Globe and Mail

Man seeks exoneration 16 years after death of son


May 26, 2008

After learning that the country's leading forensic pathologist - Charles Smith - was going to testify against him at his trial for murder in the death of his five-week-old baby, Dinesh Kumar realized his chances of an acquittal were minuscule.

"My lawyers told me that whatever he said, the court would make their decision because of it," Mr. Kumar said, in his first public statement since his 1992 conviction. "My lawyer told me that Dr. Smith was like a god in court. The whole thing was up to him."

Resigned to his fate, the 42-year-old man accepted an extraordinarily lenient plea offer from the Crown. He admitted to a crime that Mr. Kumar insists he did not commit - shaking his baby, Gaurov, to death. His sentence was 90 days in jail for criminal negligence causing death - a far cry from the term of life imprisonment he had faced.

Sixteen years later - with Dr. Smith's reputation reduced to ashes and many of his court findings in great doubt - Mr. Kumar is returning to court in search of exoneration. Tomorrow, he intends to tell an Ontario Court of Appeal judge that his guilty plea was the act of a desperate man who was terrified of spending his life behind bars.

"I want to show people that I didn't do anything to my son," Mr. Kumar said in an interview.

"This is always on my mind. I came to this country for its good opportunities - and then, this happened to me. I have felt a great sadness inside. Almost every night, I have been crying. It changed my life totally."

The Kumar case was among 20 cases Mr. Justice Stephen Goudge has scrutinized recently at an inquiry into errors Dr. Smith made during his two-decade reign as Ontario's top forensic pathologist.

As part of the application to reopen the case, Association in Defence of the Wrongly Convicted lawyers James Lockyer and Alison Craig intend to argue that Dr. Smith's theory - that baby Gaurov was a victim of shaken baby syndrome - is scientifically unsustainable.

"Some medical experts have gone so far as to suggest that the condition of shaken baby syndrome is a medical myth," the lawyers maintain in a brief to the court.

In his affidavit, Mr. Kumar states that his lawyer - David Gorrell - urged him to accept the Crown's extraordinary offer in 1992. He said that he was petrified at the prospect of being deported or having his other son, Saurob, taken away permanently.

"I could not allow my wife to bring up Saurob without me," he said in the affidavit. "I could not conceive of losing him too. I wanted to get everything over with. It was the hardest decision I ever had to make."

Mr. Kumar had emigrated from India just two years earlier. He married, and Gaurov was born shortly afterward. Just five weeks later, Gaurov screamed in his sleep one night. Mr. Kumar said he rushed over to the child's crib to find him gasping and bluish. Doctors determined later that night that Gaurov was brain-dead. A day later, on March 20, 1992, he was removed from life support.

There was little time for Mr. Kumar and his wife, Veena, to mourn. Based on Dr. Smith's autopsy conclusions, police quickly homed in on Mr. Kumar as a killer. On June 26, 1992, he was arrested.

Mr. Kumar said that after their ordeal he and his wife decided not to have any more children, for fear they might lose them. "We were completely devastated and dejected," Mr. Kumar said in his affidavit. "I carry a photograph of Gaurov everywhere I go. We cry for him. I think of him every day.

"I love him, cared for him, and would never have done anything to hurt him. I did not, as was claimed, shake him at all. I was a gentle, careful, loving father to him at all times without exception."

The real cause of Gaurov's death might never be solved. In their brief, Mr. Lockyer and Ms. Craig state that Dr. Smith ought to have realized that shaken baby syndrome was not even a legitimate diagnosis at the time, since one of three indicators that must be present for such a diagnosis - retinal hemorrhages - was absent.

They said that bleeding in Gaurov's brain lining at his autopsy could have been the result of a birth injury that reopened and bled again.

In the interview, Mr. Kumar said that he longs only to restore his reputation; that he tries not to think about the profound effect Dr. Smith's conclusions had on his family.

"I don't need to say anything about him," Mr. Kumar said. "He is going to get punished by God."

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