The Ontario Crown is seeking to undo the 1992 conviction of a Toronto man who allegedly shook his baby to death because of growing doubts about medical science underlying the case.
The decision ends a 19-year ordeal for Dinesh Kumar that began when he pleaded guilty to criminal negligence causing death in the belief that he could not counteract the damning testimony of a leading forensic pathologist, Dr. Charles Smith.
In a submission unsealed Friday morning by the Ontario Court of Appeal, Crown counsel Gillian Roberts said that, while it will never be known whether Mr. Kumar is genuinely innocent in the death, his legal culpability has come into serious doubt.
“In short, the justice system has worked exactly as it should in this case,” Ms. Roberts said. “It accepted a valid guilty plea in a case based on valid current medical knowledge. It has now acted to respond when the prevailing understanding of that medical knowledge has changed and the appellant has explained his guilty plea.”
A lawyer for Mr. Kumar, James Lockyer, received permission from the Court of Appeal last year to reopen the case after Dr. Smith’s credibility was severely tainted by the exposure of a series of botched autopsies in suspicious baby deaths.
The Kumar case was among 20 cases Mr. Justice Stephen Goudge scrutinized recently at an inquiry into errors Dr. Smith made during his two-decade reign as Ontario's top forensic pathologist.
Mr. Kumar told the Globe and Mail at the time that his guilty plea in the death of his son, Gaurov, was the act of a desperate man who was terrified of spending his life behind bars.
“I want to show people that I didn't do anything to my son,” Mr. Kumar said. “This is always on my mind. I came to this country for its good opportunities – and then, this happened to me. I have felt a great sadness inside. Almost every night, I have been crying. It changed my life totally.”
Mr. Kumar, 43, insisted that he pleaded guilty only because he was advised that Dr. Smith’s credibility would certainly trump his own account of events.
“My lawyers told me that whatever he said, the court would make their decision because of it,” Mr. Kumar said. “My lawyer told me that Dr. Smith was like a god in court. The whole thing was up to him.”
The Crown offer that induced Mr. Kumar to plead guilty was extraordinarily lenient. He received 90 days in jail for criminal negligence causing death – a far cry from the term of life imprisonment he faced.
Mr. Lockyer and Alison Craig, lawyers for the Association in Defence of the Wrongly Convicted, maintained that Dr. Smith's theory – that baby Gaurov was a victim of shaken-baby syndrome – was scientifically unsustainable.
“Some medical experts have gone so far as to suggest that the condition of shaken baby syndrome is a medical myth,” the lawyers maintained in a brief to the court.
Ms. Roberts said that this is currently impossible to know.
“This case is not like other Dr. Smith case where significant mistakes were made,” she said in her submission to the court. “To the contrary, the medical evidence on which the case was based in 1992 reflected the prevailing views of the day.”
“In 2010, evidence has evolved so that what was viewed as diagnostic in 1992 is now viewed only as strongly suspicious, and we can no longer say why baby Gaurov died.”
Mr. Kumar had emigrated from India two years prior to the death of his baby. He married, and Gaurov was born shortly afterward.
Just five weeks later, Gaurov screamed in his sleep one night. Mr. Kumar said he rushed over to the child's crib to find him gasping and bluish. Doctors determined later that night that Gaurov was brain-dead. A day later, on March 20, 1992, he was removed from life support.
There was little time for Mr. Kumar and his wife, Veena, to mourn. Based on Dr. Smith's autopsy conclusions, police quickly homed in on Mr. Kumar as a killer. On June 26, 1992, he was arrested.
Mr. Kumar said that after their ordeal he and his wife decided not to have any more children, for fear they might lose them. “We were completely devastated and dejected,” Mr. Kumar said in his affidavit to the court. “I carry a photograph of Gaurov everywhere I go. We cry for him. I think of him every day.
“I love him, cared for him, and would never have done anything to hurt him. I did not, as was claimed, shake him at all. I was a gentle, careful, loving father to him at all times without exception.”
Mr. Lockyer and Ms. Craig stated that Dr. Smith ought to have realized that shaken baby syndrome was not even a legitimate diagnosis at the time, since one of three indicators that must be present for such a diagnosis – retinal hemorrhages – was absent.
They said that bleeding in Gaurov's brain lining at his autopsy could have been the result of a birth injury that reopened and bled again.
The criminals in the matter was not just "Smith" but the Judge, the crown and
any and everyone else who was in the court as an officer of the court who KNEW
what was going down.
As usual, it appears all the above have at best , challenged personalities, a lack of cojonnes, the sort of individuals who unfortunately, never had mental health screening prior to their anointment.
Good competent judges don't accept plea bargains at face value. Its why
parliament should trust criminal judges more when it comes to sentencing, allow
judges to use what is called Judicial Discretion.
This case begs the question as to if the judge in this case was even awake when he approved the Crown's offer of 90 days for " criminal negligence causing death"
One can bet that every lawyer in the courtroom knew something bad was going down and its not just the judge who had a fiduciary responsibility and a legal responsibility.
The person who needs to be dammed here is the Crown Prosecutor who made this offer and accepted it and presented it to the court because its very obvious, he knew there was a problem with the evidence and failed to share that with the court or the defense or the accused before they forced him to take what appeared to be no other option.
These sorts of injustices unfortunately happen every day and every day, another Judge , another Crown goes home and sleeps like just like psychopath does after they commit a brutal crime.
"Its enough to make you want to puke"
Unfortunately, its not just Dr. Smith who destroys lives.
In many professions, including the medical and legal, there is a never ending supply of professionals who are entrusted by society and fail their responsibilities to society by knowingly providing fabricated evidence to the court as "evidence".
Often these experts are ALL the names contained on lists of experts to be used in court cases, Often if you look their reports based over a decade or more, you see how in many cases, even the Children's Aid Society learned of the real evidence and took children into care and gave them to the other parent exactly reversing what a Family Court Judge did years earlier with the help of "mercenary for hire experts".