Toronto Star



Branded a 'baby killer,' woman pleads for justice
Mother convicted on basis of flawed autopsy asks that her nightmare end


April 24, 2007 Tracey Tyler
LEGAL AFFAIRS REPORTER

After nearly a decade of living with the stigma of being convicted of killing her son, Sherry Sherret looks forward to the day controversial pathologist Charles Smith takes the stand at a public inquiry into a series of botched child autopsies.

But the 31-year-old Belleville mother, convicted of killing 4-month-old Joshua mainly on the strength of Smith's findings, says she shouldn't have to wait months or years for an inquiry, announced by Attorney-General Michael Bryant yesterday, to clear her name.

"How much longer does he think I should have ... to live with the shame of being convicted of killing my own child?" a tearful Sherret questioned yesterday.

Accompanied by her lawyers, Sherret went public with a plea for justice, urging Attorney General Michael Bryant to concede her 1999 conviction for infanticide should come before the Ontario Court of Appeal for review.

Bryant plans to name an inquiry commissioner tomorrow. But despite the government's promised public probe, the Crown is refusing to support Sherret's bid to have her conviction set aside, said James Lockyer, a lawyer with the Association in Defence of the Wrongly Convicted.

Ontario's chief coroner announced last week that a review of 44 autopsies performed by Smith found mistakes were made in 20. Nine cases may have led to wrongful convictions, the association said.

While Bryant and the Premier were vowing publicly last week to take action, members of the attorney general's criminal convictions review committee were behind closed doors, refusing to concede the results of the review made any difference to Sherret's case, said Lockyer, who met with the committee.

The attorney general's office has known for more than a year the scientific basis for her conviction has crumbled, Lockyer said.
A spokesperson for the attorney general's ministry said the Crown will respond "appropriately" when Sherret asks the court to hear her appeal.

In a March 28, 2006 report, which was sent to Bryant's office, Dr. Michael Pollanen, Ontario's chief forensic pathologist, said a skull fracture identified by Smith during Joshua's autopsy was actually a "cranial suture" found in a normally developing head. Neck "hemorrhages" found by Smith were likely marks made during the autopsy, Pollanen said in his report.

When Sherret was convicted in Jan. 1999, the court was told Smith was "highly suspicious the death was non-accidental."

Pollanen said the post-mortem findings point to Joshua having accidentally asphyxiated in an unsafe sleeping environment, "without any influence by another party." He was put to bed in a playpen, on top of a sleeping bag that had been folded over several times, with a comforter and blankets on top of him.

Joshua likely rebreathed his own air and overheated, a well-known cause of infant death, Pollanen said. Last December, his findings were confirmed by Dr. Jack Crane, the state pathologist for Northern Ireland, who reviewed the case as part of the coroner's investigation.

Normally, a person convicted of a crime has 30 days to appeal, but extensions can be granted. Lockyer said Sherret's battle would be easier if the Crown conceded the appeal should be heard.

After Sherret was charged, her eldest son, now 13, was placed in the care of the Children's Aid Society and eventually adopted by another family. She has a 19-month-old daughter.

The day Joshua died – Jan. 23, 1996 – was "a mother's worst nightmare ... from that moment, I became a baby killer."

Sherret was charged with second-degree murder, but arraigned on a charge of infanticide in a deal arranged by her defence lawyer, a charge that carried a maximum of five years in prison as opposed to at least 10. Sherret did not challenge the facts read in court by the Crown and did not appeal her conviction, but she pleaded not guilty.

"I no longer have to account for anything, but Dr. Smith does," Sherret said.

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