Hours before the launch of a medical competency hearing for error-prone pathologist Charles Smith, a woman who served 14 years behind bars on the basis of his botched testimony has learned that her murder conviction will be overturned.
In a court document unsealed on Monday, the Crown conceded that Dr. Smith’s testimony may have caused Tammy Marquardt, 39, to be wrongly convicted in the 1993 death of her child.
“It seems like I’m finally coming to the end of a really bad nightmare,” said Ms. Marquardt. “I’m just looking forward to having it over with. I try not to look back to my time in prison, but it’s hard.”
Prosecutor Gillian Roberts conceded that Dr. Smith’s errors were “significant” and that his stature at the time as one of the foremost experts in his field made it impossible for the defence to argue successfully that Ms. Marquardt’s two-year-old son, Kenneth, had died of an epileptic seizure.
In an oddity of timing, the Crown’s decision came a day before College of Physicians and Surgeons of Ontario is to launch a disciplinary hearing for Dr. Smith, a high-flying forensic pathologist who crashed to Earth after mistakes were discovered in the cases of 20 baby deaths for which he had conducted autopsies.
Most of the parents and caregivers his testimony helped convict of murder, manslaughter or criminal negligence have been exonerated in the past couple of years. Ms. Marquardt’s case was one of the most dramatic and far-reaching of the slew of tragedies.
Kenneth died on Oct. 9, 1993, shortly after Ms. Marquardt called 911 in a panic. She reported having 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.”
After conducting an autopsy, Dr. Smith testified that Kenneth had apparently asphyxiated. He said that he could find no evidence that could persuasively prove that the child died of natural causes.
After her conviction, Ms. Marquardt quietly served a decade in prison before Dr. Smith’s reputation began to crumble. A lawyer for the Association in Defence of the Wrongly Convicted, James Lockyer, went to the Supreme Court of Canada to ask for permission to reopen her case.
In another legal brief unsealed on Monday, Mr. Lockyer said that Kenneth’s history of epilepsy should have been more than enough to cast serious doubt on the Crown’s theory of murder.
“The appellant was a victim of a miscarriage of justice,” he said. “Dr. Smith played a vital role in her trial and presented evidence that convinced the jury that Kenneth was a homicide victim, through smothering or strangulation.”
Whether the Crown seriously intends to proceed with the charges against Ms. Marquardt will become known on Feb. 10, when she has a scheduled court date.
Mr. Marquardt, who lives with her fiancé and his mother, expressed confidence that her ordeal is over: “I think it will end when it gets back to court.”
However, Ms. Roberts argued in her brief that, notwithstanding Dr. Smith’s errors, there may yet be sufficient evidence for a jury to conclude that Ms. Marquardt is guilty. Only a new trial can provide a suitable conclusion to the case, she said.
“This appeal is all about forensic pathology,” Ms. Roberts stated in the Crown brief. “The case itself is not. Forensic pathology can tell us nothing about how or why Kenneth died.”
She 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 bolstered a developing Crown theory that Ms. Marquardt was an unfit mother who had suffocated Kenneth in a fit of frustration and anger, Ms. Roberts said.
Ms. Marquardt said that her next challenge will be to re-establish contact with two sons who were seized by child-welfare authorities and placed in foster homes after she was charged with killing Kenneth.
“I still have no clue where they are,” said Ms. Marquardt, who recently gave birth to a daughter, Tiffany. “It’s very hard. I want my boys to know where I am and let them have the choice to see me or not. I can’t see why I shouldn’t be able to.”
Dr. Smith’s disciplinary hearing could result in him losing his license to practice. However, the measure may have only symbolic meaning, since Dr. Smith has reportedly not attempted to renew his license since 2008.