Guilty plea a miscarriage of justice

By ALAN SHANOFF, Toronto Sun

Last Updated: January 29, 2011 3:36pm

What can we learn from the recent acquittal of Dinesh Kumar?

He is the father who was charged with the second-degree murder of his five-week-old baby in 1992.

He chose to plead guilty to a charge of criminal negligence causing death as part of a plea bargain that included a 90-day sentence to be served on weekends.

Had he been guilty of murder, it would have been the deal of the century. But he wasn’t.

So what could possibly motivate a father to falsely accept criminal responsibility for the death of a child and what can we do to prevent such miscarriages of justice?

Kumar had another child, a one-year-old who had been taken in protective custody following the death of his sibling.

Incredibly, part of the deal was an assurance the child would be returned after Kumar completed serving his sentence.

Think about that for a minute.

Plead guilty in exchange for the return of a child, or plead not guilty and risk losing your child indefinitely.

In order for a confession to be admissible it must be voluntary “in the sense that it has not been obtained … either by fear or prejudice or hope of advantage exercised or held out by a person in authority”.

Suppose Kumar confessed to causing his infant’s death after being threatened with the loss of his one-year-old son.

Surely such a confession would have been deemed involuntary and would have been inadmissible at any trial. So why, then, was it permissible to use the same inducement to extract a guilty plea?

At the same time, isn’t it rather odd that a murder charge with an automatic life sentence upon conviction would be bartered down to a criminal negligence charge with an agreed 90-day sentence?

If the prosecution had sufficient evidence to justify a murder charge, how could it agree to a criminal negligence charge and a 90-day sentence?

And how could it agree to return the one-year-old to a murderer?

So, either the initial charge wasn’t warranted or the prosecution was willing to punish a baby murderer with a slap on the wrist and permit him to regain custody of a toddler.

This doesn’t make much sense to me.

But even if the prosecution’s position was deeply flawed, why wouldn’t the trial judge have inquired into the propriety of the deal?

Shouldn’t the trial judge have made probing inquiries into whether any improper inducements or threats had been made to seal the deal?

Apparently, Kumar also pled guilty because Dr. Charles Smith was the star prosecution witness and it would have been impossible to challenge his expert opinion on the cause of the infant’s death.

We now know Smith had no training in forensic pathology. But shouldn’t that have been known or easily ascertainable in 1992?

In 1991, Justice Patrick Dunn acquitted a babysitter charged with manslaughter in the death of a 16-month-old child.

In the course of giving his reasons for acquittal, Justice Dunn was highly critical of Smith, pointing out that he wasn’t familiar with the scientific literature, failed to conduct a thorough investigation, gave unscientific evidence and was dogmatic in the presentation of his evidence.

So why would Smith have been considered “like a God” — reportedly even by Kumar’s own lawyer — when Kumar made his deal in 1992?

I don’t blame Kumar for having pled guilty.

Who wouldn’t have done the same in order to get his son back, particularly when faced with the incriminating evidence of an apparently God-like expert?

But if we want to prevent innocent people from pleading guilty or confessing to crimes they haven’t committed we need to examine this case carefully and learn from our mistakes.

alan.shanoff@sunmedia.ca

Source:

http://www.torontosun.com/comment/columnists/alan_shanoff/2011/01/28/17074256.html