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Charles Smith performed Kenneth's autopsy and determined that his death was not an accident.
Charles was the leading expert in Canada on criminally suspicious pediatric deaths.

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On November 23rd, 1993, Tammy was arrested and charged with second-degree murder of Kenneth.

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Tammy Marquardt story about her wrongful conviction explained by Innocence Canada.

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Introduction

On May 18, 1991, 19-year-old Tammy gave birth to her first child, Kenneth.

Kenneth suffered from a number of serious health issues including asthma, pneumonia and epilepsy. The latter condition caused frequent and extremely severe seizures which saw Kenneth hospitalized several times over the course of his short life.

Kenneth's Death and Autopsy

On the afternoon of October 9, 1993, Tammy went to check on Kenneth - then 2 ½ years old - who was napping on the bed in their spare bedroom. She thought she had heard him calling her. When she got to the bedroom, she found Kenneth tangled in sheets, gasping for breath and in obvious distress. She tried, unsuccessfully, to free him, before calling for an ambulance. The 911 operator instructed her to perform CPR, but she was unable to calm herself sufficiently to follow the instructions. The emergency crews arrived and took Kenneth to hospital, where he was revived; but tragically, the doctors determined that he had suffered irreparable brain damage. Three days later, Kenneth was taken off life support and passed away. Tammy gave permission for his viable organs to be harvested for donation, as she hoped that her tragedy could prevent other parents from suffering a similar loss.

In 1993, Charles Smith was the leading expert in Canada on criminally suspicious pediatric deaths. He was the Director of the Ontario Pediatric Forensic Pathology Unit at SickKids Hospital in Toronto, and frequently lectured on pediatric forensic pathology to Crown counsel, police officers and coroners. He was tasked with performing Kenneth's autopsy. Smith concluded that Kenneth's death was not accidental and, on November 23, 1993 - less than two months after losing Kenneth - Tammy was arrested and charged with the second-degree murder of her son.

Tammy's Trial

Tammy was tried by judge and jury in Whitby, Ontario. Smith testified that Kenneth's cause of death was asphyxia and surmised that his death was as a result of him being strangled or smothered. Smith's testimony was central to the prosecution's theory that Tammy had suffocated her son in a moment of frustration. In the eyes of the Crown, Tammy was a young mother with limited financial resources, parenting and coping skills, who was involved in an unstable relationship with Kenneth's step-father. Smith pointed to petechial haemorrhages - small red spots on the organs and tissues that had not been donated - as proof of this theory. The Crown further relied on the testimony of several Children's Aid workers to lend circumstantial support to Smith's conclusion.

Tammy testified in her own defence and insisted that she was innocent, a position she unwaveringly maintained throughout her ordeal. The defence argued that Kenneth had died during an epileptic seizure, but they called no medical expert of their own to support this theory. Perhaps not surprisingly, the jury accepted the Crown's theory, and, on October 24, 1995, Tammy was convicted of Kenneth's murder. She was sentenced to life in prison without the possibility of parole for 10 years.

Tammy appealed her conviction to the Ontario Court of Appeal. On January 22, 1998, her appeal was dismissed by a unanimous court. Since Legal Aid Ontario refused to provide her with further funding, she was not able to make an application for leave to appeal to the Supreme Court of Canada. Having lost her son and her case, Tammy languished in prison.

AIDWYC and Tammy's Exoneration

As early as 1991, concerns were voiced regarding Smith's professional competence. That year, trial judge Justice Dunn acquitted a 12-year-old girl who had been charged with manslaughter following the death of the 16-month-old child she was babysitting. Justice Dunn was critical of Smith's evidence, methodology and conclusion. Throughout the late 1990s and early 2000s, Smith continued to garner negative attention - though given what is now known about Smith's reign of terror during these years, in retrospect the complaints were relatively few and far between.

In February 2003, the Association in Defence of the Wrongly Convicted (AIDWYC) wrote to the Crown Law Office Criminal (of Ontario's Ministry of the Attorney General), requesting the release of autopsy materials from another of Smith's patients for their work on the William Mullins-Johnson case. AIDWYC soon grew suspicious of Smith's conclusions in other cases as well. In 2004, Tammy applied to AIDWYC for help with her case. In April 2005, AIDWYC wrote to Dr. Barry McLellan (then the Chief Coroner for Ontario) and Michael Bryant (then the Attorney General), urging a full public inquiry into Smith's work.[1]

On June 7, 2005, Dr. McLellan announced in a press release that a formal review would be conducted of criminally suspicious child deaths for which Smith had performed the autopsy. By this time, Tammy had spent over a decade in prison. As part of the Chief Coroner's Review - the precursor to the later and broader Inquiry into Pediatric Forensic Pathology in Ontario, commonly referred to as the Goudge Inquiry - Dr. Pekka Saukko, a Professor of Forensic Medicine at the University of Turku, Finland, was assigned to review Kenneth's case.

In his October 2007 report to the Chief Coroner, Dr. Saukko concluded that Smith's finding of asphyxia was "illogical and completely against scientific evidence-based reasoning." He found that "[t]here is not sufficient evidence for the diagnosis of asphyxia to be made. It cannot be based only on petechial hemorrhages [the "red spots"] of thymus, pulmonary pleura and epicardium which are non-specific findings. The cause of death should be given as unascertained." Later at the Goudge Inquiry, Dr. Saukko testified that the evidence that Smith had given at Tammy's preliminary inquiry and trial was unprofessional and misleading.

In 2008, Dr. Simon Avis, the Chief Medical Examiner for the Province of Newfoundland, conducted a second comprehensive review of the medical evidence and circumstances surrounding Kenneth's death. In his report, Dr. Avis agreed that Smith had wrongly attributed Kenneth's death to homicidal asphyxia and concluded that Kenneth may have died during an epileptic seizure or from other natural causes. While Smith stated that the harvesting of several of Kenneth's organs prior to autopsy was merely a "minor inconvenience," both Dr. Avis and Dr. Saukko were critical of this fact.

On February 10, 2009, AIDWYC brought an application for leave to appeal Tammy's case to the Supreme Court of Canada, along with the necessary application for an extension of time to file said appeal. The following day, the request for an extension of time was granted and, on March 12, 2009, Tammy was released from the Grand Valley Institution for Women in Kitchener, Ontario, pending the decision on her application for leave to appeal to the Supreme Court of Canada. She had spent nearly 14 years in prison.[2]

On April 30, 2009, the Supreme Court of Canada issued an order remanding the case to the Court of Appeal for Ontario for consideration of the fresh evidence and a determination of whether Tammy's conviction constituted a miscarriage of justice. This process took two years, but on June 7, 2011, the Ontario Court of Appeal quashed her conviction and ordered that a new trial commence on February 10, 2012.

Before the new trial could begin, however, the Crown withdrew the charges against Tammy. That decision was no doubt based on the fresh medical evidence provided by experts: the Dr. Avis, and Dr. Christopher Milroy, an expert retained by the Crown. Both agreed that Sudden Unexpected Death in Epilepsy (SUDEP) could not be ruled out as the cause of death in Kenneth's case. Furthermore, Dr. Avis suggested two additional alternative natural causes for Kenneth's death, both well-known causes of sudden deaths in infants and children due to inborn errors of metabolism. These two alternative causes are known as medium-chain acyl-CoA dehydrogenase (MCAD) deficiency and cardiac conduction defects.

The Causes of Tammy's Wrongful Conviction

Clearly, the overriding cause of Tammy's wrongful conviction was the evidence of Charles Smith. As Commissioner Goudge put it, Smith had "neither formal forensic pathology training nor board certification in that field." In short, he was a pediatric pathologist, not a forensic pathologist. In addition to being unqualified to do the autopsy work on which he spent so much time, Smith was a terrible expert witness. He consistently gave misleading statements and, at times, told outright lies on the witness stand. The reader is encouraged to view Commissioner Goudge's report in its entirety.[3]

If not for Charles Smith, it is unlikely that Tammy would have spent almost 14 years in prison for a "crime" that never happened. That said, there were other factors that contributed to her wrongful conviction. The jury heard a considerable amount of evidence regarding her demeanor at the hospital, Kenneth's funeral and upon her arrest. If this unreliable evidence were led at a trial today, it would likely be ruled inadmissible. While the trial judge instructed the jury not to place any weight on this evidence concerning the appropriateness of Tammy's emotional reaction, the fact is that they heard countless witnesses recount and opine on how an innocent, grieving mother should react to losing a child. Further, the fact that the defence did not call its own medical expert to testify at trial in support of their theory that Kenneth had died as a result of an epileptic seizure was problematic. Legal Aid Ontario's refusal to fund an appeal to the Supreme Court of Canada also cannot be ignored.

The Wounds AIDWYC Cannot Heal

Tammy's wrongful conviction - like all wrongful convictions - had multiple causes. Most people cannot imagine the pain not only of losing a child, but also of having that pain unbearably compounded by an arrest, trial and wrongful conviction for his murder. Tammy experienced it all and spent 13 years in prison for a crime that did not happen. Though nothing can bring Kenneth back or restore the years that Tammy lost, AIDWYC fought for Tammy - as it does for all its clients - and the truth of her innocence was revealed.

[1] Inquiry into Pediatric Forensic Pathology in Ontario Report (the Honorable Stephen T. Goudge, Commissioner), Volume 2: Systemic Review (2008), online: http://www.attorneygeneral.jus.gov.on.ca/inquiries/goudge/report/index.html ["Goudge Inquiry"].

[2] Tracey Tyler, "Woman in case of disgraced pathologist freed on bail" (13 March 2009), online: The Star http://www.thestar.com/news/ontario/2009/03/13/woman_in_case_of_disgraced_pathologist_freed_on_bail.html

[3] See http://www.attorneygeneral.jus.gov.on.ca/inquiries/goudge/index.html

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On May 18, 1991, 19-year-old Tammy gave birth to her first child, Kenneth. Kenneth suffered from a number of serious health issues including asthma, pneumonia and epilepsy. The latter condition caused frequent and extremely severe seizures which saw Kenneth hospitalized several times over the course of his short life.

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An article from durhamregion.com about Tammy's release from her wrongful conviction.

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Justice at last for wrongly convicted Oshawa woman

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OSHAWA -- Tammy Marquardt walked out of the Oshawa courthouse and into the warm sunshine of a Tuesday morning, strode to a bank of microphones, and smiled. \

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Article about Tammy being cleared after 13 years in prison by Innocence Canada.

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Tammy Marquardt walked out of an Ontario courtroom fully free for the first time since 1995. Before she was cleared, however, a Superior Court judge offered her an apology.

"I appreciate that my words today may seem inadequate," Justice Michael Brown told Marquardt after the Crown withdrew the murder charge that had accused her of killing her two-year-old son.

"But I offer to you, Ms. Marquardt, my deepest expression of regret for all you gave endured as a result of the miscarriage of justice in this case. Nothing I can say to you today will repair the damage that has been caused to you."

Marquardt, 38, told reporters outside the courtroom that her "nightmare is finally over." She served 13 years in prison before being released on parole two years ago. She was cleared with the help of the Association in Defense of the Wrongly Convicted, a Toronto based organization and a member of the Innocence Network. AIDWYC has represented several people who were wrongfully convicted based on false testimony from a former medical examiner, Charles Smith, whose work has been discredited in recent years. Smith testified that Marquardt's son had been strangled or suffocated when evidence instead showed that he died of an epileptic seizure.

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Canadian Woman Finally Cleared After 13 Years in Prison - Innocence Project

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Tammy Marquardt walked out of an Ontario courtroom fully free for the first time since 1995. Before she was cleared, however, a Superior Court judge offered her an apology. "I appreciate that my words today may seem inadequate," Justice Michael Brown told Marquardt after the Crown withdrew the murder charge that had accused her of killing her two-year-old son.

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Questions regarding the case of Tammy Marquardt

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Questions regarding the case of Tammy Marquardt

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On October 9th, 1993, Tammy went to check on 2 year old son, Kenneth. She discovered that Kenneth was tangled in the sheets.
He was revived at the hospital, but the doctor discovered that he suffered from an irreparable brain damage. Three days later, Kenneth passed away.

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Tammy Marquardt and William Mullins-Johnson

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Tammy Marquardt and William Mullins-Johnson

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Tammy hugging William Mullins-Johnson, who was also wrongfully convicted due to Charles Smith.

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Discussions about Charles Smith's malpractices

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Discussions about Charles Smith's malpractices

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Video about Charles Smith, the pathologist, who was the reason for many wrongful convictions.

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Tammy holding a picture of her son, Kenneth, on her release day.

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Tammy with the media on her release day answering questions about her wrongful conviction.

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Tammy Marquardt, Another Innocent Victim of Charles Randall Smith aka "Randy Smith".flv

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An article by CBC on Charles Smith about his malpractices.

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On a typical case, he might have to decide whether a child had been shaken to death or accidentally fallen from a highchair.

Dr. Charles Smith was once considered top-notch in his field of forensic child pathology. In 1999, a Fifth Estate documentary singled him out as one of four Canadians with this rare expertise.

For 24 years, Smith worked at Toronto's Hospital for Sick Children. In the hospital's pediatric forensic pathology unit, he conducted more than 1,000 child autopsies.

But Smith no longer practises pathology. An Ontario coroner's inquiry reviewed 45 child autopsies in which Smith had concluded the cause of death was either homicide or criminally suspicious.

The coroner's review found that Smith made questionable conclusions of foul play in 20 of the cases - 13 of which had resulted in criminal convictions. After the review's findings were made public in April 2007, Ontario's government ordered a public inquiry into the doctor's practices.

That inquiry, led by Justice Stephen Goudge and concluding in October 2008, found that Smith "actively misled" his superiors, "made false and misleading statements" in court and exaggerated his expertise in trials.

Far from an expert in forensic child pathology, "Smith lacked basic knowledge about forensic pathology," wrote Goudge in the inquiry report.

"Smith was adamant that his failings were never intentional," Goudge wrote. "I simply cannot accept such a sweeping attempt to escape moral responsibility."

Two years later, the Ontario government announced compensation for families affected by Smith's mistakes.

Individuals will be entitled to a maximum of $250,000 each. A child of someone wrongfully accused who was removed from the family home as a result is entitled to up to $25,000.

A family member directly affected by a relative's involvement in the criminal justice system is entitled to up to $12,500. Legal costs incurred by the wrongly accused may also be reimbursed.

Acted more like a prosecutor

Some have accused Smith of taking on a role larger than pathologist. The lawyer for Brenda Waudby said he was on a crusade and acted more like a prosecutor. Waudby was convicted in the murder of her daughter after Smith analyzed the case.

A pubic-like hair found on her daughter disappeared during Smith's investigation. It was discovered he had kept the hair in his office before police found it five years later. In the end, the charges against Waudby were dropped and the child's babysitter was convicted.

Smith said he had a passion for uncovering the truth in child deaths. The Ontario pathologist told media lampooning him he had "a thing against people who hurt children." He welled up when speaking about a mother looking for the cause of her baby's death.

Smith had been in search of his own personal truths. He was born in a Toronto Salvation Army hospital where he was put up for adoption three months later. After years of looking for his biological mother, he called her on her 65th birthday. But she refused to take his call.

Smith's adoptive family moved often. His father's job in the Canadian Forces took them throughout Canada and to Germany. He attended high school in Ottawa, and graduated from medical school at the University of Saskatchewan in 1975.

Sick Kids tenure

Hired by Toronto's Hospital for Sick Children in 1979, Smith worked in surgery for a year and then moved on to pathology training. A pathologist studies diseases and illnesses by assessing matter such as cells, tissues, organs and fluids. Pathologists also examine biopsy material, and give a subsequent diagnosis.

When it comes to autopsy reports, the field of pathology can be a subjective one. It's based on research and opinion, and it's especially controversial in Canada, where there is no formal training or certification process. Only a handful of practitioners in Ontario are entrusted with the job - and they've learned by doing.

With child victims, forensic analysis is rarely cut and dried. It can take an infant up to 24 hours to die of a shaking incident, which is a crime that doesn't leave evidence the way a regular killing might.

After his initial training at Sick Kids, as the Toronto hospital is known, Smith began conducting child autopsies in 1981. He started with children who had died of accidental and natural causes. By the late '90s, Smith saw more forensic child cases than any other pathologist across the country.

Smith's unit used arrest warrants to reinvestigate cases of sudden infant death syndrome (SIDS). He oversaw the autopsies of exhumed babies that led to new murder charges.

In one such case, Smith appeared before a court in the death of six-month-old Sara Podniewicz. He concluded she had been dead for up to 15 hours before her parents reported the death. The parents had told a 911 operator the girl had died just moments before. Smith's analysis led to second-degree murder charges.

In December 2009, Sherry Sherrett-Robinson was acquitted of killing her son whom Smith had concluded died of asphyxia a decade earlier. Smith suggested Sherrett-Robinson's son, Joshua, suffered a skull fracture and neck hemorrhages. Ontario's chief forensic pathologist, Dr. Michael Pollanen, however, told the Ontario Court of Appeal that he did not find a skull fructure and noted the neck hemorrhages were caused during the autopsy process.

First doubts

In 1991, a family in Timmins, Ont., was the first to raise questions about Smith's work. He had concluded their one-year-old baby had died from being shaken. The child had been under the care of a babysitter who said the baby had fallen down stairs.

In court, experts challenged Smith's opinion, which had resulted in the babysitter's charge of manslaughter. The judge in the case stated Smith should have taken other causes into consideration.

Once the most prolific pathologist, Smith began getting a reputation for late cases, and his disorderly desk produced samples that had gone missing.

In 2002, he received a caution from the Ontario College of Physicians and Surgeons. The college said he was being "overly dogmatic" and had a "tendency towards overstatement."

In June 2005, Dr. Barry McLellan, Ontario's chief coroner, started the review of 45 child autopsies conducted by Smith between 1991 and 2002. The review, released in April 2007, found that Smith had made mistakes in 20 cases involving the deaths of children. The review cast doubt on criminal convictions in 13 of the cases.

"I am very surprised with the overall results of the review, and concerned," McLellan said. "In a number of cases, the reviewers felt that Dr. Smith had provided an opinion regarding the cause of death that was not reasonably supported by the materials available for review."

The chief coroner said the results of the review were being shared with defence and Crown attorneys involved in all of the relevant criminal cases.

After resigning from Sick Kids in 2005, Smith accepted a pathology position in Saskatoon. He was fired after three months. A tribunal later reinstated him, but without a licence, Smith was unable to practise.

Smith told media his marriage ended in light of stress from the highly publicized events. He had lived with his wife and two children on a farm north of Newmarket, Ont.

As a member of the Christian and Missionary Alliance, Smith says he has been fuelled by his life's purpose - finding out the truth for parents who have lost babies.

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Dr. Charles Smith: The man behind the public inquiry | CBC News

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Dr. Charles Smith was once considered top-notch in his field of forensic child pathology. But Smith no longer practises pathology. An Ontario coroner's inquiry reviewed 45 child autopsies in which Smith had concluded the cause of death was either homicide or criminally suspicious.

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A brief video of Tammy's Wrongful Conviction 

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A brief video of Tammy's Wrongful Conviction 

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The story of Tammy's wrongful conviction in video.

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The Wrongful Conviction of Tammy Marquardt