TORONTO — A woman implicated by disgraced pathologist Dr. Charles Smith in the death of her three-year-old stepdaughter is set for exoneration more than two decades after pleading guilty to manslaughter, The Canadian Press has learned.
Documents filed ahead of a court hearing next week show the attorney general agrees Maria Shepherd’s guilty plea and conviction should be struck and an acquittal entered.
“Had the appellant and her lawyer known then what they know now, the plea would not have been entered,” the Crown says in its factum.
“More importantly, the fresh medical evidence shows that Dr. Smith’s evidence, which formed the foundation of the guilty plea, was fundamentally flawed.”
The Shepherd case was one of many suspicious child deaths in which Smith, a renowned and highly regarded Toronto-based forensic pathologist, had done the autopsy. However, a review of his work starting in November 2005 and subsequent public inquiry uncovered numerous examples in which he had made egregious errors.
After an initial review turned up problems with Smith’s findings in the Shepherd case, the Ontario Court of Appeal in May 2009 allowed her to appeal her conviction.
Kasandra Shepherd, of Brampton, Ont., who had been through a period of health problems, began vomiting and became unresponsive on a day in April 1991. She died two days later in hospital.
Smith, who was stripped of his medical licence in 2011, identified an injury on the back of the child’s head and concluded she had died from trauma due to at least one blow of “substantial or major or significant force.” He also said Shepherd’s watch likely caused bleeding on the inside of the girl’s scalp.
Shepherd, then 21, told police she had pushed the child once, her wrist and watch making contact with the back of the girl’s head. However, she also insisted she didn’t believe the blow could have killed the girl.
“He was the Crown’s star witness and his reputation preceded him,” her trial lawyer Thomas Wiley says of Smith’s opinion in a 2013 affidavit.
“I found his opinion to be compelling, and seemingly unassailable.”
However, after Wiley consulted an outside expert, who agreed Smith’s theory was reasonable, Shepherd pleaded guilty to manslaughter in October 1992.
“I remember the first day of the preliminary hearing when Dr. Smith walked into court,” Shepherd says in an affidavit in December 2015. “It was like a superhero entered the room.”
She was sentenced to two years less a day and gave birth to her fourth child in custody.
While the guilty plea was valid at the time, the Crown now says the conviction should be set aside based on new forensic evidence. Experts have now concluded Smith’s testimony at Shepherd’s preliminary hearing contained a “number of significant errors.” The best guessing is that Kasandra may have had a previous brain injury that caused seizures or that she suddenly developed a seizure disorder that led to her death.
Either way, they agree, her death should have been classified as “undetermined.”
“All the experts (now) agree that Dr. Smith’s watch theory was wrong,” the Crown now admits.
“It is in the interests of justice that the conviction be set aside and, in the circumstances of this case, an acquittal be entered.”
The case also led to an obstruction-of-justice prosecution of Shepherd’s family doctor, who had said bruises on the girl could have been the result of a blood disorder. That case was thrown out before trial.
Shepherd, who is still married to Kasandra’s father, did not return calls seeking comment.
“I did not cause Kasandra’s death, and my conviction for doing so has haunted me ever since,” she says in her affidavit.
Her lawyer, James Lockyer, refused to discuss the case pending next week’s hearing before the Court of Appeal.