Case Summary
Sherry Sherret-Robinson was 20 years old when her second child, Joshua, was born on September 23, 1995.1 Starting shortly after his birth, Sherry made frequent trips to the doctor with Joshua because he was having respiratory symptoms and was “irritable, vomiting and cried all the time.”2 Sherry had a family history of asthma, and suspected that their building’s mold problem was making Joshua sick.3
Sherry was having health problems as well: on December 29, 1995, she asked her mother to take her to the hospital because she was exhausted, upset, and struggling with thoughts of harming the baby. Hospital staff observed that she had not been eating or sleeping. Sherry discussed her fears with the ER physician, who concluded that “it appeared to be just an impulsive thought. She had no plan to execute it, and also at this time stated that she would never hurt her kids.”4 The doctor determined that Sherry did not need hospital admission—there was no real “thought or plan to harm the baby.”5 Sherry’s family doctor diagnosed her with postpartum depression on January 9, 1996 and prescribed antidepressants.6
On the evening of January 22, 1996, Joshua was vomiting more than usual. After comforting him for hours, Sherry’s partner Peter settled him for sleep.7 Joshua was “placed on his belly with his face turned to the side in a playpen . . . with an adult sleeping bag folded several times underneath him, and a comforter and a couple of blankets over him.”8 Sherry gave Joshua a bottle around midnight and then put him back in the playpen.9
The next morning, the couple found Joshua lying cold in the playpen without breath. Sherry called 911, sobbing. In the hospital emergency room, doctors were unable to revive Joshua.10
Charles Smith, at that time a leading expert in pediatric forensic pathology, performed the autopsy for Joshua.11 He concluded that Joshua had died of asphyxia. At first, Smith was uncertain as to what had caused the asphyxia: natural causes could not be ruled out. But soon, he changed his mind: at a meeting with police on February 8, 1996, Smith stated his belief that Sherry had smothered her son to death.12 He had seen “worrying” bleeding in the tissues of Joshua’s neck, which made him “highly suspicious” that the baby had been suffocated.13 Smith also reported a disturbing list of further injuries supporting his conclusion that Joshua’s death was a homicide: a skull fracture, swelling in Joshua’s brain, small blood vessel breakages, congestion in his lungs, and an injury to his left ankle.14
Without any basis or relevant expertise, Smith also told police that “mothers who kill their babies share certain characteristics,” one of which was that “they usually talk about it ahead of time,” just as Sherry had done.15
On March 27, 1996, Sherry was arrested and charged with Joshua’s murder.16 Sherry and her lawyer were concerned that she could not convince a trial court to accept her word over that of Charles Smith, the Crown’s star witness.17
In the run-up to Sherry’s trial, the prosecution offered her a plea deal. The Crown would drop the murder charge and substitute a charge of infanticide—which carried a reduced prison term–if Sherry agreed not to contest a statement that the Crown would read at court. This statement would assert that she had killed Joshua.18 Sherry knew that she was innocent, but felt she had no choice but to accept the Crown’s offer.19
On her court date, the Crown read out the statement as agreed and Sherry did not contest it. The statement included Smith’s medical opinion that Joshua’s cause of death was non-accidental asphyxia. Sherry was convicted of infanticide on January 4, 1999.20 She was sentenced to, and served, one year in prison.21 Her surviving son, Austin, was permanently placed with another family.22
In the years following Sherry’s conviction, increasingly grave concerns came to light regarding Charles Smith’s forensic pathology work. In June 2005, the Chief Coroner of Ontario announced that a formal review would be conducted of all forensic pathology cases from 1991 to 2002 where Smith performed the autopsy or acted as a consultant.23 The results of the Chief Coroner’s Review were released in April 2007. In 20 of the 45 cases surveyed, the reviewing experts took issue with Smith’s interpretation of the evidence in his written report, testimony, or both.24
In the wake of these troubling conclusions, Justice Stephen Goudge was appointed to lead a public inquiry into pediatric forensic pathology in Ontario.25 In 2007, the Goudge Inquiry Report revealed a staggering list of serious problems with Smith’s methodology and impartiality.26 Justice Goudge noted that Smith’s background in forensic pathology was “woefully inadequate,” since he had only been trained as a pediatric pathologist.27 Moreover, Smith “did not always ensure that he had all the relevant medical information before he conducted an autopsy,” and he was “sloppy and inconsistent in documenting the information” that he did have.28 In addition, Smith failed in his role as an expert witness by presenting his opinion in a “dogmatic and certain manner when the evidence was far from certain.”29 Justice Goudge found that Smith often “provided unbalanced or emotive testimony, which tended to invite inappropriate and adverse conclusions.”30
In Joshua’s case, the Goudge Inquiry found that Smith had made several serious errors: the evidence did not support his opinion that Sherry had killed her son. Notably, Smith had himself caused the damage to Joshua’s neck tissues in the course of performing the autopsy.31 Moreover, Joshua’s brain had shown no signs of swelling, and what Smith had thought was a skull fracture was normal bone development for a baby his age. The broken blood vessels and lung congestion were both “common findings in infant death” that did not suggest foul play, and the ankle injury could have had any number of causes.32
The Goudge Report concluded that Joshua’s probable cause of death was accidental asphyxia due to “an unsafe sleeping environment.”33 Smith might have recognized that had he visited the scene of Joshua’s death—he was found “with a mound of blankets around him”—but this practice was uncommon for pathologists at that time.34
In addition to his many forensic errors, Smith had also relied on irrelevant “information about the social history of those allegedly involved in the death” of children, including Joshua.35 Justice Goudge found that Smith had drawn on prejudicial content such as the child’s ethnic background and family structure: for instance, he included in his final autopsy report that “Joshua’s mother was married, but did not officially live with her husband so she could continue to collect welfare.”36 The inclusion of such information suggested that it “played a part in Dr. Smith’s thinking” when he made medical determinations.37
In light of this new evidence, Sherry applied to the Ontario Court of Appeal to have her conviction quashed.38 On December 7, 2009, the Court of Appeal unanimously overturned Sherry’s conviction and acquitted her.39 The Court found that the fresh evidence made it plain that Sherry’s “conviction was wrong and that she was the subject of a miscarriage of justice. It is profoundly regrettable that, as a result of what has been shown to be flawed pathological evidence . . . [Sherry] was wrongly convicted.”40
Sherry, who was pregnant with her fourth child when she was acquitted, explained that she had pled guilty because: “I was scared that I would never be allowed to be a mother again. I was scared of being convicted of murder and receiving a life sentence.”41 She added: “So as long as somebody can tell [Austin] . . . the truth, to know why he was taken from me, that's all that matters. . . . My mom raised me to always believe in the truth, and I stuck by that. I stood by it when I said I didn’t do anything to my son.”42
In 2011, Smith was stripped of his medical licence at a disciplinary hearing for disgraceful conduct.43