SBS: Ontario: Dinesh Kumar

Tuesday, January 11, 2011

"THE NEXT DAY, MARCH 21, 1992, DR. CHARLES SMITH CONDUCTED GAUROV’S AUTOPSY AT THE HOSPITAL FOR SICK CHILDREN. THE POLICE SYNOPSIS OF THE CASE SUMMARIZED HIS FINDINGS AS FOLLOWS:

DR. SMITH FOUND EXTENSIVE HEMORRHAGING WITHIN THE BRAIN, BEHIND BOTH RETINAS AND AROUND THE SPINAL CORD.
IT WAS HIS OPINION BASED ON A GREAT DEAL OF EXPERTISE THAT THESE CRITICAL MEDICAL ABNORMALITIES HAD ALL THE EARMARKS OF INJURIES SUSTAINED AFTER AN EPISODE OF “SHAKEN BABY SYNDROME”.THIS CONDITION OCCURS WHEN AN INFANT IS PICKED UP AND SHAKEN VIOLENTLY. BECAUSE OF UNDER-DEVELOPED MUSCLES IN THE NECK AND SPINAL AREAS, THE INFANT’S HEAD IS WHIPLASHED UNCONTROLLABLY AND THE BRAIN IS LITERALLY “PING-PONGED” WITHIN THE SKULL.
THIS TRAUMA LEADS TO HEMORRHAGING WHICH, IN TURN, LEADS TO BRAIN SWELLING AND DIRE CONSEQUENCES, I.E. DEATH. AFTER THE POST MORTEM EXAMINATION, DR. SMITH CONDUCTED FURTHER TESTS TO CLARIFY HIS INITIAL DIAGNOSES AND AT THE SAME TIME RULE OUT ANY OTHER POSSIBLE ANATOMICAL CAUSE(S) FOR THE INJURIES. AFTER CONDUCTING THE TESTS, DR. SMITH SOLIDIFIED HIS PREVIOUS OPINION BY DECLARING THAT THE INJURIES WERE DEFINITELY NOT ACCIDENTAL IN NATURE AND BECAUSE OF THE ABSENCE OF EXTERNAL TRAUMA, THE INJURIES WERE CONSISTENT WITH HIS PREVIOUS FINDINGS, TO WIT: “SHAKEN BABY SYNDROME”. HE EVEN TOOK IT ONE STEP FURTHER AND EXPLAINED THAT THE DAMAGE PRESENT WAS PROBABLY THE RESULT OF CONTINUOUS SHAKING AS OPPOSED TO A SINGLE VIOLENT SHAKE.

DR. SMITH WAS UNABLE TO PINPOINT THE EXACT TIME THE INJURIES OCCURRED BASED ON PATHOLOGICAL EXAMINATION BUT SURMISED THAT A BABY WITH SUCH CRITICAL INJURIES WOULD BE UNABLE TO FEED NORMALLY AS REPORTED BY THE ACCUSED IN ALL HIS STATEMENTS TO BOTH MEDICAL AND POLICE PERSONNEL.THEREFORE, IT IS HIS CONTENTION THAT THE INJURIES MUST HAVE BEEN INFLICTED DURING THE TIME FRAME BETWEEN THE LAST FEEDING AT 12:30 A.M., AND THE TIME THE 911 CALL WAS PLACED.
DURING THIS CRUCIAL PERIOD THE ACCUSED WAS THE ONLY PERSON TO HAVE EXCLUSIVE CONTROL OF THE INFANT AND THEREFORE THE ONLY PERSON WITH EXCLUSIVE OPPORTUNITY TO CAUSE THE CRITICAL INJURIES TO THE CHILD." AFFIDAVIT: ALISON CRAIG;

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"DR. SMITH’S CONCLUSIONS WERE ENDORSED BY DR. DIRK HUYER, A PHYSICIAN WHO WAS A MEMBER OF THE SUSPECTED CHILD ABUSE AND NEGLECT PROGRAM (THE SCAN UNIT) AT THE HOSPITAL FOR SICK CHILDREN.
DR. HUYER REPORTED AS FOLLOWS: IN SUMMARY, THE CLINICAL DIAGNOSIS IN THIS CHILD WAS MOST LIKELY SHAKEN BABY SYNDROME.
DR. MCGREAL, THE STAFF NEUROLOGIST INVOLVED IN THE CHILD’S CARE AGREED WITH THIS DIAGNOSIS.
PRELIMINARY AUTOPSY RESULTS ARE CONSISTENT WITH THIS DIAGNOSIS.
IT IS A VERY CONCERNING INJURY AND TYPICALLY RESULTS FROM VIOLENT NOTICEABLE SHAKING OF THE CHILD.
NO HISTORY OF SHAKING WAS PROVIDED AND SHAKING WAS DENIED ON DIRECT QUESTIONING.
THE LACK OF HISTORY TO EXPLAIN THE CLINICAL DIAGNOSIS IS VERY CONCERNING AND COUPLED WITH THE KNOWN MECHANISM IS VERY SUGGESTIVE OF NON-ACCIDENTAL INJURY."
AFFIDAVIT: ALISON CRAIG;

SBS: Ontario: Dinesh Kumar

Jan 7 2011

Tracey Tyler Legal Affairs Reporter

From the time he set foot in Canada 20 years ago, Dinesh Kumar’s life has been a near-continuous series of ordeals.

His wife battled a brain tumour, his five-week-old son Gaurov died inexplicably and Kumar suddenly found himself charged with murder, thanks to a medical opinion from now-discredited pathologist Charles Smith that the child died from “shaken baby syndrome.”
Now Kumar, a 44-year-old immigrant from the Punjab, has received some good and bad news.
Ontario’s attorney general is conceding his conviction for criminal negligence in connection with Gaurov’s death should be quashed, which is expected to happen Jan. 17 when the case comes before the Ontario Court of Appeal.
But the Crown says it is not conceding that Kumar is “factually innocent.”
Although there is now evidence Gaurov did not die from being shaken, his death remains unexplained, Crown counsel Gillian Roberts says in a written argument, released to the media by the court on Friday.
She says the evidence in the case does not prove, as it did in the case of William Mullins-Johnson, who was wrongly convicted of murdering his niece on the basis of Smith’s testimony, that no crime was ever committed.
The Crown also says it “does not accept” criticism that shaken baby syndrome is a discredited theory.
The statement could be significant because, two years ago, the Ontario government launched a review of nearly 150 cases dating back to 1986, in which child deaths had been attributed to the syndrome.
It remains to be seen whether the court will, as James Lockyer, Kumar’s lawyer, urges in material filed with the court, “say whatever it considers appropriate to help him clear his name.”
In his written argument, Lockyer says while shaken baby syndrome was in vogue twenty years ago as an explanation for sudden child deaths, biomechanical engineering has since challenged the “science” of the syndrome and shown that shaking a baby to death is unlikely.
Engineering has shown such shaking would create neck and spinal damage and leave visible finger marks, Lockyer says.
Kumar, originally charged with second-degree murder, said he accepted a plea bargain to a lesser charge after being told by his lawyer that Smith was “like a God” and there was no way to challenge his testimony.
“We were all scared of the murder charge,” he said in an affidavit filed with the court. “So I agreed, after much discussion with my family, to plead guilty as I did. It was the hardest decision I ever had to make.”
http://www.thestar.com/news/ontario/charlessmith/article/918177--father-s-conviction-should-be-quashed-crown-says

SBS: Ontario: Dinesh Kumar

KIRK MAKIN:  Globe and Mail Update: Jan. 07, 2011

Dinesh Kumar, seen with his wife, Veena, in 2008, pleaded guilty to murder in the death of his son 1992. The Crown will drop the case against him. (Ashley Hutcheson for The Globe and Mail) 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.
http://m.theglobeandmail.com/news/national/toronto/crown-seeks-to-overturn-mans-conviction-in-his-sons-death/article1861433/?service=mobile