Crown seeks to overturn man’s conviction in his son’s death
KIRK MAKIN JUSTICE REPORTER — Globe and Mail Update
Friday, Jan. 07, 2011 08:08PM EST
Later this winter, Dinesh Kumar will finally get to proclaim his acquittal in the death of his baby son almost two decades ago by posting a notice at the Hindu temple he attends. “They should know that I’m not a criminal,” the 44-year-old Toronto man said.
Mr. Kumar is full of optimism after learning that the Ontario Crown is moving to overturn his 1992 conviction for the death of his five-week-old son, Gaurov, as a result of doubts that have surfaced concerning medical testimony used against him.
In a court document unsealed Friday, Crown counsel Gillian Roberts said that changes in medical knowledge about infant brain injuries have seriously undermined Mr. Kumar’s conviction.
She said that in view of medical controversy that surrounds the notion of shaken baby syndrome, “no reasonable jury could convict the appellant of any form of homicide in relation to his son, Gaurov.”
At a court hearing to be held in the coming weeks, the Crown will formally ask that Mr. Kumar be acquitted of criminal negligence causing death.
After the contents of the Crown submission were unsealed, Mr. Kumar was ecstatic that his ordeal is near an end. “I’m feeling great,” he said in an interview. “I can’t explain how happy I am. I have suffered so much. I thought I would die with this criminal record, but now I know that it’s clear.”
Mr. Kumar said that his family and friends always believed in his innocence, but some members of his community were less convinced. “They think that when you get blamed for this kind of crime, everybody points at you as if you need to be punished,” he said.
The Kumar case was among 20 cases Mr. Justice Stephen Goudge scrutinized at an inquiry into errors and botched autopsies conducted by Charles Smith during his two decades as Ontario’s top forensic pathologist.
James Lockyer and Alison Craig, lawyers for the Association in Defence of the Wrongly Convicted, received permission last year to reopen the case. They maintained that Dr. Smith’s theory – that baby Gaurov was a victim of shaken baby syndrome – was scientifically unsustainable.
Mr. Kumar had emigrated from India just two years prior to the death of his baby. 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.
The case stood in marked contrast to many other wrongful conviction cases because of the fact that Mr. Kumar had pleaded guilty. He insisted Friday – and in court affidavits – that he believed he had no hope of counteracting damning testimony Dr. Smith was set to deliver for the Crown.
The temptation to plead guilty was enhanced by an extraordinarily lenient sentence offered by the Crown. Mr. Kumar received 90 days in jail for criminal negligence causing death – a far cry from the term of life imprisonment he had faced for second-degree murder.
Ms. Roberts said it will never be known whether Mr. Kumar is genuinely innocent in the death, but his legal culpability is in serious doubt.
“In short, the justice system has worked exactly as it should in this case,” she said in the court document. “It accepted a valid guilty plea in a case based on valid current medical knowledge. It has now acted to respond when the prevailing understanding of that medical knowledge has changed and the appellant has explained his guilty plea.
“This case is not like other Dr. Smith cases where significant mistakes were made,” she added. “To the contrary, the medical evidence on which the case was based in 1992 reflected the prevailing views of the day. In 2010, evidence has evolved so that what was viewed as diagnostic in 1992 is now viewed only as strongly suspicious, and we can no longer say why baby Gaurov died.”
Mr. Kumar and his wife decided against having any more children after Gaurov died because they could not stand the thought of losing another child.