ONTARIO: New trial for Tammy Marquardt, imprisoned on baby boy’s death

Kirk Makin : Jan. 31, 2011

A Toronto woman who spent 14 years in prison for killing her baby boy will have her conviction quashed and get a new trial.
In a legal brief unsealed this morning by the Ontario Court of Appeal, the Crown conceded that problems with forensic evidence raise serious doubts about whether Tammy Marquardt was properly convicted.

The charges against Ms. Marquardt will likely be formally dropped on Feb. 10, when she has a scheduled court date.
The case was one of the most dramatic and far-reaching tragedies to arise from the work of a now-discredited forensic pathologist, Dr. Charles Smith.
In an oddity of timing, the court unsealed the documents at virtually the same moment that a disciplinary hearing against Dr. Smith commenced at the Ontario College of Physicians and Surgeons.
The hearing could result in him losing his license to practice; a measure that could have little meaning, since Dr. Smith has reportedly not attempted to renew his license since 2008.
Ms. Marquardt's two-year-old son, Kenneth, died on Oct. 9, 1993, shortly after Ms. Marquardt called 911 in a panic to report that she had emerged from the shower to find the child, who had a history of epileptic seizures, tangled in his bedclothes, struggling for breath and calling, “Mommy.”
Based largely on testimony from Dr. Smith, Ms. Marquardt's conviction was thrown into doubt after an independent review found that the onetime god of pediatric forensic pathology had made errors leading to wrongful conviction in numerous cases of parents accused of killing their children.
“This appeal is all about forensic pathology,” Ms. Roberts said in her legal brief. “The case itself is not. Forensic pathology can tell us nothing about how or why Kenneth Wynne died.”
Ms Roberts said that the “fatal flaw” in Ms. Marquardt's trial came when Dr. Smith testified that science could reliably point toward the death being a homicide.
“This error is significant because Dr. Smith’s evidence that the autopsy showed that Kenneth died of asphyxia bolstered the Crown’s theory that the appellant suffocated Kenneth in a fit of frustration and anger....
“The respondent (Crown) concedes that these errors, considered cumulatively, could have affected the verdict and joins the appellant in requesting that this Court set aside the conviction and order a new trial.”
Ms. Marquardt, 38, has been free on bail since Ms. Roberts consented last year to her release pending a rehearing of the case.
Freed for the first time in 14 years, Ms. Marquardt had been overwhelmed to the point of tears: “I'm out. I made it. It's totally amazing. I'm in a bit of shock.”
Her appeals exhausted, abandoned by her family and branded a baby-killer, Ms. Marquardt's only hope had rested on the work of her lawyers at the Association in Defence of the Wrongly Convicted.
In an interview prior to her release from prison, Ms. Marquardt faulted the Office of the Chief Coroner or Ontario, which employed Dr. Smith, for her ordeal.
“I just hope and pray that the system changes,” she said.
Ms. Marquardt said that she longs to have contact with her two other sons, who were born around the time of her conviction and seized by child-welfare authorities to be placed in foster homes.
“I just hope that one day they know what happened,” she said. “I'd like them to know that I would like to have contact with them, but I don't want them feeling obligated. It's got to be their choice.
“I'll be there for them,” she said. “When they are ready, they'll find me ... I don't know if they even know who I am. I can only keep praying that they do.”
Under a bail plan that was approved by Madam Justice Kathryn Feldman, Ms. Marquardt has been living in a Toronto halfway house.
http://www.theglobeandmail.com/news/national/toronto/new-trial-for-tammy-marquardt-imprisoned-on-baby-boys-death/article1888753/