Top Court Quashes Mom’s Conviction In Son’s Death
Posted February 10, 2011 6:29 am.
This article is more than 5 years old.
Tammy Marquardt tenderly hugged her five-month-old daughter on Thursday, minutes after Ontario’s top court granted her a new trial in the death of her toddler 17 years ago.
Then, stepping into the sunshine, Marquardt said it was “torture” being labelled a child killer on the strength of expert evidence from now-disgraced pathologist Charles Smith.
“Try having your heart ripped out and someone squeezing it right in front of your face,” Marquardt said.
“Finally, the nightmare is coming to an end and I’m waking up.”
It took the Ontario Court of Appeal just five minutes to conclude the 38-year-old mother had been the victim of a miscarriage of justice and quash her second-degree murder conviction.
In doing so, Justice Marc Rosenberg said the court recognized that Marquardt had been through a “terrible” ordeal.
“There are no real words for it. It’s just a lot of pain and hurt that cannot be fixed,” Marquardt said later.
She said she was looking forward to getting on with a life that includes her baby Tiffany and possibly the two sons authorities seized after she was charged in 1993.
The mother from Oshawa, Ont., spent 14 years behind bars after she was convicted in 1995 of killing her son, two-year-old Kenneth Wynne.
The Crown called her an impoverished, struggling young mother who killed her son in a moment of frustration.
Smith, who was stripped of his medical licence last week for professional misconduct and incompetence, testified persuasively that Kenneth was strangled or suffocated.
“It was very much a case of her against the pathology,” her lawyer, James Lockyer, told the court in reference to Smith’s then-stellar reputation as an expert child forensic pathologist.
Other experts have since denounced Smith’s findings, and concluded Kenneth’s cause of death could not be determined, court heard.
Marquardt shed tears and trembled slightly as Lockyer read a transcript of the 911 distress call she made after finding an all but lifeless Kenneth tangled in his bedsheets.
Lockyer told the court that Kenneth was epileptic, and could have died from a seizure.
In her brief submissions, Crown lawyer Gillian Roberts agreed the conviction should be quashed because Smith made “a number of mistakes.”
His errors effectively precluded the jury from considering the possibility that Kenneth had died of “sudden unexplained death in epilepsy,” she said.
At the same time, Roberts said ordering a new trial rather than entering an acquittal was appropriate because other evidence — motive, opportunity and what she called a “confession” — could reasonably support a conviction.
Nevertheless, it appeared unlikely Marquardt will in fact face a new trial.
In half-a-dozen similar cases involving Smith, the prosecution stayed or dropped the charges, or called no evidence at trial, leading effectively to an acquittal.
Also Thursday, the Appeal Court released its written reasons for recently acquitting a father who pleaded guilty to criminal negligence in the 1992 death of his five-week-old baby, also based on Smith’s evidence.
Essentially the court found that Smith’s opinion — that Dinesh Kumar, 44, had shaken his baby to death — was valid based on medical knowledge of the day.
“The opinion given by Dr. Smith in 1992 was one that would have been supported by many other experts,” the court wrote.
“There is no circumstantial evidence to support a finding that the appellant was responsible for his child’s death and the medical evidence is inconclusive.”
Marquardt, who was freed on bail two years ago pending the appeal, said she felt confident even though the court did not exonerate her.
“The truth has come to the surface,” she said.
Marquardt said she did not blame people for believing Smith, the “so-called expert God.”
William Mullins-Johnson, another victim of Smith’s errors, sat with Marquardt in the courtroom and kept a hand on her shoulder as she faced reporters outside.
Smith has not been punished enough for the devastation he caused, Mullins-Johnson said.
