The only parent in Canada still behind bars for a murder conviction as a result of testimony from disgraced pathologist Charles Smith finally has the wheels of justice grinding in her favour.
From her prison cell, Tammy Marquardt has watched helplessly as Dr. Smith's once-sterling reputation was destroyed in case after case – several times granting freedom to a parent or caregiver convicted of killing a child. But never for her.
It has been 14 years since she passed up a plea bargain in order to tell a disbelieving jury she had not suffocated her two-year-old son, Kenneth. Now, the Supreme Court of Canada has granted permission to reopen her case.
“They say the truth will set you free,” Ms. Marquardt said, her green eyes flashing, as she sat in a sparsely furnished office at the Grand Valley Institution for Women in Kitchener, Ont. “Well, it didn't set me free; it gave me a life sentence. And right now, I'm still living with that life sentence.
“For years, I was told that I was in denial,” she said in her first-ever interview. “You're in here, so obviously you did something. I had to just hold my head up, knowing in my heart of hearts that I hadn't done anything. I know the truth – and it will come out some day. I have just held onto that.”
Ms. Marquardt's dark journey began on Oct. 9, 1993, when she called 911 in a panic to report that she had emerged from the shower to find Kenneth – who had a history of epileptic seizures – tangled in his bedclothes, struggling for breath and calling, “mommy.”
“According to all witnesses who entered the apartment – and thereafter, the hospital – the applicant was visibly and deeply upset,” says a brief filed with the Supreme Court on her behalf.
On the eve of her trial, her two lawyers gave her conflicting advice. “One kept saying, ‘There isn't enough evidence here to get you convicted.' The other was saying, ‘The Crown's offering you a plea of manslaughter for five years – take it!' I hadn't done anything,” Ms. Marquardt said. “Why should I take it?”
The Crown portrayed Ms. Marquardt as an overstressed mother on welfare who had called the Children's Aid Society several times to have Kenneth temporarily placed in a foster home, once expressing fears that she might hurt him.
“Dr. Smith's testimony was central to the prosecution theory that the applicant was an impecunious young mother with limited parenting and coping skills,” says the brief. “Dr. Smith entirely discounted the theory that Kenneth, who had been treated for a number of seizures during his life, may have died during a seizure.”
Proudly touted by his employers at Ontario's Office of the Chief Coroner as a world-class pediatric pathologist, Dr. Smith's view carried the day. Ms. Marquardt was convicted of second-degree murder and sentenced to life in prison with no chance of parole for 10 years.
However, in an affidavit filed with her brief, Newfoundland's Chief Medical Examiner, Simon Avis, flatly dismisses Dr. Smith's conclusion that Kenneth's death was a result of asphyxia. The only legitimate finding for cause of death, he said, is “undetermined.”
“To further define the asphyxia as a result of smothering or neck compression was wrong and inappropriate,” Dr. Avis said.
His view is corroborated by a Finnish pathologist, Pekka Saukko, who branded Dr. Smith's findings “illogical and completely against scientific-based reasoning.”
Ms. Marquardt said she does not regret her decision to reject the offer of a five-year sentence in return for pleading guilty to manslaughter. “I don't think I could have lived with myself,” she said. “They shouldn't have even offered it. So long as they get somebody – that's all that matters.”
James Lockyer, a lawyer with the Association in Defence of the Wrongly Convicted, calls Ms. Marquardt's case “as heart-wrenching as you can imagine.”
