Tammy Marquardt

Tammy Marquardt, an Anishinaabe woman, was nineteen years old when she gave birth to her son, Kenneth Wynne.¹ Earlier in her life, Marquardt had dropped out of high school and she was moving between shelters and her friends’ couches by the time she had Kenneth.² As a newborn, Kenneth suffered from asthma and epilepsy. Tammy had no family to help her navigate being a young mother with a sick baby.³ The Children’s Aid Society took Kenneth away for short periods of time when Tammy could not look after him, as she feared she would fall asleep and accidentally hurt him.⁴ Children’s Aid reports did not express any concern that Tammy would put her son in danger.⁵

On October 9th, 1993, Marquardt’s husband left for the hospital to be with his ex-girlfriend, who was giving birth to his child.⁶ It was that afternoon that Tammy heard Kenneth calling for her and found him tangled in bedsheets. Tammy saw him turning white as she struggled to untangle him. She called 911, but could not properly perform CPR in her frantic state.⁷ Kenneth died in the hospital three days later.⁸ Tammy was immediately suspected of killing her son and was charged with second degree murder.⁹

Before her trial, Marquardt brought an application to challenge jurors for cause. She was concerned that as Kenneth was a young child, jurors would be partial to a conviction. Marquardt’s lawyer wanted to ask jurors whether they could remain impartial in a case where the victim is a young child, and whether they had a relationship with the police or Children’s Aid Society that would make them biased. The Court rejected this application.¹⁰

At trial, the prosecution characterized Marquardt as a troubled young mother, unable to cope with the hardships in her life, including her tumultuous relationship with her husband.¹¹ They presented the theory that Marquardt had taken her frustrations out on Kenneth. Dr. Charles Smith, a highly regarded pediatric forensic pathologist at the time, performed Kenneth’s autopsy. He testified that the cause of death was “asphyxia”, and that Kenneth’s brain had been deprived of oxygen.¹² Dr. Smith showed petechial hemorrhages (small red spots) over Kenneth’s heart, lungs and thymus. To explain the hemorrhages to the court, he likened the suffocation to the analogy of “[swallowing] a hotdog at a baseball game.”¹³ Dr. Smith was convinced that Kenneth had either been suffocated or strangled, and added that there was insufficient evidence of an epileptic seizure or death by natural causes.¹⁴

Although Smith’s diagnosis was faulty, it went unchallenged in court. At the time, Smith was highly acclaimed and the defense failed to acquire a medical expert to present an alternative view.¹⁵ On October 24, 1995, Tammy was convicted of second degree murder.¹⁶

When the case was brought to the Ontario Court of Appeal, the trial court’s decision was upheld. The court ruled that Marquardt’s testimony provided significant evidence that she was not in a state where she could have accidentally hurt Kenneth without intent. The court therefore held that the other evidence presented at trial, including the evidence presented by Dr. Smith, pointed to Marquardt having at least an intent to cause bodily harm that she knew was likely to cause death, and that this intent and the act of suffocation coincided at some point to produce the requisite elements of a homicide.¹⁷ Tammy was denied further legal aid and could not afford to appeal her decision to the Supreme Court of Canada.¹⁸

By 2005, Smith’s reputation had faltered, and a formal review of his work began. By this time, Marquardt had already spent years in prison, where she was frequently targeted and assaulted by other inmates for being a “baby killer.”¹⁹ Nobody believed in her innocence, but Marquardt had never wavered. In 2009, forensic pathologists Dr. Saukko and Dr. Abis reviewed Kenneth’s autopsy reports and dismissed Smith’s findings. The doctors established that the cause of Kenneth’s death could not be determined by the information they had, as the hemorrhages that Smith had relied on were not specific to asphyxia.²⁰ Ultimately, it was revealed that Charles Smith had made a general practice of falsifying reports, hiding evidence, and making claims based on “junk science.”²¹ His medical license was revoked in 2011, although he had stopped practicing in 2008.²² Smith has never been charged despite his role in many wrongful convictions.²³

On March 12th, 2009, in light of this new evidence, Marquardt was released on bail.²⁴ The Court of Appeal reconsidered the case and declared that Marquardt’s conviction was a miscarriage of justice. The Court of Appeal ordered a new trial, noting that “the expert evidence could… raise a reasonable doubt as to the cause of death. These are questions for a jury.”²⁵ For 13 long years, Tammy Marquardt maintained her innocence, and at long last, in 2011, the Crown withdrew all charges against her and decided not to proceed with a new trial.²⁶ 

Justice Michael Brown told Marquardt, then 37 years of age: “I appreciate that my words today may seem inadequate. Nothing I can say to you today will repair the damage that has been caused to you. I offer to you, Ms. Marquardt, my deepest expression of regret for all you have endured as a result of the miscarriage of justice in this case… I can't imagine what it must have been like for you to have to bear the burden of not only losing your child, Kenneth, but also to have had to deal with being convicted of killing your son... and spending 13 years in jail as a result." He ended with: “You are free to go now, ma'am."  Marquardt told reporters that her wrongful conviction “took away a good portion of my life. It took away my life with my children. It took away my ability to grieve. It really took a big chunk of my soul."²⁷

In addition to Justice Brown’s apology, Marquardt received $250,000 in compensation as a victim of Charles Smith’s fraudulent conduct.^{28 29} To this day, the precise cause of Kenneth’s death remains unknown.³⁰