TORONTO - An Ontario woman convicted of killing her four-month-old son after a now-disgraced pathologist concluded the child's death was suspicious should be acquitted of infanticide, both the Crown and defence say in new court filings.
Sherry Sherret-Robinson was found guilty in 1999 of killing her infant son Joshua due in part to evidence from Dr. Charles Smith, whose opinion at the time carried much weight.
Since then his findings in dozens of cases have been called into question or discredited. A report on pediatric forensic pathology from Justice Stephen Goudge last year found the failings of the "arrogant" Smith, once considered the dean of his profession, and his bosses were at the heart of several miscarriages of justice.
Though Sherret-Robinson had initially pleaded not guilty to infanticide, the Crown and her lawyer drafted an agreed statement of facts that said she smothered Joshua, causing his death, and she was found guilty in a Belleville, Ont., court.
Her trial lawyer writes in an affidavit that had he known then what he knows now about Smith he would have told Sherret-Robinson to vigorously fight the charge.
Sherret-Robinson takes her bid to clear her name before the Ontario Court of Appeal on Dec. 7, and a factum filed with the court shows the Crown will recommend an acquittal.
New expert evidence "conclusively refutes critical aspects of Dr. Smith's opinion" and Sherret-Robinson's conviction should be quashed and an acquittal entered in its place, the Crown says in the documents.
Dr. Michael Pollanen, Ontario's chief forensic pathologist, re-autopsied Joshua's body in 2006 and concluded there is no definitive cause of death.
Smith determined asphyxia was the cause of death. His opinion that Joshua's death was suspicious was due in part to his findings of a skull fracture and neck hemorrhages, but both of those findings have since been refuted by Pollanen and other experts who reviewed the case.
There was no skull fracture, the experts found, and the neck hemorrhages were in fact caused by Smith during the autopsy, Pollanen wrote.
The experts concluded there is no basis in the pathology to support Smith's inference the baby was deliberately smothered or suffocated, but that it can't be ruled out.
Instead, Pollanen suggested, the autopsy findings and the fact that Joshua had numerous layers of blankets under, around and on top of him, "reasonably support the conclusion that death occurred by an accidental asphyxial means in an unsafe sleeping environment."
In an affidavit filed with the court Sherret-Robinson says she has always wondered if she put too many blankets around Joshua that night and now will have to live with the knowledge that probably led to his death.
"I will never forget the terror I felt when I reached down to pick him up and discovered that he was blue and his little body was completely stiff," she writes.
After the police arrived, the next thing she remembers is sitting in the emergency room, hugging a picture of Joshua and sobbing.
"Eventually the doctors came and told me he had died, and let me hold him to say goodbye," Sherret-Robinson writes.
"I sang him a lullaby and refused to let go of him. Even to this day I cannot get that image out of my head."
Goudge referred to Sherret-Robinson's case in his report, saying Smith "inappropriately" formed his opinion using matters outside the pathology, such as statements Sherret-Robinson had made one month before the death that she was depressed and was going to smother her baby.