TORONTO - Lawyers for two parents convicted in what's been called one of the worst cases of child abuse in Canadian history say they have fresh evidence in an 11-year-old case that "strongly undermines" a conclusion of second-degree murder.
When seven-year-old Randal Dooley died in September 1998 an autopsy on his emaciated, 40-pound body found a tapestry of scars and bruises, 13 broken ribs, a lacerated liver and a tooth in his stomach.
His father, Tony Dooley, and stepmother, Marcia Dooley, were convicted in 2002 of second-degree murder. They are each appealing their convictions and asking Ontario's Court of Appeal for new trials. Marcia Dooley is appealing her sentence as well.
The pair was sentenced to life in prison. Parole eligibility for Marcia Dooley, who was characterized at trial as the primary abuser, was set at 18 years. Tony Dooley was to be eligible for parole after 13 years.
Two experts who testified at trial - Dr. Robin Humphreys and the now discredited Dr. Charles Smith - concluded Randal died of a recent subdural hematoma likely caused by "violent" shaking, blunt impact, or a combination.
Lawyers for both the Dooleys have filed a fresh evidence application, and are expected to present it orally Tuesday. Neuropathologist Dr. David Ramsay has examined Randal's case and made several conclusions, the document says.
Ramsay concluded the injury may not have been fatal, there is no reliable data on how much force is required to cause that injury, there are reasons to be skeptical of the shaking conclusion and a fall from a bunk bed could have been fatal. That was an explanation the Dooleys put forward for how Randal died.
"The cumulative effect of these opinions strongly undermines both the conclusion that the principal offender who assaulted Randal had the requisite intent for second-degree murder and that Tony Dooley was the principal offender," the defence's court filings say.
Marcia Dooley was portrayed at trial as the primary abuser but Smith had concluded the shaking was probably done by a man.
It has been seven years since the convictions, an abnormal delay blamed on court personnel issues. A court reporter had a nervous breakdown and stopped producing transcripts, which are needed when filing appeals, lawyer Clayton Ruby said.
Marcia Dooley's lawyer, Marie Henein, and Tony Dooley's lawyer, Ruby - both very high-profile defence counsel - each put forward several grounds for appeal, which largely focused on the judge's charge to the jury.
Ontario Superior Court Justice Eugene Ewaschuk did not give the jurors enough guidance on how to properly consider evidence of prior abuse, Henein said.
"They can be forgiven for thinking, 'These are bad people. They should be punished and who cares?"' Henein said. "They were left largely at sea."
Tony Dooley should get a new trial because the emotional language used by the judge was inflammatory and swayed jurors, Ruby argued.
"This was a tragic and highly emotional case that was widely publicized up to and throughout the trial," Ruby told the Appeal Court.
"The opportunities for hatred and disgust at these two black accused persons in the public mind were numerous."
Characterizations made by Ewaschuk at trial, including the repeated use of the phrase "poor, pitiful Randal," undermined the jury's ability to assess the case in a "dispassionate framework," Ruby said.
Ruby also told the court the trial judge's charge to the jury on the question of aiding and abetting was "confusing and inadequate."
Evidence "strongly suggests" Tony Dooley was not present at the time of the fatal blow, Ruby said. He said he couldn't find any other case in which a person found to have aided and abetted through inaction was convicted without being present at the time of the offence.
"If I am right in that, there should be an acquittal," Ruby said. Henein also took issue with statements Marcia Dooley allegedly made to her sister, who then told two others. Her sister didn't testify to them but the two other people said at trial that Marcia Dooley had said she broke Randal's arm by putting her foot in his back and wrenching it, she made him eat his vomit and threw him into a door.
Marcia Dooley is also appealing her sentence because of the disparity between the couple's parole eligibility lengths.
The court is scheduled to hear arguments on the appeal through Thursday.