the Goudge Inquiry. He disagreed with Dr. Smith’s diagnosis of asphyxia as the cause of death:
The autopsy report prepared by Dr. Smith was quite detailed but is lacking any form of discussion or opinion as to how the diagnosis of asphyxia, as the cause of death, was determined. It seems most likely that it was on the basis of the finding of petechial haemorrhages on the thymus, pleura and pericardium, congestion of the lungs and microscopic haemorrhages in the connective tissue of the neck. Furthermore, a diagnosis of asphyxia is vague and non-specific and should properly be provided in the context of the mechanism by which it was produced, e.g. compression of the neck.

In my review of the material in this case, including the autopsy photographs and microscopic slides, I can find no evidence to substantiate a diagnosis of asphyxia. The finding of petechial haemorrhages (pinhead-sized) spots of bleeding on the surfaces of the internal organs is a common finding in all types of infant deaths and is of no significance whatsoever. In many cases petechiae on the internal organs such as the thymus etc. may represent post-mortem congestion due to posture (face-down position) of the body after death. Congestion of the lungs merely represents a terminal event and again is of no significance in diagnosing asphyxia. The microscopic foci of bleeding in the sections taken from the internal neck structures are minute and only represented the edges of the sections and can be discounted as being of any significance. Thus it is my opinion that based on the autopsy findings described by Dr. Smith, there is no objective pathological evidence to support a diagnosis of asphyxia. (emphasis in original)

Like Dr. Pollanen, Professor Crane could not come up with a definite cause of death, and agreed that Joshua’s unsafe sleeping environment may well have caused his death:
Having reviewed this case I am of the opinion that, based on the autopsy findings, no definite cause of death can be identified. The location of the death, specifically in the playpen where there were blankets and quilts, and the face-down sleeping position raises concerns about the possibility of accidental suffocation. Indeed in a number of series of investigation (sic) of sudden deaths in infancy, unsafe sleeping environments, including co-sleeping in an adult bed or on a sofa, have been identified as significant factors. Conclusive proof in such cases, and indeed specifically in this case, is usually lacking, thereby precluding a definitive cause of death being given. There was no evidence in my opinion which would indicate compression of the neck. Although deliberate suffocation may not be associated with any findings at autopsy, there would appear to be no other evidence to support such a diagnosis.

There was, in Professor Crane’s opinion, no evidence of a skull fracture - “Dr. Smith misinterpreted the microscopic sections which had been taken across the suture”. In addition, Professor Crane was highly critical of Dr. Smith’s testimony at the preliminary inquiry:

It is my view that parts of Dr. Smith’s testimony to the court were misleading. Whilst he does concede that he cannot be sure of the cause of death he uses, what I consider to be inappropriate language, terms such as “If I was a betting man, I would bet that it was”. (Reference to death being non-accidental). He also commented “I am certainly highly suspicious of that”. (Referring to suffocation). Also in his evidence he makes reference to neck haemorrhage as being worrying and would increase the likelihood of a non-accidental etiology whereas in my opinion this was no more than an artefactual finding.

The evidence presented by Dr. Smith was unscientific, speculative and in my opinion prejudicial.

Medico-Legal Report of Professor Crane, Fresh Evidence Materials, Tab 11, pp. 3-6

48. In November, 2007, Professor Crane testified at the Goudge Inquiry as a member of a panel of three external reviewers and presented his opinions on the case in the same manner as in his two reports. He told the Commissioner that he considered the cause of death as “unascertained”. He explained that there was “a significant possibility that the death could have been caused by some form of suffocation in an unsafe sleeping environment.” He continued:
What I’m saying is there could be a range of possibilities, but what we have in this particular case, is a child being found in a face-down position in an unsafe sleeping environment where there were quilts and blankets.

And we do know that in such a position, infants may be susceptible to airway obstruction, which could result in death.

The Commissioner then asked Professor Crane:

Q. Do you mean by, “significant possibility,” likelier than any other explanation you can offer, based on the pathology?

A. Well, it’s not based on the pathology because the pathology hasn’t shown anything. It’s based on, if you like, the environment and the circumstances where that child was found.

Q. That is what I was getting at. It is not based on the pathology, but offering that opinion, would you be offering it as an effective differential explanation that is more likely than any other?

A. Yes, I think I would, Commissioner, yes.

The other two external reviewers, Dr. Butt and Dr. Milroy, who shared the stage with Professor Crane, agreed with Professor Crane’s findings.
Evidence of Professor Crane, Dr. Butt and Dr. Milroy, Inquiry into Pediatric Forensic Pathology in Ontario, November 19, 2007, Fresh Evidence Materials, Tab 12, p.247
Evidence of Professor Crane, Dr. Butt and Dr. Milroy, Inquiry into Pediatric Forensic Pathology in Ontario, November 22, 2007, Fresh Evidence Materials, Tab 13, p. 90

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The post can be found at:

http://smithforensic.blogspot.com/2009/12/exoneration-of-sherry-sherret-part.html

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PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at:

http://www.thestar.com/topic/charlessmith

Information on "The Charles Smith Blog Award"- and its nomination process - can be found at:

http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;

Wednesday, August 3, 2011

CAROLYN BELLAMY; RECEIVES 18-MONTHS ON LESSER OFFENCE IN DEATH OF GRANDDAUGHTER IN "SHAKEN-BABY" CASE; GRESHEM OUTLOOK;

"Bellamy was convicted of criminally negligent homicide, and deemed responsible by Judge Janice Wilson for Ariana’s death; however, the actual events of Oct. 12, 2009, the day that Bellamy called 9-1-1 to report that Ariana was not breathing, remain somewhat unclear.

“I hope you can live day by day knowing that you have hurt so many people by doing this violent act,” Ariana’s father, Josh Magathan, said at the sentencing. “You know what happened and you just can’t admit it.”

Wilson agreed that the facts of what happened to Ariana still need to be revealed."

REPORTER LAUREN GOLD; GRESHEM OUTLOOK;

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"Ariana Magathan died on Oct. 16, 2009, just before she turned 2," the Gresham Outlook story by reporter Lauren Gold published on Augist 3, 2011 under the heading, "Bellamy sentenced to 18 months in death of granddaughter: Carolyn Bellamy also will serve three years of post-prison supervision," begins.

"More than a year and a half later, her grandmother, Carolyn Bellamy, 60, formerly of Gresham, was sentenced to 18 months in prison with three years of post prison supervision," the story continues.

"She is also required to pay restitution funds and a compensatory fine to the family for funeral expenses.

She has already served 14 months.

Bellamy was convicted of criminally negligent homicide, and deemed responsible by Judge Janice Wilson for Ariana’s death; however, the actual events of Oct. 12, 2009, the day that Bellamy called 9-1-1 to report that Ariana was not breathing, remain somewhat unclear.

“I hope you can live day by day knowing that you have hurt so many people by doing this violent act,” Ariana’s father, Josh Magathan, said at the sentencing. “You know what happened and you just can’t admit it.”

Wilson agreed that the facts of what happened to Ariana still need to be revealed.

“I hope that at some point you can come to terms with whatever it was you did,” Judge Janice Wilson said at the sentencing. “I think that would bring peace to a lot of people.”

Bellamy’s attorney, Russell Barnett, argued that Bellamy does feel guilty for the death of Ariana, despite her “stoicism” at the trial.

“I assure the court that her feelings of concern, remorse, responsibility … are there,” Barnett said.

All parties lament the child’s death and say that no amount of money or jail time can bring Ariana back.

“This family has been profoundly impacted by the death of their loved one,” Deputy District Attorney John Casalino said."

The story can be found at:

http://www.theoutlookonline.com/news/story.php?story_id=131240192743604200

PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at:

http://www.thestar.com/topic/charlessmith

Information on "The Charles Smith Blog Award"- and its nomination process - can be found at:

http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;

SHERRY SHERRET RETROSPECTIVE: PART EIGHT. HER "FRESH EVIDENCE" FILING IN THE ONTARIO COURT OF APPEAL; SECOND OF FOUR SECTIONS.

PUBLISHER'S NOTE: THE ACQUITTAL OF SHERRY SHERRET, DIRECTED ON MONDAY DECEMBER 7, 2009, BY THE ONTARIO COURT OF APPEAL, WITH THE CONSENT OF THE CROWN, IS AN ENORMOUS TRIBUTE TO THE ASSOCIATION IN DEFENCE OF THE WRONGLY CONVICTED (AIDWYC), WIN WAHRER, ITS DIRECTOR OF CLIENT AFFAIRS, AND THE THREE LAWYERS WHO HANDLED HER CASE: JAMES LOCKYER, ZACHARY KERBEL AND ANDRAS SCHRECK; THIS BLOG IS PLEASED TO PRESENT FOR OUR READERS THE FRESH EVIDENCE FACTUM FILED ON MS. SHERRET'S BEHALF IN THE ONTARIO COURT OF APPEAL. IT IS A MASTERFUL DOCUMENT WHICH MAKES VERY CLEAR THE ROLE PLAYED IN THIS UGLY MISCARRIAGE OF JUSTICE BY DR. CHARLES SMITH - AND THE COMPLEX PROCESS BY WHICH IT WAS FINALLY UNRAVELLED. I HAVE CHOSEN TO RUN THE DOCUMENT IN FIVE PARTS BECAUSE OF ITS LENGTH.

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4. THE APPELLANT’S ARREST AND RELEASE ON BAIL:

15. On March 7, 1996, the police interviewed the Appellant and Peter Robinson at the police station. It was apparent from the interviews that the police believed that the Appellant had murdered Joshua. After the interviews were over, the police and Northumberland Children’s Aid apprehended the Appellant’s other son Austin. He was then 19 months old. On March 17, 1996, the Appellant was arrested and charged with first degree murder. She was granted judicial interim release a week later.
Affidavit of the Appellant, November 7, 2009, Fresh Evidence Materials, Tab 1, para. 12

16. On April 11, 1996, a meeting was held that was attended by the Crown, Sheila Walsh, the two officers-in-charge, the coroner, Dr. Smith and Dr. Becker. S/Sgt. MacLellan’s notes of the meeting included the following:
- Pathologist report
- Significant points 1.3 hemorrhage in neck (fresh)
1.4 cerebral edema (swelling of brain)

could be from slow death
could be from bruises on head
3. Contusions of scalp

Both are consistent with someone right handed pushing baby’s head down.
Handwritten Notes of S/Sgt. G. MacLellan, April 11, 1996, Appeal Book, vol. 1, p.336

17. Then, on January 15, 1997, Ms. Walsh wrote to defence counsel in the following terms:
I have just been informed by Dr. Smith that one of the microscopic slides from the post mortem discloses a skull fracture. Dr. Smith apparently just realized that this fracture is not noted in his report. I have asked Dr. Smith to send me a description of the fracture and will disclose this as soon as I receive it.

On January 17, 1997 and April 18, 1997, Ms. Walsh wrote to Dr. Smith for clarification regarding the skull fracture but seems to have never received a reply.
Letter from Ms. Walsh to Mr. Hillyer, January 15, 1997, Appeal Book, vol. 1, p. 17
Letter from Ms. Walsh to Dr. Smith, January 17, 1997, Appeal Book, vol. 1, p. 18
Letter from Ms. Walsh to Dr. Smith, April 8, 1997, Appeal Book, vol. 1, p. 19

5. THE PRELIMINARY HEARING:

18. The preliminary hearing was held in Belleville before His Honour Judge S. Hunter commencing on January 27, 1997. Due to problems with Dr. Smith’s availability, it took a year to complete. Dr. Smith, himself, testified on January 12, 1998. In his testimony, he attributed Joshua’s death to “asphyxia” and said that his post-mortem findings were “consistent” with suffocation or smothering by a third party. He referred to hemorrhages in the neck tissues visible under the microscope, which he described as “disconcerting”. He was asked:

Q. Did your post mortem reveal anything unusual that caused you concern with respect to whether this is a non-accidental or accidental suffocation?

A. Let me make a couple statements about that. First of all, I can’t tell you for sure how the asphyxia occurred. You’ve suggested suffocation. I can’t tell you for sure it’s suffocation, though, though I am certainly highly suspicious of that. So that’s the first statement. The second is, is that there was some microscopic evidence of hemorrhage in the neck tissues. And that is certainly a disturbing finding which would, would lend support to, to the suggestion or to a hypothesis that this is a suffocation-type of death.

Dr. Smith described the hemorrhages as having occurred “either right around the time of death or in a short period of time prior to death.” This finding, he testified, precluded a diagnosis of Sudden Infant Death Syndrome (SIDS) as the cause of death. Dr. Smith described Joshua’s left ankle fracture, which had been noted in x-rays by the radiologist, Dr. Babyn, as a “healing” fracture. He said:
[It] is a form of injury, which in infancy is, it has a high degree of specificity for non-accidental injury. That is to say it is, it is as classic an indicator of non-accidental injury as one can find with bony injuries in young people.

Dr. Smith testified that there was evidence of swelling of Joshua’s brain, a finding consistent with asphyxia but inconsistent with SIDS.
Evidence of Dr. Smith, Preliminary Hearing, Appeal Book, vol. 1, p. 24/25-30/15

19. Dr. Smith next spoke of the skull fracture. He testified that Joshua had a healing skull fracture, not visible to the naked eye nor able to be seen by x-ray. It was what he described as “a chance finding on microscopic examination.” He was unable to say precisely where, within the skull, the fracture was (because he had not recorded exactly from where he had taken the sample that revealed the fracture under the microscope) but believed it was most likely from the area between Joshua’s right ear and the top of his skull. In cross-examination, Dr. Smith acknowledged that the skull “fracture” could have been no more than a “variation” in the normal “pattern of sutures of an infant skull”; yet, despite this concession, Dr. Smith clearly thought otherwise. He did not attribute this healing fracture as the cause of Joshua’s death as such, but described skull fractures in infants as “worrisome”.

Evidence of Dr. Smith, Preliminary Hearing, Appeal Book, vol. 1, p. 26/20-27/15, 27/30-28/10

20. At the end of his examination in chief, Dr. Smith was asked:

Q. Now you may have already answered this indirectly, Dr. Smith, but are you able to express an opinion as to what is more probable in this case, accidental or non-accidental death?

He responded:

A. If I take all of the information and not just the, not just limit the autopsy finding simply to the, those related to asphyxia only, in my opinion it’s more likely that Joshua died on a non-accidental basis than on an accidental basis; however, I can’t be absolute on that and if I dare use a term which is one that you better understand than I, which is that of “beyond a reasonable doubt”, I can’t use that kind of terminology to support my opinion. I can, I’m, you know, I’m certainly very suspicious of a non-accidental cause of Joshua’s death. If I was a betting man, I would bet that it is, but that’s based on pure probability alone, but I can’t go to a level of certainty using the kind of terminology that you’re familiar with.

Evidence of Dr. Smith, Preliminary Hearing, Appeal Book, Vol. 1, p. 31/20-32/5

21. At the conclusion of the preliminary hearing, the Appellant was committed for trial on the charge of first degree murder. An Application to Quash was brought in the Superior Court and, on May 26, 1998, the application was granted by Mr. Justice Lally of the Superior Court, who quashed the committal for trial on the charge of first degree murder and substituted a committal for second degree murder.
Endorsement of Lally J., May 26/98, Appeal Book, vol. 1, p. 370
Affidavit of B. Hillyer, November 9, 2009, Fresh Evidence Materials, Tab 2, para. 3

6. EVENTS LEADING UP TO THE TRIAL:

22. The Appellant and her trial counsel, Bruce Hillyer, address in their affidavits filed on the appeal how the case unfolded at trial. The Appellant describes the emotional consequences of being accused of murdering Joshua, the shame and humiliation that she suffered, and the fear and the strain it caused to her marriage and to her parents’ marriage. She remembers Dr. Smith testifying at the preliminary hearing and what he said. She relates her fears for her elder son, Austin. She felt despair at her situation.
I had no hope for the future and felt that my fate was such I would probably be convicted of murder even though I had done nothing wrong.

Affidavit of the Appellant, November 7, 2009, Fresh Evidence Materials, Tab 1, paras. 13 to 17

23. The Appellant was very worried about her other child Austin. He was apprehended two weeks before her arrest and placed in a foster home. She had limited supervised access to him for three hours each week. She liked the foster parents and began to feel that it might be best for Austin if she let him go. She describes her eventual decision in her affidavit:
... knowing that I was probably going to prison, I was more able to come to terms with losing Austin, and Austin losing me. I felt that I had no choice but to be separated from him. Two days before my sentencing in June, 1999, I signed the papers to release Austin for adoption by his foster parents. I learned that loving included letting go. However, his adoptive parents have allowed me to maintain telephone contact with them, and permit (and encourage) me to write to Austin twice a year on his birthday and at Christmas, and to buy him presents. I have lots of photographs of him, and he has lots of photographs of me. His new parents keep me informed of his progress at school, and other aspects of his life. Of course I still love him but I struggle with knowing that, because so much time has gone by, he must remain with his adoptive parents until he reaches at least 18, as anything else would disrupt his life and risk his well being. I have recently telephoned Northumberland Children’s Aid and asked them to tell Austin’s parents this. Of course, I would love to see him in person, but that is up to his adoptive parents.

Affidavit of the Appellant, November 7, 2009, Fresh Evidence Materials, Tab 1, paras. 14, 15, and 18

24. The Appellant always denied to her counsel, and all the professionals with whom she came into contact, that she had done anything to Joshua to cause his death. Mr. Hillyer states in his affidavit:
I can state categorically that the Appellant always denied to me that she had done anything to cause Joshua’s death. She was unable to explain Joshua’s skull fracture or neck hemorrhages or ankle fracture. She likewise insisted on her innocence in all her meetings with psychiatrists and psychologists whose reports were filed with the Court on her sentencing hearing. She explicitly denied any wrongdoing as well in her interview with the probation officer who prepared her pre-sentence report.

The Appellant states in her affidavit:

The reports filed with the Court in 1999 demonstrate my insistence that I never harmed Joshua. Psychiatric and psychological reports from Dr. Ruth Bray, Dr. Stephen Hucker, Dr. Karen Smith and Dr. Arthur Wolfgart, and my Pre-sentence Report set out at length my denials that I had in any way harmed Joshua. As well, my husband knew that I did nothing to harm Joshua.

Affidavit of the Appellant, November 7, 2009, Fresh Evidence Materials, Tab 1, para. 19
Affidavit of the Bruce Hillyer, November 9, 2009, Fresh Evidence Materials, Tab 2, para. 10

25. Dr. Ruth Bray, a forensic psychologist, assessed the Appellant in October, 1998 prior to her trial. She stated in her report:
[Sherry] denied having ever seriously contemplated doing anything which she knew would hurt Joshua.

Dr. Stephen Hucker, a forensic psychiatrist at the Faculty of Health Sciences, McMaster University, also assessed the Appellant at the request of her counsel in 1998. In his report of December 28, 1998, Dr. Hucker wrote:

SUBJECT’S ACCOUNT OF THE ALLEGED OFFENSE:

On the night of Joshua’s death, Mrs. Sherret indicated to me that Joshua had been “doing his crying thing for hours ...Peter finally got him to sleep.” Because the baby “never seemed comfortable with cribs and bassinet” they put him in a playpen with his comforter. They had a “baby monitor” set low but still audible. She thinks it must have been about 1:00-2:00 a.m. when the baby finally settled and went to sleep. She recalls hearing him around 5:30 a.m. She says she “thought nothing of it ...just gurgling so I went back to sleep.” She now thinks this must have been the baby in distress. She says they awoke around 7:45 or 8:00 a.m. with the alarm and in surprise something to the effect that “Josh slept through the night!” She stated that when she went to wake him up he was “already stiff as a board ...wasn’t breathing.” She also said that she had “been trained in CPR ..but when it’s yours you flip ...don’t know what to do.” She says she started screaming and ran out of the apartment banging doors. She says the baby was taken away by ambulance and she was still “hoping something could be done” though she realized he “was probably gone.” Despite this, she told me that she now believes that more could have been done to save her baby - “I’m not saying they caused his death but, if they’d tried a little longer...”

She says she first thought Joshua must have died of SIDS as the coroner had mentioned this at the apartment. When she was herself charged with his death she “thought there was something going on but I wasn’t sure what.” Her reaction was “I don’t believe this, why are you doing this to me?” She told me that she believed it was because of something her husband said to the police - “they were brainwashing him for four hours.” She says she thinks he said something about her remark, “I don’t want to hurt him” but she says she cannot remember this. She insists that she never had any thoughts of intentionally harming her son.

Report of Dr. Bray, Appeal Book, vol. 1, p. 350
Report of Dr. Hucker, December 28, 1998, Appeal Book, Vol. 1, pp. 363-364

26. Bruce Hillyer describes in his affidavit how the plea bargaining developed into what can best be described as a “nolo contendere” hearing at her trial:
Prior to the commencement of trial, Crown counsel Sheila Walsh (now deceased) telephoned me and seemed uneasy about proceeding to trial on the murder charge. I told her that no plea would be forthcoming on that charge or on a charge of manslaughter. She asked me what charge the Applicant might be prepared to consider pleading guilty to. I told her I would get back to her and I scoured the Criminal Code looking for something that might work. The only thing close was Infanticide on the theory that the Applicant had been slow to respond to her child after she had noticed his distress (i.e. an act of omission). I then discussed this with Ms. Walsh. She indicated willingness to such a plea but only if the facts included an act of commission instead of an act of omission.

I discussed these ideas with the Applicant over the telephone in early December, 1998, a discussion that also included her father and her husband, Peter Robinson. The Applicant gave me instructions that she would agree to the Crown’s offer. However, she insisted that she could not, and would not, herself, acknowledge that she had done anything to cause Joshua’s death. On the basis of these instructions I negotiated what might be best described as a “nolo contendere” proceeding with the Crown. On December 17, 1998, Ms. Walsh wrote to me in the following terms:

This will confirm our conversation of yesterday’s date indicating our agreement to proceed with the above trial on January 4, 1999 by way of agreed statement of fact. I understand that your client will plead “not guilty” to the charge, but will not contest the facts read in and will offer no evidence, other than a psychiatric report, which you will disclose to me in advance. I will advise the Court that the Crown is seeking a conviction on the lesser offence of infanticide. We have no agreement as to sentence submissions.

On January 4, 1999, the plea bargain was consummated in the Superior Court in Belleville before Mr. Justice R.G. Byers.

Affidavit of B. Hillyer, November 9, 2009, Fresh Evidence Materials, Tab 2, paras 8-9

7. THE TRIAL AND SENTENCING:

27. On January 4, 1999, the Appellant was arraigned before Mr. Justice Byers in the Ontario Court (General Division) at Belleville, Ontario, on an indictment as follows:
Sherry Lee-Ann Sherret stands charged that she, on or about the 23rd day of January, 1996, at the City of Trenton in the East Region, unlawfully did commit infanticide on the person of Joshua Cameron Sherret-Robinson, contrary to Section 233 of the Criminal Code of Canada.

The Appellant elected trial without a jury and pleaded not guilty. The Crown read in a set of facts which the Crown and her counsel, Mr. Bruce Hillyer, had “drafted together”. These facts contained a claim that the Appellant had smothered Joshua:

With respect to the evening of January 22nd and into the morning of January 23, 1996, Ms. Sherret spent most of the day and evening with the children at her parents’ house. She asked her mother to keep the baby overnight, but her mother could not as she had to go to work. At about 9:30 p.m. she returned home with Mr. Robinson and the children.

Mr. Robinson testified at the preliminary hearing that he put the baby to bed the night of the baby’s death. He said that the baby had been throwing up a little more than usual that evening, but Mr. Robinson had no concerns for his health when he put him to bed. The baby was placed on his belly with his face turned to the side in a playpen in the living room, with an adult sleeping bag folded several times underneath him, and a comforter and a couple of blankets over him.

Ms. Sherret gave the baby his last bottle at about midnight and put him back down in the playpen. She returned to the bedroom and she and Mr. Robinson both went to sleep. Some time prior to 8:00 a.m. Sherry Sherret got up and smothered Joshua Sherret-Robinson causing his death.

Ms. Sherrett later gave conflicting accounts as to what happened after she retired for the night. She told some witnesses that she had heard the baby making gurgling noises around 5:00 or 5:30 a.m., but that she did not get up to check on him. She told other witnesses that she got up to check on him and he was fine.

Ms. Sherret and Mr. Robinson both awoke at about 8:00 a.m. on January 23, 1996. Ms. Sherret went to the baby first, called Mr. Robinson into the room, then left the apartment banging on doors and yelling that she needed to use a phone. Catherine Chandler, an upstairs neighbour, let her in. Ms. Sherret said the baby wasn’t breathing, and Ms. Chandler called the police. They both went down to Ms. Sherret’s apartment. Ms. Sherret was hysterical, screaming, “My baby’s dead” over and over. Ms. Chandler told her to hang on as an ambulance was on the way. Ms. Sherret said, “How can they help the baby when he’s been gone for three hours?” Another tenant, Kate Jordan, overheard this.

At the hospital, Ms. Sherret told two nurses and a doctor that she knew how the baby had died, as she had a dream that night that he had suffocated.

. . . . .

Dr. Charles Smith performed an autopsy on the baby at the Hospital for Sick Children. He determined the cause of death to be asphyxia. He ruled out mould or disease as a cause of death. Pinpoint hemorrhages in the tissue of the eyelids, sometimes present in non-accidental asphyxia, were not found in this case. Dr. Smith was highly suspicious that the death was non-accidental, but there were no overt signs of violence upon which to make a conclusive finding.

A microscopic skull fracture was discovered months after the original post mortem. It was not initially visible to the pathologist. Dr. Smith testified at the preliminary hearing that this skull fracture could have been caused on either an accidental or non-accidental basis and was not the cause of death.

A bucket handle fracture was detected on the baby’s left ankle. This could have been caused on either an accidental or non-accidental basis. This type of fracture, along with the age of the infant, caused Dr. Paul Babyn, radiologist at the Toronto Hospital for Sick Children, to suspect child abuse. (emphasis added)

Summary of Facts, Transcript of Trial Proceedings, January 4, 1999, 110/5 to 112/30

28. After the Crown had read the allegations to the Court, the Appellant’s counsel advised the Court:
I am instructed, Your Honour, not to offer or call any evidence in rebuttal of those facts.

The Court then found the Appellant guilty of Infanticide as charged. The outstanding indictment against her for Second Degree Murder was withdrawn.
Transcript of Trial Proceedings, January 4, 1999, 113/1-10, 116/5-15

29. A Pre-Sentence Report was prepared in anticipation of the Appellant’s sentencing. She had no prior criminal record. The probation and parole officer, Ms. Victoria DeGrace, wrote:
Ms. Sherret does not accept responsibility for Joshua’s death, and her sources of support including her immediate family members and her husband enable her to maintain her denial. The closest acknowledgment from Ms. Sherret, with respect to culpability, is a suggestion by her that she may have placed too many blankets around Joshua the night of his death. (emphasis added)

Dr. Karen Smith, a psychologist, provided a psychological assessment of the Appellant which was filed at her sentencing hearing. She wrote:
Ms. Sherret relayed her experience of the night that Joshua, aged four months, died. She said that she put him to bed after giving him a bottle at midnight. She notes that he couldn’t get comfortable in the playpen where he slept. She put in a comforter and a sleeping bag. Around 5:30 a.m., Ms. Sherret heard him gurgle on the baby monitor. She reports that she turned it off and then went to sleep. She notes that this was the first day that Joshua had been “quiet” out there. Ms. Sherret thinks that he might have smothered because there were too many blankets. She also said that there were mould problems in their apartment; and that Joshua had had a diphtheria/tetanus shot 14 days earlier. (emphasis added)

Pre-Sentence Report, Appeal Book, vol. 1, p. 345
Report of Dr. Karen Smith, April 6, 1999, Appeal Book, vol. 1, p. 369(c)

30. In sentencing submissions, the Crown sought a sentence of two years imprisonment, and the defence sought a non-custodial sentence. On June 2, 1999 Mr. Justice Byers sentenced the Appellant to imprisonment for one year followed by two years of probation. In his reasons for sentence, he said:
To this day I do not understand why she did it. There is no doubt that looking after Joshua was very stressful for her; and it would seem that there were warning signs that were there to be seen. But at the end of the day only she knows what she did, and why she did it. And she is not telling.

Instead she denies guilt and shows no remorse. Her support system in the community – her family, her friends – reinforce that position.

Joshua did not die because his mother was suffering from some sort of postpartum depression. His death, perhaps, is connected to the fact that Sherry suffers from what the doctors have called a mixed personality disorder. Or, perhaps not. No doubt, though, her attitude towards this tragedy is connected to that diagnosis.

My function is to sentence the offender for this offence. Rehabilitation has been the focus of my attention. The prognosis, it would seem, is hopeful but guarded. Everyone seems to agree that the chance of her doing such a thing again is minimal. I do not see her as a big risk to the community. And, there is some risk to her, I am told, if I send her to jail.

But I think that her chances to make a change in her life, to understand herself, and to accept her responsibility for what she has done, lie in a combination of forced treatment on the inside, and voluntary treatment, watched over by a probation officer, on the outside.

Finally, I would say this. Who speaks for Joshua? 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 Appellant served her sentence, mostly at the Vanier Prison for Women, and thereafter completed her probationary period without incident.
Submissions on Sentence, Transcript of Trial Proceedings, February 8, 1999, 120/25-30, June 2, 1999, 229/30-230/5
Reasons for Sentence, Transcript of Trial Proceedings, June 2, 1999, 232/15-234/25
Affidavit of the Appellant, November 7, 2009, Fresh Evidence Materials, Tab 1, para. 21

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The post can be found at:

http://smithforensic.blogspot.com/2009/12/exoneration-of-sherry-sherret-part-two.html

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PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at:

http://www.thestar.com/topic/charlessmith

Information on "The Charles Smith Blog Award"- and its nomination process - can be found at:

http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;

Tuesday, August 2, 2011

SHERRY SHERRET RETROSPECTIVE; PART SEVEN: HER "FRESH EVIDENCE" FILING IN THE ONTARIO COURT OF APPEAL: (FIRST OF FOUR SECTIONS);

Monday, August 1, 2011

AMANDA KNOX; INDEPENDENT REPORT STANDS UP TO PROSECUTOR'S ATTACK AT RECENT HEARING; REPORTER BRUCE FISHER; GROUNDREPORT;

"The July 30 hearing was a long day for all involved as Prosecutor Comodi riffled questions at Conti and Vecchiotti doing everything she could to discredit their analysis. At the end of the day, the independent report stood strong, as the actions of Stefanoni are indefensible. There was nothing Comodi could say to hide the fact that Sefanoni’s work did not meet the standards of any civilized nation on earth."

REPORTER BRUCE FISHER; GROUND REPORT; Wikipedia informs us that: "GroundReport is a global news platform that enables anyone to submit original news and opinion for publication to an international audience. With a mission to 'democratize the media,' GroundReport's contributors report from the scene of world events to add local, firsthand insight to international news. To establish trust, GroundReport uses a Wikipedia-like model of volunteer editors and community feedback, combined with a 5-star rating system........."

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"The ongoing nightmare for Amanda Knox and Raffaele Sollecito, in Perugia Italy, will continue to linger on as the prosecution has successfully extended the appeal trial with what seems to be for no other reason than to muddy the water," the GroundReport story by reporter Bruce Fisher published earlier today begins, under the heading, "Amanda Knox: One Step Back, Two Steps Forward to Freedom."

"Knox and Sollecito currently stand convicted of murdering Meredith Kercher in late 2007," the story continues.

"Both have vehemently denied any involvement in the murder and now after nearly 4 years, the court has finally heard from independent experts regarding crucial DNA evidence. The defense request for independent testing was refused by Judge Giancarlo Massei in the first trial. If Massei would have allowed an independent review, Knox and Sollecito would have never been convicted in the first place.

The presiding appeals court judge, Claudio Pratillo Hellmann, appointed forensic experts Stefano Conti and Carla Vecchiotti, from Rome's Sapienza University to review the DNA. Conti and Vecchiotti, appeared in court July 25, unleashing a scathing attack on the prosecution, detailing gross negligence on the part of lead forensic scientist, Patricia Stefanoni, regarding the key DNA evidence used to secure convictions in the first trial. The alleged murder weapon and a DNA laced bra clasp have been fully discredited by Hellmann’s experts leaving absolutely no credible evidence to confirm the convictions of Knox and Sollecito.

The knife said to be the murder weapon was retrieved from Sollecito’s kitchen by police because it looked shiny and well cleaned. Stefanoni claimed to find Kercher’s DNA on the blade (using LCN DNA testing in a non certified lab) and Knox’s DNA on the handle. When Conti and Vecchiotti tested the knife, they found Knox’s DNA on the handle, which was no surprise because Knox used the knife to prepare meals at Sollecito’s, but all they found on the blade was starch. When asked if the knife could have possibly been cleaned to remove all traces of Kercher, but still test positive for starch, Conti and Vecchiotti said no. The knife was not the murder weapon.

The bra clasp was retrieved from the crime scene 46 days after the murder. The police went searching for evidence against Sollecito when they realized that a footprint attributed to him actually belonged to Rudy Guede, the man responsible for the murder of Meredith Kercher. Clinging to the baseless multiple attacker scenario, investigators needed evidence fast, and like magic they found Sollecito’s DNA on a bra clasp that was torn off Kercher’s body. Questions remain unanswered as to why the clasp along with several pieces of clothing worn by Kercher during the attack were not collected in the early days of the investigation.

Crime scene video shows that the clasp originated under Kercher’s body (as seen in video the day the murder was discovered) and over 6 weeks time, during multiple visits from investigators visibly trashing the cottage, it made its way under a dirty rug across the room. When the clasp was finally collected, it was handled by multiple investigators wearing visibly dirty gloves as they handed it back and forth as if they had found a grand prize. The clasp was stored in improper containers by Stefanoni causing the fabric to disintegrate and the hooks to rust to the point that further examination is impossible.

Conti and Vecchiotti not only proved improper collection procedures they also proved that Stefanoni was biased in her analysis of the DNA. The method she used centers in on a specific suspect, a practice that is forbidden by all international standards due to the fact that it leads to biased analysis. Samples are to be analyzed individually and then the final results are compared to see if any produce a positive match. If one begins knowing what they are looking for already, they are likely to interpret the electropherogram to match the result they are trying to achieve. When the data was properly analyzed by Conti and Vecchiotti they discovered that Sollecito’s DNA could not be confirmed leaving them to conclude that the bra clasp is unreliable evidence.

After hearing the testimony given by Conti and Vecchiotti, Judge Hellmann moved to bring the trial to a swift close. He would allow the prosecution to question Conti and Vecchiotti on July 30, with no additional witnesses to be heard from either side. He also planned on cutting the summer break short so that closing arguments could begin on August 27.

The July 30 hearing was a long day for all involved as Prosecutor Comodi riffled questions at Conti and Vecchiotti doing everything she could to discredit their analysis. At the end of the day, the independent report stood strong, as the actions of Stefanoni are indefensible. There was nothing Comodi could say to hide the fact that Sefanoni’s work did not meet the standards of any civilized nation on earth.

Comodi gained no ground with her questioning but had one more trick up her sleeve. One of Stefanoni’s many egregious errors was her failure to conduct negative control tests to rule out contamination. Comodi would shock the court by boldly presenting documentation showing that Stefanoni did run those tests after all! Conti and Vecchiotti were wrong! Only one problem, Comodi presented the court with what appeared to be fraudulent documents. The pages were poor quality photo copies with codes that did not match the machine used to conduct the tests. When confronted, Comodi claimed that the defense must have mis-located the files during the first trial. The court took a 30 minute recess to try and locate any original documents which turned out to be nonexistent. Comodi’s ploy backfired on the prosecution, irritating the judge, and once again highlighted the fact that they will stop at nothing to keep two innocent people in prison.

Before the July 25 hearing began, it appeared that everything was set for closing arguments to begin August 27. That would change at the beginning of the hearing when the prosecution addressed the court asking for further witness testimony. Civil attorney Francesco Maresca stood up in court shouting out numerous law codes that sent the discussion into the judge's chambers. When the issues were resolved, the prosecution’s request was granted and the next court hearing had been moved to September 5. I am told that Hellmann was not happy with the extended timeframe but was bound by law to allow the additional questioning.

Any and all additional hearings before closing arguments begin will be a complete waste of time. Judge Hellmann’s own experts have discredited the evidence. Putting additional prosecution or defense experts on the stand is pointless and the only benefit for the prosecution is to attempt to cloud reality.

Knox and Sollecito have endured almost 4 years in prison for a crime they did not commit and now they will have to wait a little bit longer due to posturing by those hell bent on destroying their lives. When the prosecution is finished with their theatrics Judge Hellmann will be obligated by Italian law to fully exonerate Amanda Knox and Raffaelle Sollecito as he cannot confirm convictions without evidence. The nightmare will finally end."

The story can be found at:

http://www.groundreport.com/Business/Amanda-Knox-One-Step-Back-Two-Steps-Forward-to-Fre/2940537

PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at:

http://www.thestar.com/topic/charlessmith

Information on "The Charles Smith Blog Award"- and its nomination process - can be found at:

http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;

SHERRY SHERRET RETROSPECTIVE; PART SIX; U.S. COMMENTATOR JOHNATHAN TURLEY SAYS CANADA HAS A CASE "EVERYONE SHOULD READ."

"THE COSTS OF PROSECUTORIAL ABUSE OR INVALID CONVICTIONS ARE RARELY EXPLORED IN DEPTH BY THE MEDIA (HERE). CANADA HAS ONE CASE THAT EVERYONE SHOULD READ. AS WITH SOME RECENT SCANDALS INVOLVING INCOMPETENT FORENSIC PROSECUTION EXPERTS IN THE UNITED STATES, CANADA IS DEALING WITH THE LEGACY OF DISGRACED FORENSIC PATHOLOGIST CHARLES SMITH, WHO SENT PEOPLE TO JAIL WITH FLAWED SCIENCE AND FALSE CONCLUSIONS. HOWEVER, FEW ARE SO UNSETTLING AS WHAT HAPPENED TO SHERRY SHERRET-ROBINSON, 34."

JONATHAN TURLEY: RES IPSE LOQUITOR; THE CHARLES SMITH BLOG; DECEMBER 15, 2009;

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PUBLISHER'S NOTE: I recently reported that Sherry Sherret has received a $450,000 settlement for the nightmare she was put through by by the former Doctor Charles Smith, the police, prosecutors and the Court - and I indicated that I find the settlement grossly inadequate. To help our readers make up their own minds I am running a retrospective of posts previously published on this Blog on Sherry Sherret's case. Our readers are invited to send their comments on the settlement to me at: hlevy15@gmail.com for possible inclusion on the site.

HAROLD LEVY; PUBLISHER; THE CHARLES SMITH BLOG.

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DECEMBER 15, 2009:

"The costs of prosecutorial abuse or invalid convictions are rarely explored in depth by the media (here)," Turley's column begins, under the heading "Oh Canada: Disgraced Pathologist’s Report Led to Woman Losing Son in 1996 Wrongful Conviction."

"Canada has one case that everyone should read," it continues.

"As with some recent scandals involving incompetent forensic prosecution experts in the United States, Canada is dealing with the legacy of disgraced forensic pathologist Charles Smith, who sent people to jail with flawed science and false conclusions. However, few are so unsettling as what happened to Sherry Sherret-Robinson, 34.

Faced with Smith’s evidence, Sherret-Robinson’s lawyer struck a deal with the Crown in which she would plead not guilty to the lesser charge of infanticide but agreed to present no evidence in her defense. She was given one year in jail and ultimately forced to give up her other boy for adoption.

Sherret-Robinson’s baby boy died in a tragically familiar accident. She left him in a crib with heavy blankets and he smothered to death in 1996. Prosecutors decided to charge her and called on Smith to prove the case. He testified that the boy showed a fracture on his skull and was intentionally smothered. A later panel found the case was a classic example of Smith’s shoddy work. There was no fracture on Joshua’s skull — there was none — and the hemorrhaging on the neck noted by Smith was from his own actions in the autopsy.

Ontario’s highest court ruled that she had been wrongly convicted. It is a bit late. She was forced to agree to give up her other son, who has been raised by a different family. Rather than traumatize him further, she has only a small request that someone tell her son the truth and that she never wanted to give him up for adoption.

Justice Marc Rosenberg concluded that “[t]he appellant’s conviction was wrong and she was the victim of a miscarriage of justice” and “profoundly regrettable.”"

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The post can be found at:

http://smithforensic.blogspot.com/2009/12/sherry-sherret-case-more-critical.html

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PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at:

http://www.thestar.com/topic/charlessmith

Information on "The Charles Smith Blog Award"- and its nomination process - can be found at:

http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;

the charles smith blog

Thursday, August 4, 2011

SHERRY SHERRET RETROSPECTIVE: PART NINE; HER 'FRESH EVIDENCE" FILING IN THE ONTARIO COURT OF APPEAL; THIRD OF FOUR SECTIONS;

Wednesday, August 3, 2011

CAROLYN BELLAMY; RECEIVES 18-MONTHS ON LESSER OFFENCE IN DEATH OF GRANDDAUGHTER IN "SHAKEN-BABY" CASE; GRESHEM OUTLOOK;

SHERRY SHERRET RETROSPECTIVE: PART EIGHT. HER "FRESH EVIDENCE" FILING IN THE ONTARIO COURT OF APPEAL; SECOND OF FOUR SECTIONS.

Tuesday, August 2, 2011

SHERRY SHERRET RETROSPECTIVE; PART SEVEN: HER "FRESH EVIDENCE" FILING IN THE ONTARIO COURT OF APPEAL: (FIRST OF FOUR SECTIONS);

Monday, August 1, 2011

AMANDA KNOX; INDEPENDENT REPORT STANDS UP TO PROSECUTOR'S ATTACK AT RECENT HEARING; REPORTER BRUCE FISHER; GROUNDREPORT;

SHERRY SHERRET RETROSPECTIVE; PART SIX; U.S. COMMENTATOR JOHNATHAN TURLEY SAYS CANADA HAS A CASE "EVERYONE SHOULD READ."

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