January 20, 2010
The Ontario Court of Appeal has squashed the conviction of a “quiet, unassuming” 44-year-old Toronto man who always maintained he did nothing to harm his 5-week-old son.
“We can now say the conviction in your case was unreasonable,” Justice Marc Rosenberg told Dinesh Kumar this morning.
A panel of forensic experts from North America and England have concluded Dinesh Kumar’s son, Gaurov, likely died of natural causes resulting from a birth injury.
But back in 1992, Dr. Charles Smith, Canada’s once-vaunted pediatric forensic pathologist, who conducted an autopsy on Gaurov, concluded the child had been shaken to death.
Kumar was charged with second-degree murder.
Six months after being charged, Kumar was offered a deal by prosecutors that would give him a 90-day jail sentence in exchange for pleading guilty to criminal negligence causing death.
His sentence could be served on weekends.
Kumar took the deal.
Now 44, he recalls in an affidavit filed with the court that his defence lawyer at the time had described Smith as “like a God” and said there was very little chance of challenging his conclusions.
But by 2008, Smith’s reputation was in tatters, as were his findings in Kumar’s case and many others.
A review of 45 of Smith’s cases by Ontario’s coroner’s office found he made mistakes in at least 20 involving the deaths of children.
At least 13 cases are believed to have resulted in wrongful convictions.
His testimony in many instances resulted in parents being falsely accused of murder and having their other children placed in the custody of children’s aid societies.
Meanwhile, two years ago, the Ontario government launched a review of nearly 150 cases dating back to 1986, in which the deaths of children had been attributed to “shaken-baby syndrome.”
Kumar’s is the first of those to come before the Court of Appeal.
In materials filed with the court, James Lockyer, a lawyer representing Kumar through the Association in Defence of the Wrongly Convicted, says that while the syndrome was in vogue 20 years ago as an explanation for sudden child deaths, biomechanical engineering has challenged the underlying science.
Engineering experiments in 2005 showed that shaking a baby to death is unlikely unless the spine is severely injured.
At least five cases in England and the United States have been reopened because of concerns about the science behind the syndrome.
Dr. Helen Whitwell, a British forensic pathologist and neuropathologist who reviewed Kumar’s case in 2006 concluded that if the case had originated in England, it likely would have been referred to that country’s Court of Appeal as a potential miscarriage of justice.
Crown counsel Gillian Roberts conceded Kumar’s conviction should be set aside.
In court documents, she acknowledged there is “compelling fresh evidence which now shows that no reasonable jury could convict the appellant of any form of homicide in relation to his son Gaurov.”
The Crown, however, did not agree the evidence goes any further and shows that Kumar is “factually innocent” or that “the entire concept” of shaken baby syndrome should be rejected.
But Lockyer said it is extremely important to Kumar that he not be left under a cloud.
Lockyer asked the court “to say whatever it considers appropriate to help clear his name.”
Kumar and his wife, Veena, decided not to have more children for fear of what might happen when they were born.
Their eldest son, Saurob, now 19, was placed in foster care for more than a year after his father was charged and Kumar could have no contact with him, except in the presence of a CAS supervisor.
Kumar was also too afraid to apply for Canadian citizenship, worried that his criminal conviction could open the door to more problems.
If cleared of killing his son, he will finally be able to start live “all over again,” Kumar tells the court in his affidavit.
“I did nothing wrong to Gaurov. My wife and Saurob know this but some members of my religious community still avoid me.”
“I go to my temple and am sometimes made to feel ashamed because people point at me and talk about me behind my back as the person who killed his own baby.”
“I say to myself I did nothing wrong, but this only helps a little.”
“I want my name to be cleared.”