Appeal Court acquits mom in baby death

Sherry Sherret-Robinson speaks to reporters outside court in Toronto on Monday, Dec. 7, 2009.

TORONTO - After living with the term baby killer for 13 years, Sherry Sherret-Robinson's exoneration came in a flash Monday, as the Court of Appeal for Ontario acquitted her of infanticide and pronounced her wrongfully convicted.

She was convicted in 1999 of her four-month-old son's death three years prior, due in large part to evidence of then-eminent pathologist Dr. Charles Smith.

Both the Crown and defence told the court Monday that new expert evidence "conclusively refutes critical aspects" of Smith's opinion that little Joshua was asphyxiated and that the death was suspicious.

He found evidence of a skull fracture where the other experts found none, and neck hemmorhages Smith referred to were in fact caused by Smith himself during the autopsy, the experts said.

After conferring for just 20 minutes, the three-judge Appeal Court panel returned to the courtroom and had barely sat down when they pronounced Sherret-Robinson acquitted, a verdict that "will be a surprise to no one," they said.

"The appellant's conviction was wrong and she was the victim of a miscarriage of justice," the judges said.

Sherret-Robinson's lower lip quivered as the judges told her: "You were wrongfully convicted."

To hear those words, exonerating her of deliberately smothering her four-month-old son Joshua 13 years ago, was a great sigh of relief, she said.

"It lifted a huge weight off my shoulders," Sherret-Robinson said outside court.

"To be able to know that it's actually been acknowledged, that I don't have to continue to say, 'I didn't do anything,' it just meant a lot."

The autopsy findings and the fact that Joshua had numerous layers of blankets under, around and on top of him, "reasonably support the conclusion that death occurred by an accidental asphyxial means in an unsafe sleeping environment," said Dr. Michael Pollanen, Ontario's chief coroner, in a report filed as fresh evidence.

A report on pediatric forensic pathology from Justice Stephen Goudge last year found the failings of the "arrogant" Smith, once considered the dean of his profession, and his bosses were at the heart of several miscarriages of justice.

Though Sherret-Robinson pleaded not guilty to infanticide, the Crown and her lawyer drafted an agreed statement of facts that said she smothered Joshua, causing his death, and she was found guilty in a Belleville, Ont., court in 1999.

Sherret-Robinson's lawyer at the time was one of many who felt they could not successfully challenge Smith's weighty evidence, court filings show.

Her lawyer for the appeal, James Lockyer, noted that Sherret-Robinson didn't just lose one child, she lost two -- almost three.

Her older son, now 15, was taken away from her by the authorities and put up for adoption, and she was days away from losing her now four-year-old daughter when she first contacted Lockyer a few years ago.

She hasn't seen her son since 1999 and said she hasn't actively pursued regaining custody of him since she believes he is comfortable with his adoptive parents and she doesn't want to turn his life upside down.

"If he wants to come see me he can say, `I want to go see my mom' and I'd graciously accept him with open arms," Sherret-Robinson said.

Lockyer said he thinks Sherret-Robinson is owed financial compensation, but she said she's looking for restitution of a different kind.

"The only type of compensation I'm interested in right now is that my son knows the truth," she said.

Sherret-Robinson now joins William Mullins-Johnson, who served 12 years behind bars for the murder of his niece -- a murder experts now say never even took place -- as someone acquitted of a child murder in a Smith case.

"It's pretty classic Dr. Smith problems where he misdiagnoses and overdiagnoses and turns natural deaths into homicides," Lockyer said.

There are seven other such cases working their way through Ontario's Appeal Court, he said.

"One of the problems in these types of cases is there does seem to be a lack of accountability on the part of those who were responsible for the wrongful convictions," Lockyer said.

"It's a perennial problem that we haven't solved in Canada yet. Maybe one day we will."