Appeal in Canadian shaken baby case

An arrogant and overconfident medical "expert" again. Similar to British cases

Richard Brant’s conviction more than 13 years ago in the death of his infant son was the result of disgraced pathologist Charles Smith’s work and should be quashed, the man’s lawyer said Tuesday as he prepared to file an appeal.

Brant was taking his two-month-old son Dustin for a walk on Nov. 16, 1992, after the boy had been sick for a few days. When he lifted the rain guard on the stroller he was horrified to find Dustin’s lifeless body with thick, red foam around his nose, Brant said in an affidavit filed with the court. The infant was taken to hospital and died two days later. The pathologist who conducted the autopsy listed pneumonia and respiratory failure as causes of death.

When Smith, then a prominent pathologist, examined the case he concluded Dustin likely died from Shaken Baby Syndrome. “Dr. Smith actually took it on himself to contradict the pathologist who provided the original opinion,” lawyer James Lockyer said Tuesday after Ontario’s highest court granted a time extention to file an appeal. “It’s a case where he played a very significant role in the prosecution of the father.”

Brant’s lawyer at the time told him “Dr. Smith was ‘The King’ of his field, and challenging his conclusions would be next to impossible,” Brant said in the affidavit. Facing the prospect of damning testimony from a star witness in court, Brant took a deal and pleaded guilty to aggravated assault, the documents state. His new girlfriend had just told him she was pregnant, and he didn’t want to risk being convicted of manslaughter and never being allowed to see his child. “I did not cause Dustin’s death or assault him in any way, and pled guilty because I felt I had no other realistic option,” the affidavit reads. “However, I now know that I entered my plea based on flawed pathology.”

Smith’s work was the focus of a public inquiry last year that blasted key players, including Smith, in a forensics scandal that saw innocent people branded as child killers. The Ontario government has launched a formal review of so-called shaken baby cases in which Smith played a role.

Lockyer said he will be asking the court to quash Brant’s conviction and enter a verdict of acquittal. There is virtually no way to re-examine Brant’s case through a new trial because key pathology evidence was unintentionally destroyed and a stay of the proceedings would be unacceptable, Lockyer said. “The evidence now is clear that Dustin died of natural causes,” he said outside the court. “It’s, in my view, not good enough to just say, ‘We’ll stay the proceedings against you.’ He really should never have been charged in the first place.”

There are several other cases like Brant’s that will likely be brought before the courts again, Lockyer said. “(Brant’s) case, as much as any of them, was dependent on Dr. Smith’s evidence,” Lockyer said. “This isn’t going to be the last of them, that’s for sure.”

Because of the time that has passed since Brant’s conviction, Lockyer had to ask the Ontario Court of Appeal for an extension of time to file an appeal. “The appellant has explained the delay and there is obvious merit to the appeal,” Justice Marc Rosenberg wrote in his endorsement. Lockyer was given until Friday to file the appeal.

Original report here



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