A Toronto couple walked free of murder charges in the death of their three-month-old child yesterday after the Ontario Court of Appeal threw out their case on grounds of excessive delay.
"The prospect of freeing someone on a charge of first-degree murder without a trial on the merits is almost unthinkable," the court conceded, before doing precisely that for Anthony Kporwodu.
It stayed a second-degree murder charge against his wife, Angela Veno, in the March 6, 1998, death of their daughter, Athena. The baby had suffered injuries that included 35 rib fractures, a lacerated liver and bruises to her head.
"This appeal brings into sharp focus the dire consequences that follow when persons charged with serious crimes are not tried within a reasonable time," the court said.
Mr. Kporwodu was charged on May 3, 1999. Ms. Veno was charged on May 15, 2000.
Mr. Justice Michael Moldaver noted that society has been deprived of a proper trial in an extremely serious crime, while the two defendants were devastated and will remain under a cloud.
Judge Moldaver said their relationship deteriorated under the strain, their other child was seized by Children's Aid officials, and Ms. Veno had an abortion to prevent them doing the same with a new baby.
Judge Moldaver, Madam Justice Eileen Gillese and Mr. Justice Russell Juriansz pinned most of the blame for the delay on Toronto pathologist Charles Smith, saying his inexplicable tardiness added two years on to a case that was relatively simple.
The work of Dr. Smith has come under increasing suspicion. Ontario Chief Coroner Barry McLellan said in an interview yesterday that by mutual agreement, Dr. Smith ceased doing autopsies in all cases as of December, 2003. He said that a thorough review of more than 50 cases Dr. Smith has conducted involving deaths at Toronto's Hospital for Sick Children is well under way.
However, Cindy Wasser, a lawyer for Angela Veno, said officials must do far more to investigate the hundreds of cases Dr. Smith was involved in over the years. "No matter what way you look at it, he has caused miscarriages of justice," she said.
"The accused and the public are entirely dependent on the correctness of these experts," added John Rosen, another lawyer for Ms. Veno. "We have to be sure this evidence is good evidence."
Ontario Superior Court Judge Brian Trafford first stayed the murder charges on June 23, 2003. At the time, he faulted Dr. Smith, Crown prosecutors, Ontario's deputy chief coroner, homicide investigators and a lawyer for the coroner's office.
However, Judge Moldaver said that Judge Trafford overstated the case, in particular, his allegations of duplicity, obstruction and bad faith against Crown counsel Rita Zaied and coroner's lawyer Denise Dwyer. This error ended up causing several months of delay in itself, Judge Moldaver said, because new Crown counsel had to be briefed.
However, Judge Moldaver said he did not accept a claim by prosecutors and police that developments involving Dr. Smith's competence were unforeseen. He said it was no mystery that two of Dr. Smith's murder cases were in disarray. Still, he said, their conduct fell short of negligence.
Many of the worst problems in the case radiated from a shocking finding Dr. Smith revealed on July 20, 1999, more than a year after Athena's death: a liver injury sustained within 12 hours of her death.
The news changed crucial Crown theories of timing, and directly implicated Ms. Veno in the murder for the first time. Dr. Smith was asked to confirm his finding in writing, yet, "For reasons that remain a mystery to this day, it took Dr. Smith until April 4, 2000, to produce a 1½ page addendum containing the new information," Judge Moldaver said.
An Ontario prosecutor's staunch refusal to co-operate with defence lawyers at a high-profile murder trial was "absolutely mind-boggling," an Ontario Court of Appeal judge said yesterday.
Mr. Justice Michael Moldaver made the remark during an appeal by the Crown of murder charges being thrown out because of constitutionally unreasonable delays that lasted almost six years.
Anthony Kporwodu and Angela Veno were charged after their three-month-old daughter, Athena, was found dead in March of 1998. The baby suffered injuries that included 35 rib fractures, a lacerated liver and bruises to her head.
In staying the charges against the couple in 2003, Mr. Justice Brian Trafford of the Ontario Superior Court cited numerous abuses by the Crown, police and two coroners.
"Would you describe the behaviour by the Crown as vexatious . . . or just silly?" Judge Moldaver yesterday asked Crown counsel Michal Fairburn, who is arguing the appeal for the Crown.
The judge said that the attitude of the prosecutor in the trial, Rita Zaied, was "to just keep going as if there was all the time in the world: 'We'll just fight everything.' "
Ms. Fairburn conceded that relations between both sides in the case were unnaturally antagonistic, but she said it was unfair for Judge Trafford to have blamed almost every delay on the Crown.
However, Judge Moldaver persisted, saying that Ms. Zaied was determined not to engage in the sort of mid-trial talks with defence lawyers that are customary and vital to help narrow and focus legal issues.
"This is what bothered Justice Trafford, quite frankly," he said. "There appears to have been no co-operation whatsoever with very responsible defence counsel to narrow down the issues here."
Ms. Zaied was ultimately removed from the case by her superiors because Judge Trafford's criticisms had "rendered her ineffective," Ms. Fairburn said.
Defence counsel Marlys Edwardh told the judges yesterday that the trial went off the rails because Ms. Zaied "put her head in the sand" and failed to heed the characteristic warning signs of a possible miscarriage of justice.
"When she had a big problem, she didn't confront it in a professional way," Ms. Edwardh said.
She said the big problem was pediatric pathologist Charles Smith, whose credibility came into serious question early in the case. At a time when Dr. Smith was conveying findings from Athena's autopsy, his reputation was under severe media attack over errors, biased and false findings in other baby-death cases.
Ms. Edwardh said that a full year after Athena died and Mr. Kporwadu was charged, Dr. Smith suddenly gave new details about the timing and extent of Athena's injuries to Ms. Zaied
Ms. Edwardh said that Ms. Zaied advised Toronto Police homicide officers they should charge Ms. Veno with murder, yet they declined to do so unless Dr. Smith produced a written report with his new findings.
"The refusal of the officers is remarkable," Ms. Edwardh said. "It discloses a kind of concern I think is highly unusual."
She said that any professional prosecutor would immediately have sought out an expert to review Dr. Smith's findings, and then promptly disclosed the growing problem to the defence. Instead, Ms. Edwardh said, Ms. Zaied stonewalled on disclosing vital information to the defence.
"It's a no-brainer, frankly," Ms. Edwardh said. "You don't sit on it."
Instead, she said, Ms. Zaied waited many months, while Dr. Smith dithered over putting his new findings into writing. When Ms. Zaied finally asked a U.S. pathologist to review Dr. Smith's findings, Ms. Edwardh said, it resulted in a further delay of seven months.
Ontario prosecutors and coroners played dirty pool to try to obscure gaping holes in their case against a couple accused of killing their baby, lawyers for the pair alleged yesterday.
Wrapping up a fiercely contested hearing in the Ontario Court of Appeal, defence counsel John Rosen accused Crown prosecutor Rita Zaied of offering him "an unconscionable deal" partway through the 2003 trial of Anthony Kporwadu and Angela Veno, who were accused of first-degree murder in the death of their three-month-old daughter.
Mr. Rosen alleged that Ms. Zaied offered the defence team access to important files they had been seeking, but only if the defence admitted in court that it had been wrong to use legal motions to procure the records.
Such an admission would have placed the blame for a yearlong delay on the shoulders of the defence. His voice booming with indignation, Mr. Rosen told the appellate judges that he refused the offer.
"Ms. Zaied knew we were getting close to this stuff," Mr. Rosen said. "What did she do? She called us into a boardroom to make an unconscionable offer. . . . The prosecution knew that what we were after was relevant and important. Instead of assisting us as an officer of the court, she obstructed our every effort along the way."
The Crown is appealing the 2003 decision by Mr. Justice Brian Trafford of the Ontario Superior Court to stay the murder charges against Mr. Kporwadu and Ms. Veno on the basis of unconstitutional delays totalling almost six years.
The couple were charged after their daughter, Athena, was found dead in March of 1998. The baby had suffered injuries that included 35 rib fractures, a lacerated liver and bruises to the head.
In staying the charges, Judge Trafford cited numerous abuses by the Crown, police and two coroners.
Mr. Rosen said yesterday the records the defence had been trying to wrest from the Crown pertained to an internal review by the Ontario Coroner's Office of previous autopsies conducted by pediatric pathologist Dr. Charles Smith, whose credibility was in question at the time.
"I have done over 300 homicides, but I had never had one with Dr. Smith," Mr. Rosen said. "I don't know why that is -- just good luck, I guess. But if he had said that the sky was blue today, I'd have to go out and check it, given his record."
Mr. Rosen told the court that Ms. Zaied's backroom offer followed many months in which she had played cat-and-mouse with the defence over the records it wanted.
"This Crown attorney stuck her head in the sand and obstructed us on every possible thing, and she was aided and abetted by counsel for the Ontario Coroner's Office, Denise Dwyer," he said.
Mr. Rosen also alleged that OCO officials had merely pretended to conduct a review of Dr. Smith's previous cases. He said that after the defence subpoenaed deputy chief coroner James Cairns to the murder trial to testify about the OCO's purported review, Dr. Cairns had to cobble together documents that would resemble a genuine review.
"There never was a review," Mr. Rosen alleged.
Crown lawyer Michal Fairburn told the court yesterday that there was "nothing sneaky or bad" about the prosecution. "This is a classic case of where there is smoke, there is only smoke," she said.
Appeal court judges Michael Moldaver, Eileen Gillese and Russell Juriansz have reserved judgment in the case.
An Ontario Superior Court judge who threw out first-degree murder charges against a Toronto couple accused of killing their three-month-old daughter "utterly overlooked" society's interest in bringing them to trial, an appeal court has been told.
Justice Brian Trafford paid "nothing more than lip service" to well-established legal principles for determining whether a trial delay is unreasonable, Crown counsel Michal Fairburn told a three-judge panel of the Ontario Court of Appeal.
He also misused the most powerful Charter weapon at his disposal - the ability to stay criminal charges - to punish the Crown for conduct he did not like, she said.
Watching from the back of the courtroom yesterday as the Crown tried to resurrect its case were Anthony Kporwodu and Angela Veno, whose daughter Athena died on March 6, 1998.
An autopsy conducted by controversial pediatric pathologist Dr. Charles Smith found she had 32 rib fractures, brain injuries, a lacerated liver and a broken toe.
In throwing out charges in June 2003, Trafford, a former high-ranking Ontario prosecutor, said the conduct of the Crown, the Ontario coroner's office and Toronto police deprived the couple of an opportunity to demonstrate their innocence for an "unconscionable" 70-month period, from the time of Athena's death to when the case was finally expected to go to trial.
Their loss in human terms was almost "palpable," he added. They not only lost their daughter. After a homicide investigation commenced, their toddler Julius was seized by the Children's Aid Society and ultimately sent to live with his paternal grandparents in Ghana.
Veno became pregnant again but ended up having an abortion after a CAS worker told her that child would likely also be seized.
The pair was left unable to resolve their grief, Trafford said.
The Crown appealed his ruling and a hearing, which is slated for three days, began yesterday.
The case is raising questions about how courts should assess whether a trial delay is unreasonable, a sensitive subject for Ontario's justice system since the notorious 1990 Askov case led to the wholesale staying of thousands of charges.
It's also focusing on the conduct of Smith, who played a critical role in the case and whose work in other criminal cases has been questioned.
In this case, Trafford said Smith's nearly two-year delay in completing an autopsy report was not only "shocking" in its own right but led to the unauthorized cremation of Athena's remains, contrary to her parents' wishes. They found out when the crematorium called and asked them to come and pick up an urn containing her ashes, Trafford noted.
He also had harsh words for Crown attorney Rita Zaied, saying she put up an "unprincipled" resistance to requests from the couple's lawyers for reports from other autopsies Smith had performed.
Just before Smith was about to take the witness stand at the couple's preliminary hearing in 2001, murder charges against two other women accused of killing their children were withdrawn in the face of concerns about his work, the court was told yesterday.
One was Louise Reynolds, of Kingston, Ont., who was charged with killing her seven-year-old daughter, Sharon, in 1997. The charge was withdrawn after a leading expert on bone marks contradicted Smith's findings and supported Reynolds' claim that her daughter was killed by a pit bull.
Although Trafford found Smith was in a position to offer a preliminary opinion on Athena's cause of death by May 1998, his final report was not delivered until the spring of 2000 when he was under threat of being called to court to explain the delay, the court was told yesterday.
The timing was not "ideal" and while the Crown did everything it could to get Smith to deliver his report it bears some blame for the delay, Fairburn conceded. But while the overall delay was "unfortunate," it was not unreasonable, she told justices Michael Moldaver, Eileen Gillese and Russell Juriansz.
Trafford said the couple had been waiting for Smith's report in order to determine whether they should arrange for a second autopsy. That, in turn, is why they wanted their daughter's body preserved.
The hearing continues.
The Crown knew as early as the summer of 1999 that a prominent pathologist and key witness against a Toronto couple suspected of killing their baby was tainted by concerns about his competence, the Ontario Court of Appeal has been told.
Two to three years of court time could have been saved if the Crown had confronted the controversy around Dr. Charles Smith, lawyer Marlys Edwardh told the court yesterday.
"Instead, this was a case where Crown counsel put her head in the sand," she said.
Smith was the key witness in the prosecution of Anthony Kporwodu and Angela Veno, who were charged with first-degree murder in the March 6, 1998 death of their 3-month-old daughter Athena.
After more than five years of inching its way through the justice system, the case came to an abrupt end on June 23, 2003, when Justice Brian Trafford threw out the charges. The Superior Court judge said the conduct of the Crown, Toronto police and Ontario coroner's office caused irreparable prejudice to the couple and meant they would have to endure an "unconscionable" 70-month delay before getting a chance to prove their innocence in court.
The reasons for the delay included assistant Crown attorney Rita Zaied's "unprincipled" resistance to defence requests for information about other cases involving Smith, he said. The Crown is appealing his ruling and asking the appeal court to reinstate the charges.
Crown lawyer Michal Fairburn told the court earlier this week that the Crown's office was not aware of potentially widespread problems with Smith's work until partway through Kporwodu and Veno's preliminary hearing in 2001, when murder charges against two other women accused of killing their children were withdrawn because of concerns about his competence.
That development led the prosecution to ask for an adjournment in the preliminary hearing. Before going any further in the case, the Crown wanted to get an independent expert to review Smith's conclusions about what caused Athena's death. The case was delayed another nine months while a pediatric pathologist from the United States was retained.
Although the Crown accepted responsibility for the delay when the case was before Trafford, it has changed its position.
But Edwardh, who represents Kporwodu, said the notion that Zaied didn't know about concerns over Smith's work is "untenable" - given how it was the subject of gossip among lawyers and the focus of an investigation by CBC's the fifth estate.
Most striking of all, she argued, was a refusal in July 1999 by Det. Sgt. Matt Crone, a senior officer investigating Athena's death, to charge Kporwodu and Veno with murder based on Smith's verbal opinion alone. His refusal came in July 1999, around the time charges against a Peterborough woman accused of killing her baby were withdrawn.
In his ruling, Trafford noted that an unauthorized cremation took place at the end of March 1998, because the regional coroner didn't revoke a coroner's certificate that released Athena's body. He found the state had a duty to inform her parents that her remains could be held in the morgue, but the information was never passed along.
But yesterday, Justice Michael Moldaver of the appeal court said blaming the state seems to be "stretching" it. Athena's body was clearly in her parents' control at the time of the cremation, which must have occurred either because her parents didn't express their wishes clearly or the funeral home didn't follow instructions, he said.
If they were really concerned about preserving it, "all they had to do was retain a lawyer."
Edwardh said the accused couldn't afford to hire a lawyer.