DATE: Nov 8, 09:30 PM
By John Ward
THE CANADIAN PRESS
OTTAWA — A Toronto couple convicted in the death of their infant son on the testimony of a discredited pathologist has won a new trial.
The Supreme Court of Canada ruled 9-0 on Thursday that Marco and Anisa Trotta should have a new trial because the testimony of Dr. Charles Smith was discredited by new evidence offered by two other doctors — including Dr. Michael Pollanen, the chief forensic pathologist for Ontario.
Marco and Anisa Trotta were convicted in 1998 in the 1993 death of their eight-month-old son Paolo.
Marco was sentenced to life with no chance of parole for 15 years for murder and Anisa was given five years for negligent homicide and failure to provide the “necessaries of life.”
She has served her sentence and Marco was released on $100,000 bail last May after spending nine years behind bars.
In the first autopsy in Paolo’s death, Dr. David Chan could not nail down a specific cause of death, but suggested it might have been due to sudden infant death syndrome.
But after the couple’s son Marco Jr., was taken to hospital with a broken leg a year later, police reopened their investigation. Paolo’s body was exhumed and Smith claimed to have found evidence of longstanding abuse leading to death from a skull fracture.
Smith’s evidence has been called into question in several other serious cases.
While the Ontario Court of Appeal upheld the convictions, the defence took new evidence from the other doctors to the high court.
“Essentially, the fresh evidence . . . discredits the evidence given at trial by Dr. Charles Smith,” Justice Morris Fish wrote.
The Crown had accepted that Marco’s murder conviction could not stand, but argued he was still guilty of manslaughter and that the other charges were still valid.
Fish said all the charges were tied together at trial and, given Smith’s “unreliable” evidence, they all fall together.
“We think it neither safe nor sound to conclude that the verdicts on any of the charges would necessarily have been the same but for Dr. Smith’s successfully impugned evidence,” Fish wrote.
He said trying to guess the impact of Smith’s evidence “would amount to an unwarranted exercise in appellate speculation.”
“Plainly, then, if a new trial must be had, as we think it must, the preferable course is to order an untainted trial on all counts.”
Marco Trotta was released on bail after a report from Dr. Barry McLellan, Ontario’s chief coroner, concluded that Smith — once thought to be the country’s leading child pathologist — probably erred in 20 cases between 1991 and 2002 in which people were charged with killing children.
The cases included a dozen convictions and the province called an inquiry, which is to begin this month.
The province supported the wrongful conviction of William Mullins-Johnson, who spent 12 years in jail for the death of his four-year-old niece, Valin Johnson, after other experts concluded the child died of natural causes.
Sherry Sherrett of Trenton was convicted on infanticide in the 1996 death of her son, Joshua, on Smith’s testimony and was jailed for a year. She is seeking to clear her name.