The Child Cases: Lessons From Canada Tammy Marquardt is one of at least a dozen people prosecuted for killing children in Ontario based on what later turned out to be tainted medical evidence. In just the past few years, courts have overturned several of those convictions, and more are under review.
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The Child Cases: Lessons From Canada

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The Child Cases: Lessons From Canada

The Child Cases: Lessons From Canada

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From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.


And I'm Melissa Block.

We have been reporting this week on a grim pattern in the courtroom. When it comes to determining the cause of a child's unexpected death, medical and legal experts often disagree. And that means innocent parents are sometimes wrongly accused of murder and sent to prison.

SIEGEL: No place has dealt with this more directly or on a larger scale than Ontario, Canada. Now, its courts are overturning convictions and improvements are in place to prevent other innocent parents from being charged.

NPR's Investigative Unit, along with PBS "Frontline" and ProPublica, studied almost two dozen cases, half of them in Canada.

And NPR's Joseph Shapiro has the last of our reports.

JOSEPH SHAPIRO: Tammy Marquardt was sleeping when her two-year-old son cried out: Mommy. When she got to his crib he was tangled in the sheets. And by the time the emergency workers arrived, Kenneth had stopped breathing.

It was 1993, not far from Toronto. Tammy Marquardt was just 21. She was charged with killing her son by smothering him. When she insisted she was innocent, no one believed her. Marquardt was pregnant again when she was sentenced to life in prison.

Ms. TAMMY MARQUARDT: And when I got there, I was told to lie about why I was there because I was pregnant and if I wanted the child inside of me to live, that I'd have to lie and say, well, I killed my husband. So that's what I said because a baby killer would basically get the living daylights beaten out of them.

SHAPIRO: But soon, her case was on TV and in the newspapers. And from that day on, she had to fight, push and kick when another woman attacked. Marquardt is tiny, about 5 feet tall. She weighs just 85 pounds. Her red hair, in a pixie cut, frames her hollow cheeks.

She spent 14 years in prison, then was released on parole. Earlier this year, in February, Marquardt nervously faced a wall of reporters and photographers outside a courthouse in Toronto.

Ms. MARQUARDT: Well, finally the nightmare is coming to an end and I'm waking up.

SHAPIRO: An appeals court had just overturned her conviction. A judge said she'd been convicted because of a flawed and falsified autopsy report. Marquardt told reporters she still grieved the son who died. And for her two other boys who were taken from her and put up for adoption. She's never seen them since.

Ms. MARQUARDT: Try having your heart ripped out and someone squeezing it right in front of your face. Like, it's, there is no real words for it. It's just a lot of pain and hurt that cannot be fixed.

SHAPIRO: Marquardt is one of at least a dozen people prosecuted for killing children in Ontario, based on what later turned out to be tainted medical evidence. Courts, in just the last few years, have overturned several of those convictions and more are under review.

A government inquiry stunned Canada, particularly what it turned up about a pediatric pathologist, Dr. Charles Smith. He was called to testify at that inquiry.

Dr. CHARLES SMITH (Pediatric Pathologist): I have come to appreciate mistakes that I made. And I am sorry for them.

SHAPIRO: The investigation showed that Smith manipulated autopsy reports and distorted evidence to get convictions. Smith did not respond to our requests for an interview and hung up when I reached him on the phone.

Justice STEPHEN GOUDGE (Court of Appeal, Ontario): People were wrongly convicted, yes.

SHAPIRO: Stephen Goudge, a justice on Ontario's Court of Appeal, led the inquiry. In a rare interview, he talked about how Smith became so highly respected that defense attorneys told their clients they couldn't win if Smith testified against them.

Justice GOUDGE: He really grew to an iconic stature in the field in Canada. Partly because of his reputation, partly because of what he told juries. A number of convictions probably were based in significant measure on his opinions.

SHAPIRO: But as Goudge's inquiry found out, Smith was trained to study disease in children. He had no training to study cases when a crime was suspected. Even worse: He lied, he hid evidence, he used junk science. He did what it took to get a conviction.

Justice Goudge says this was called thinking dirty. The Goudge Commission found the actual words - think dirty - in instructions from Ontario's chief coroner in 1995, to coroners, pathologists and police chiefs.

Justice GOUDGE: Think dirty reflects a cast of mind that was prevalent often with the child care community in the 1990s. That is, injuries observed were deliberately inflicted - that's the presumption to be disproved.

SHAPIRO: At the time, there was reason to fear that some cases of children being murdered were being missed, and sometimes classified instead as Sudden Infant Death Syndrome. That's a category for deaths when the cause can't otherwise be determined.

But by thinking dirty, pathologists and prosecutors ended up ignoring other reasons the children may have died, reasons that had nothing to do with child abuse at all.

Mr. JAMES LOCKYER (Defense Attorney): A common feature of all these cases is that there were always very good explanations for why each of these children died.

SHAPIRO: James Lockyer is the Toronto lawyer who represents Tammy Marquardt and several others whose convictions have been overturned.

Mr. LOCKYER: I mean, it wasn't complicated to work out how these children died. They had pre-existing conditions, whether it was an epileptic condition or some other kind of condition.

SHAPIRO: Lockyer says Tammy Marquardt's son, Kenneth, died from an epileptic seizure. Doctors had put the boy on two drugs to control epilepsy. But at trial, pathologist Charles Smith and other prosecution medical experts minimized his epilepsy, even though over the two years of his life, the boy's medical records showed many seizures and multiple trips to the emergency room.

Prosecutors said these were just the common seizures among young children that result from a high fever. And Dr. Smith claimed, falsely as it turned out, that he could tell the boy had been smothered, probably with a pillow.

Lockyer says there was something else that was common among the people he's helped exonerate.

Mr. LOCKYER: Most of the victims of Smith, if not all of them, were easy, easy marks. And Tammy was a good example of an easy mark. She was a young, single mother, she was impoverished, she was on welfare.

SHAPIRO: In his autopsy report, Smith speculated that Marquardt had killed her child because she'd acted out of anger over the chaos in her life. She was a teen mother with a history of substance abuse and troubled relationships with men. That day, her boyfriend had gone to be with a woman who was giving birth to his child.

But the pathologist's emphasis on this, which became the prosecution's theory, was pure speculation, not science.

Dr. CHRISTOPHER MILROY (Forensic Pathologist): So, just going into the morgue area.

SHAPIRO: Dr. Christopher Milroy is a new forensic pathologist hired in Ottawa. He also worked on the investigations of pediatric autopsies.

Dr. MILROY: The forensic suite is the room is where we actually conduct the main criminally suspicious deaths. I'll do the pediatric deaths in here.

SHAPIRO: This autopsy room is cool, dark and clean. It's just a year old. Ontario is spending more money on forensic pathology now for equipment, modernized space, and salaries to try to raise the profession. Pathologists, today, need to be better trained and more expert than ever. They conduct more tests for rare metabolic disorders and genetic diseases. They order X-rays, CAT scans and MRIs.

Ontario has changed the rules for how to do an autopsy and who does them.

Dr. MILROY: We've gone beyond the era where you have self-trained, self-taught people. You wouldn't want your surgeon to be self-trained and self-taught. Why should you have your forensic pathologist not certified?

SHAPIRO: There are lessons that American policymakers can learn from Canada, about how to improve the way we do child autopsies. Some of those solutions require spending more money. But others are simple. Canada, just like the U.S., lets doctors do autopsies even without board certification. Ontario now expects forensic pathologists to get better training. Or it hires new ones from countries that demand a lot of training, like England - that's where Milroy is from.

The investigations in Canada that turned up Charles Smith's flawed autopsies concluded that the problem went deeper than one rogue pathologist. So, now all autopsy reports in criminal cases are done by teams and peer reviewed.

And Dr. Milroy says there's another big change. It's in the way courts, police, and even pathologists themselves see the role of the forensic pathologist.

Dr. MILROY: We think the truth. What can I say about this case, truthfully? What cannot I say about this case, truthfully? One of the things that is important, as a forensic pathologist, is that you are not, and this is where again Smith erred, you are not part of the prosecution team.

(Soundbite of a child)

Ms. MARQUARDT: Mom, mom, mom, mom, mom, mom, mom, mom.

(Soundbite of a child)

Ms. MARQUARDT: Dad, dad, dad, dad, dad. Dad, dad, dad, dad, dad.

SHAPIRO: Today, Tammy Marquardt is a mother raising a child again. Her daughter Tiffany was born last August. Marquardt, now 39, lives in a small house in Toronto with her baby, her fiancee, his mother and his teenage daughter. Earlier this month, she won total exoneration when prosecutors announced they won't reopen her case.

She thinks about her son who died. And she wonders about her other two sons, who were put up for adoption when she went to prison, especially when she's in a crowd.

Ms. MARQUARDT: Like especially around that age, I sit there and go: I wonder, could that one be mine? Could that one be mine? For all I know, I could be sitting next to my son on the subway and not even know it.

SHAPIRO: Charles Smith never faced charges. Earlier this year, a medical board stripped him of his license and ordered him to pay a fine: $3,650. The regulatory board also ordered Smith to appear in person to hear its reprimand. Tammy Marquardt was there to see it. Smith didn't show up.

Joseph Shapiro, NPR News.

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