Testimony by disgraced pathologist Charles Smith at a 1998 murder trial was inept, hyperbolic and prodded a jury into wrongly convicting a father of intentionally killing his son, according to two of the country's top pathologists.
As a result, the Crown now concedes that Marco Trotta's conviction for second-degree murder cannot stand in light of the fresh evidence.
"The respondent acknowledges that the fresh evidence is credible and bears upon a potentially decisive issue," prosecutor Lucy Cecchetto said in a brief filed with the Supreme Court of Canada, where an appeal of the convictions of Mr. Trotta and of his wife Anisa will be heard next month.
The Crown will ask the court to uphold Mr. Trotta's convictions for manslaughter, aggravated assault and assault causing bodily harm, as well as Ms. Trotta's convictions for criminal negligence causing death and failing to provide the necessities of life.
In her brief, Ms. Cecchetto insisted that there is ample evidence to show that Mr. Trotta inflicted repeated blows on Paolo - breaking or fracturing bones, and leaving prominent bruises and bite marks - while Ms. Trotta stood silently by and acquiesced to the abuse.
Ms. Trotta has already served her five-year sentence. Mr. Trotta, who received a 15-year sentence, was released on bail last spring after serious doubts arose in connection with 20 cases in which Dr. Smith played an instrumental role.
The fresh revelations are contained in affidavits and statements made by Ontario's Chief Forensic Pathologist, Michael Pollanen, and Newfoundland's Chief Medical Officer, Simon Avis.
Dr. Smith's trial testimony is described as "mind-boggling," "irresponsible" and "false."
The pathologists say it is not possible for any forensic pathologist to make a reliable link between various injuries that eight-month-old Paolo suffered and his death on May 29, 1993.
"I cannot see how anyone - particularly anyone with the status that Dr. Smith enjoyed at that time - could possibly reach that conclusion," Dr. Avis said.
"I still, to this day, stand in wonder."
Dr. Avis concluded that there "was certainly no evidence at autopsy to indicate any recent trauma or any trauma that could, in any way, shape or form, cause or contribute to his death. ... The jury heard contradictory, misleading and inaccurate pathological evidence under the guise of Dr. Smith's expertise."
Coming on the eve of a public inquiry into Dr. Smith's work, the evidence bears witness to profound shortcomings in the way autopsies and suspicious infant death investigations take place.
The documents reveal that Paolo's original autopsy was botched by pathologist David Chan, who failed to find evidence of suspicious injuries and concluded that Paolo's cause of death was sudden infant death syndrome.
A year afterward, the Trotta's newborn child - Marco Jr. - was admitted to a hospital in Kingston suffering from a fractured femur and multiple bruises.
Dr. Smith ordered an exhumation of Paolo's remains and found multiple signs of abuse.
In an attempt to win a new trial for their clients, defence lawyers James Lockyer and Michael Lomer approached Dr. Avis and Dr. Pollanen two years ago to have them review Dr. Smith's work.
Dr. Avis said it is inexplicable that Dr. Smith could have mistaken an old, partly healed skull fracture for an injury Paolo might have sustained as recently as 10 minutes before he was found dead in his crib. He said that even a layman could scarcely have made such a basic mistake.
"To examine Paolo Trotta's skull - to see the fracture and to opine that that fracture is from minutes to, at most, two days old - simply boggles my mind," Dr. Avis said.
Dr. Pollanen said that Dr. Smith jumped to erroneous conclusions and engaged in baseless speculation.
"The overall analysis ... in my view, would be that there is no factual foundation in the medical evidence to conclude that head injury or an asphyxial event - such as pressure on the neck, suffocation, smothering - was the cause of death," he said.
Mr. Lockyer and Mr. Lomer state in a legal brief that Dr. Smith "misdiagnosed through over-interpretation of findings at the exhumation, and his evidence was grossly imbalanced. Almost all of his interpretations of Paolo's injuries were erroneous."
The brief is highly critical of the fact that while Dr. Smith's autopsy report listed Paolo's cause of death as "undetermined," he then painted an emotive picture for the jury of two main possibilities that could explain Paolo's death. "One is that he died of a head injury, presumably on a non-accidental basis," Dr. Smith testified.
"And the second is that he died of an asphyxial event."
Until someone comes along with another credible explanation, Dr. Smith told the jury, "I have to regard Paolo's death as being non-accidental in nature."
Dr. Pollanen said this type of testimony is improper in a criminal trial.